No. 13-14-00725-CV ______________________________________________________

Court of Appeals

for the Thirteenth Judicial District 

Corpus Christi – Edinburg, Texas ______________________________________________________

Dos Republicas Coal Partnership, 

Appellant, 

v.

David Saucedo as Floodplain Administrator and 

County Judge of the Maverick County Commissioners Court 

and the Maverick County Commissioners Court, 

Appellees. ______________________________________________________

REPLY BRIEF OF APPELLANT ______________________________________________________

On appeal from the 293rd Judicial District Court

Maverick County, Texas

Cause Number 14-03-29340-MCV 

______________________________________________________

Leonard Dougal

State Bar No. 06031400 

Mallory Beck

State Bar No. 24073899 

JACKSON WALKER L.L.P.

100 Congress 

Suite 1100 

Austin, Texas 78701 

ldougal@jw.com 

T: (512) 236-2233 

F: (512) 391-2112 

Bill Cobb

State Bar No. 00796372 

Matthew Ploeger 

State Bar No. 24032838 

Jenny L. Smith

State Bar No. 24079357 

COBB & COUNSEL

401 Congress Avenue 

Suite 1540 

Austin, Texas 78701 

bill@cobbxcounsel.com 

(512) 693-7570

(512) 687-3432 – Facsimile

Attorneys for Appellant Dos Republicas Coal Partnership

ACCEPTED

13-14-00725-cv

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/23/2015 9:14:46 AM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/23/2015 9:14:46 AM CECILE FOY GSANGER Clerk
ii 

TABLE OF CONTENTS

Table of Contents ................................................................................................... ii

Index of Authorities.............................................................................................. iv

Introduction ............................................................................................................. 1

Argument ................................................................................................................. 3

I. Appellees’ over-expansive view of the Ordinance’s purpose

does not alter the conditions for granting a permit................................. 3

A. Appellees’ interpretation of the Ordinance, which confers

standardless discretion on the Floodplain Administrator,

would render the Ordinance unconstitutionally vague............... 4

B. The Ordinance’s statement of purpose does not authorize

the Floodplain Administrator to regulate surface coal

mining or water quality, which are both regulated

exclusively by state agencies. ........................................................... 9

1. Surface coal mining is regulated exclusively by the

Railroad Commission.............................................................. 9

2. The Ordinance does not and cannot regulate flood

water quality or contaminants. ............................................12

II. As a matter of law, DRCP’s Permit Application satisfied the

conditions to receive a permit...................................................................17

A. Appellees’ assertions with respect to Padilla’s testimony

are based on misconceptions about what a permit

application must show.....................................................................20

1. DRCP was not required to eliminate pre-existing

dangers from flooding...........................................................21

2. The Ordinance does not address water quality or

“contaminants.”......................................................................25

B. Appellees waived factor (d), the compatibility of the

proposed use with existing and anticipated development........26

III. The duty to grant the permit is not discretionary where, as here,

the Ordinance’s conditions are met. ........................................................29
iii 

IV. The Floodplain Administrator’s failure to provide any written

explanation of his decision evidences an abuse of discretion and

is arbitrary and capricious. ........................................................................31

A. The requirement of a written explanation is inherent in

the concept of judicial review.........................................................31

B. There is no evidence of any [climate] changed

circumstances that justify the disparate treatment of the

1998 and 2013 permit applications.................................................33

V. Appellees’ novel contention that the Floodplain

Administrator’s due process violation was “remedied” by

instituting an action for an extraordinary writ is without merit.........35

Prayer......................................................................................................................36

Certificate of Compliance ....................................................................................38

Certificate of Service .............................................................................................38
iv 

INDEX OF AUTHORITIES

CASES

Bradley v. State ex rel. White, 990 S.W.2d 245 (Tex. 1999) ...................... 6, 29, 30

City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (Tex. App.—

Dallas 1992, writ denied) .................................................................................34

City of Dallas v. TCI W. End, Inc., No. 13-0795, 2015 WL 2147986 (Tex. May 8, 

2015) ...................................................................................................................... 5 

City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (Tex. App.—Austin 1993, 

writ denied)........................................................................................................32

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)...........................................18

City of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597 

(Tex. App.—San Antonio 2013, pet. denied) ................................... 11, 12, 17

City of W. Lake Hills v. Westwood Legal Def. Fund, 598 S.W.2d 681 (Tex. Civ. 

App.—Waco 1980, no writ) .............................................................................14

Coffee City v. Thompson, 535 S.W.2d 758 (Tex. Civ. App.—Tyler 1976, writ 

ref’d n.r.e.)............................................................................................................ 7 

Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489

(Tex. 1993).............................................................................................. 11, 12, 17

Hager v. Romines, 913 S.W.2d 733 (Tex. App.—Fort Worth 1995, no writ)...18

Jackson v. Neal, No. 13-07-00164-CV, 2009 WL 140507 (Tex. App.—Corpus 

Christi-Edinburg Jan. 22, 2009, no pet.).........................................................27

Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014)................................... 6 

Lee v. GST Transp. Sys., LP, 334 S.W.3d 16 (Tex. App.—Dallas 2008, pet. 

denied) .................................................................................................................. 6 
v 

Lindig v. City of Johnson City, No. 03-11-00660-CV, 2012 WL 5834855 (Tex. 

App.—Austin Nov. 14, 2012, no pet.) .............................................................. 7 

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006)....................................18

Mack v. Moore, 669 S.W.2d 415 (Tex. App.—Houston [1st Dist.] 1984, no 

writ).....................................................................................................................18

Methodist Hosps. of Dallas v. Mid–Century Ins. Co. of Tex., 259 S.W.3d 358 

(Tex. App.—Dallas 2008, no pet.)..................................................................... 6 

Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2013).......................................................27

Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (Tex. App.—Amarillo 

2014, no pet.)..................................................................................................7, 29

Perry v. S.N., 973 S.W.2d 301 (Tex. 1998) ...........................................................33

R.R. Comm’n of Texas v. Coppock, 215 S.W.3d 559 (Tex. App.—Austin 2007, 

pet. denied).........................................................................................................10

Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (Tex. 2013)

................................................................................................................. 10, 12, 17

Starr County v. Starr Industrial Services, Inc., 584 S.W.2d 352 (Tex. App.—

Austin 1979, writ ref’d n.r.e.).................................................................... 27, 28

Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554 S.W.2d 924 (Tex. 

1977) ........................................................................................................... 6, 8, 29

Texas Health Facilities Commission v. Charter Medical-Dallas, Inc., 665 S.W.2d 

446 (Tex. 1984)....................................................................................................32

Walker v. Hitchcock Indep. Sch. Dist., No. 01-11-00797-CV, 2013 WL 3771302 

(Tex. App.—Houston [1st Dist.] July 16, 2013, no pet.)...............................34
vi

STATUTES

TEX. NAT. RES. CODE § 134.002 ............................................................................... 9 

TEX. NAT. RES. CODE § 134.020 .............................................................................10

TEX. WATER CODE § 16.312....................................................................................16

TEX. WATER CODE § 16.3145..................................................................................16

TEX. WATER CODE § 26.011....................................................................................13

TEX. WATER CODE § 26.023....................................................................................13

TEX. WATER CODE § 26.171....................................................................................14

TEX. WATER CODE § 26.172....................................................................................14

TEX. WATER CODE § 26.176....................................................................................14

TEX. WATER CODE § 26.180....................................................................................14

OTHER AUTHORITIES

National Flood Insurance Program: Program Description, Fed. Emer. 

Mgmt. Agency, at 5 (Aug. 1, 2002), available at

http://www.fema.gov/media-library-data/20130726-1447-20490-

2156/nfipdescrip_1_.pdf..................................................................................23

Texas Nonpoint Source Management Program, TCEQ/TSSWCB joint 

publication SFR-68/04, at 93 (2005)................................................................22

RULES

TEX. R. APP. P. 33.1.................................................................................................26

TEX. R. APP. P. 43.2.................................................................................................36

TEX. R. EVID. 801.....................................................................................................34
1 

TO THE HONORABLE COURT OF APPEALS:

Appellant Dos Republicas Coal Partnership (“DRCP”) respectfully 

submits this Reply Brief. 

INTRODUCTION

To understand why the Floodplain Administrator’s denial of DRCP’s 

permit application was improper, the Court need only review the testimony 

of the Floodplain Administrator. Judge Saucedo testified, repeatedly, that 

he would never grant a permit allowing mining in the floodplain, and there 

was nothing DRCP could do (or demonstrate) that would change his mind. 

Burdened with this testimony, Appellees contort the purpose and structure 

of the Ordinance to justify his foreordained rejection. 

Appellees’ arguments rest on the mistaken assertion that the 

Floodplain Administrator is not constrained by the Ordinance’s ten 

mandatory factors for evaluating permit applications. Although the 

Floodplain Administrator testified that the permit application must be 

measured against the ten enumerated factors, Appellees only now assert that 

the Ordinance’s general statement of purpose, separate and apart from the 

operative provisions of the Ordinance, gives the Floodplain Administrator 

broad power to reject otherwise satisfactory permit applications based on his 
2 

judgment as to the “best interests of the county.” But the Ordinance’s 

general statement of purpose simply does not (and cannot) give the 

Floodplain Administrator a general police power beyond the limits of the 

operative provisions of the Ordinance itself. This is especially true where, 

as here, he does so with no explanation or evidence to support his diktat. 

Appellees’ interpretation of the Ordinance would give the Floodplain 

Administrator boundless, limitless, and standardless discretion to veto 

projects that he disfavors, untethered from the express conditions for issuing 

permits that are imposed by the Ordinance. Indeed, Appellees’ erroneous 

interpretation would render the Ordinance unconstitutionally vague and 

subject to arbitrary and capricious enforcement. It therefore must be 

rejected. 

Further, Appellees’ interpretation and corresponding arrogation of 

power would render the Ordinance preempted by state law and regulations, 

which exclusively regulate both surface coal mining and the discharge of 

water from mining operations. It is undisputed that DRCP has received all 

relevant permits from all relevant state agencies for its surface coal mining 

operations, but Appellees wish to second-guess and override the authority 
3 

of these regulatory agencies because they disagree with the expert decisions 

those agencies have made.

Appellees’ attempts to shoehorn his assumption of veto power into the 

ten enumerated factors themselves fairs no better. Appellees labor under a 

misconception of what the Ordinance requires of applicants. Contrary to 

Appellees’ assumptions, permit applicants are not required to demonstrate 

that the proposed use will prevent flooding. At most, the application should 

demonstrate that the proposed use will not excessively increase the dangers 

of flooding. The Ordinance recognizes that flooding will occur regardless of 

the measures taken by the government or by private landowners. Here, the 

uncontroverted evidence is that Appellant’s mining activities will not 

increase the dangers of flooding, but in fact, that they will actually reduce 

the risks. Thus, Appellant’s permit application demonstrates prevention 

efforts far beyond what the Ordinance requires.

ARGUMENT

I. Appellees’ over-expansive view of the Ordinance’s purpose does not 

alter the conditions for granting a permit.

Appellees’ brief is based on the faulty premise that the Floodplain 

Administrator may alter the conditions for granting or denying a permit 
4 

based on his over-expansive understanding of the purpose of the Ordinance. 

Appellees rely upon article 4, section C(2) of the Ordinance, which provides: 

“Approval or denial of a Development Permit by the Floodplain 

Administrator shall be based on all of the provisions of this ordinance and 

the following relevant factors.” 1 RR, Exhibit 5, Article 4, Section C(2) [Tab 

3]. Appellees’ assertion that the admonition to consider “all provisions” 

gives the Floodplain Administrator unfettered, standardless discretion is 

beyond farcical: this interpretation would render the Ordinance 

unconstitutionally vague and invalid. Further, this interpretation (and the 

Floodplain Administrator’s application of it here) conflicts with the 

exclusive authority granted to the RRC and TCEQ by state law and, thus, is 

preempted. 

A. Appellees’ interpretation of the Ordinance, which confers 

standardless discretion on the Floodplain Administrator, 

would render the Ordinance unconstitutionally vague.

The model ordinance adopted by Maverick County provides ten 

specific factors against which a permit application must be judged. It is 

through an even-handed application of these standards that the policy goals 

behind the Ordinance are achieved. That is, the policy goals are mediated

by and through the ten expressly enumerated factors. But the policy goals 
5 

themselves do not create an additional, ill-defined, omnibus factor that the 

Floodplain Administrator may consider, which would make the express 

factors immaterial and superfluous. City of Dallas v. TCI W. End, Inc., No. 13-

0795, 2015 WL 2147986, at *2 (Tex. May 8, 2015) (“We must avoid adopting 

an interpretation that “renders any part of the statute meaningless.’”) 

(quoting Crosstex Energy Servs, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.

2014)). If Appellees were correct, then there would be no need for any statute 

or ordinance to provide requirements and factors; the statute or ordinance 

could simply state some general policy goals and administrators could then 

decide how best to accomplish those goals. But that, of course, is not how 

the rule of law works. 

Appellees’ assertion is truly remarkable. They maintain that an 

administrator may ignore the operative standards enumerated in the 

ordinance in favor of their own interpretation of the ordinance’s “purpose” 

untethered to the actual requirements and factors mandated in the 

ordinance. To the contrary, the Ordinance’s purpose is mediated through 

its operative provisions; it does not add to them. And “[e]ven if we liberally 

construe a statute to achieve its purposes, we may not enlarge or alter the 

plain meaning of its language.” Lee v. GST Transp. Sys., LP, 334 S.W.3d 16, 
6 

20 (Tex. App.—Dallas 2008, pet. denied); Methodist Hosps. of Dallas v. Mid–

Century Ins. Co. of Tex., 259 S.W.3d 358, 360-61 (Tex. App.—Dallas 2008, no 

pet.). Nor will a court “ignore the words’ common meanings to achieve a 

purpose or object that is ambiguous at best.” Jaster v. Comet II Constr., Inc., 

438 S.W.3d 556, 569 (Tex. 2014). 

By asserting that the Floodplain Administrator may rely on the general 

statement of purpose of the Ordinance to deny a permit, Appellees are 

asserting that the Floodplain Administrator’s discretion is not limited to the 

standards set forth in the operative provisions of the Ordinance, but, rather, 

on unspecified and unknowable factors of the Floodplain Administrator’s 

choosing. As the Texas Supreme Court has explained, this sort of 

standardless discretion “leav[es] a situation ripe for ‘resolution on an ad hoc

and subjective basis, with the attendant dangers of arbitrary and 

discriminatory application.’” Bradley v. State ex rel. White, 990 S.W.2d 245, 

253 (Tex. 1999) (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972));

Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554 S.W.2d 924, 928 (Tex. 

1977) (“A vague law impermissibly delegates basic policy matters to 

policemen, judges, and juries for resolution on ad hoc and subjective basis, 

with the attended [sic] dangers of arbitrary and discriminatory 
7 

applications.” (quoting Grayned, 408 U.S. at 109); Pak-a-Sak, Inc. v. City of 

Perryton, 451 S.W.3d 133, 137 (Tex. App.—Amarillo 2014, no pet.) (“That is, 

[an ordinance] may not be so vague and standardless as to leave a governing 

body free to decide, without any legally fixed guidelines, what is prohibited 

in each particular case.”); Lindig v. City of Johnson City, No. 03-11-00660-CV, 

2012 WL 5834855, at *5 (Tex. App.—Austin Nov. 14, 2012, no pet.) (mem. op.) 

(“[T]he seemingly boundless discretion vested in the Building Official to 

interpret and apply the term [‘substantial work’] invites arbitrary and 

discriminatory application.”); Coffee City v. Thompson, 535 S.W.2d 758, 763 

(Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) (“An ordinance leaving the 

question of issuing or denying building permits to the arbitrary discretion 

or determination of the city secretary without any rule or standard to follow 

is invalid.”). 

Here, the Floodplain Administrator repeatedly testified there was 

nothing DRCP could do to satisfy him and convince him to grant a permit. 

1 RR, Exhibit 9 at 28:12-14, 29:21-25, 39:10-14. He testified unequivocally that 

he would never approve its application for mining operations in the 

floodplain regardless of what the permit application established. He further 

testified that he based this position on his personal experience and his 
8 

determination as to what was in the best interests of the county. But the 

Ordinance does not empower him to ignore the standards expressly 

enumerated in the operative provisions of the Ordinance. 

In sum, the statement of purpose does not give the Floodplain 

Administrator license to override the applicable language of those operative 

provisions or the enabling statute. It cannot add to the requirements for 

obtaining a permit. Otherwise, the operative provisions of the Ordinance 

are meaningless because the statement of purpose gives the Floodplain 

Administrator the power to deny or grant permits without respect to the 

express, enumerated factors. The purpose of the Ordinance is served by the 

express factors mandated in the Ordinance; the statement of purpose does

not give rise to supernumerary and superordinate power to deny permits 

the Floodplain Administrator deems not in the county’s best interests. As 

the Texas Supreme Court has explained, “[w]e adhere to the settled principle 

that statutory delegations of power may not be accomplished by language 

so broad and vague that persons ‘of common intelligence must necessarily 

guess at its meaning and differ as to its application.’” Texas Antiquities 

Comm. v. Dallas Cnty. Cmty. Coll. Dist., 554 S.W.2d 924, 928 (Tex. 1977)

(quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926)). 
9 

B. The Ordinance’s statement of purpose does not authorize the 

Floodplain Administrator to regulate surface coal mining or 

water quality, which are both regulated exclusively by state

agencies. 

Even if Appellees’ arrogation of a general police power could be 

countenanced, their interpretation and application of the Ordinance would 

render it preempted by state statutes and regulations of surface coal mining 

and water quality. Here, the Floodplain Administrator’s purported bases 

for denying the permit are preempted by state statutes and regulations. 

1. Surface coal mining is regulated exclusively by the 

Railroad Commission. 

The Floodplain Administrator testified that he would never approve a 

permit for mining operations in the floodplain based on his “personal 

experiences” and determination that mining in the floodplain is not in the 

“best interests of the county.” But the Texas Natural Resources Code grants 

the Railroad Commission exclusive jurisdiction to regulate the operation 

and location of surface coal mines. TEX. NAT. RES. CODE § 134.002(5) (“[T]his 

state wishes to assume exclusive jurisdiction over the regulation of surface 

coal mining and reclamation operations in the state under the federal Act.”); 

R.R. Comm’n of Texas v. Coppock, 215 S.W.3d 559, 570 (Tex. App.—Austin
10

2007, pet. denied).1 Indeed, the code contains a procedure by which the RRC 

may designate an area, including a floodplain, as not suitable for surface coal 

mining operations. TEX. NAT. RES. CODE § 134.020(b)(4) (“On petition under 

Section 134.017, the commission may designate a surface area unsuitable for 

certain types of surface coal mining operations if those operations will . . . 

affect natural hazard land, including areas subject to frequent flooding and 

areas of unstable geology, in which the operations could substantially 

endanger life and property.”). Consequently, the decision of whether a 

surface coal mining operation should be prohibited in the floodplain is 

clearly within the RRC’s exclusive jurisdiction, and the Floodplain 

Administrator’s attempt to usurp this authority is a clear abuse of discretion. 

See Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678-79 

(Tex. 2013) (ordinance may not override state permit); Dallas Merchant’s & 

1 “The natural resources code specifies that the Commission has been 

granted exclusive jurisdiction over surface coal mining and reclamation activities, has 

been charged with enforcing the relevant portions of the code, and has been given the 

authority to issue rules pertaining to mining and reclamation activities that are consistent 

with the code. See TEX. NAT. RES. CODE ANN. §§ 134.011 (Commission given broad 

powers, including power to adopt rules, issue and revoke permits, conduct hearings, 

issue orders requiring miners to take certain actions, and order cessation of mining 

activities), 134.012(a)(1) (Commission has exclusive jurisdiction), 134.013 (West 2001) 

(Commission required to adopt rules relating to surface coal mining and reclamation), 

134.161-.181 (West 2001) (enforcement powers of Commission).” R.R. Comm’n of Texas v. 

Coppock, 215 S.W.3d 559, 570 (Tex. App.—Austin 2007, pet. denied). 
11

Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993); City 

of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597, 601 (Tex. 

App.—San Antonio 2013, pet. denied) (“An ordinance that attempts to 

regulate a subject matter preempted by a state statute is unenforceable to the 

extent it conflicts with a state statute.”). 

Nor does the Floodplain Administrator have the power to enforce RRC 

regulations or second-guess the RRC’s determinations. Appellees appear to 

want to disavow any suggestion that the Floodplain Administrator

considered mining regulations in denying the permit. Resp. at 27-28. Yet 

this is exactly opposite of what they told the trial court below, where 

Appellees argue at length that the RRC should not have issued a permit to 

DRCP. 2 CR 857-66; see also Br. at 60-62. Indeed, Appellees argued that “[t]he 

County Judge was doing his job in protecting this community from the 

Railroad Commission.” 2 CR 879-80. But any concerns regarding purported 

dangers from mining activities were addressed and satisfied during the 

permitting process at the RRC, where Appellant was an active participant, 

and provided testimony. Re: The Application of Dos Republicas Coal Partnership 

for Renewal/Revision/Expansion of Surface Coal Mining And Reclamation Permit 

No. 42A, Eagle Pass Mine, Docket No. C5-0003-SC-42-C, Testimony of Judge 
12

David Saucedo, 10 Tr. 38-107, (Mar. 23, 2012). The Floodplain 

Administrator’s disagreement with the RRC’s conclusions is not a legitimate 

reason to deny the permit. Neither the Ordinance nor the enabling statute 

give the Floodplain Administrator the authority to override the RRC. See 

Southern Crushed Concrete, 398 S.W.3d at 678-79; Dallas Merchant’s, 852 

S.W.2d at 490–91; City of San Antonio, 419 S.W.3d at 601. Moreover, 

Appellees’ second-guessing of the RRC’s approval consists entirely of 

supposition and assumptions about what might happen in a flood. 2 CR 

856-67. Nowhere do Appellees cite any actual evidence to support this 

speculation, nor could they. The only evidence presented to the Floodplain 

Administrator or the trial court came from Paul Padilla, a licensed engineer 

and hydrology expert and the only expert to testify or offer evidence in this 

case. As discussed further below, Mr. Padilla testified that DRCP’s mining 

plan will not detrimentally affect flood water dangers or downstream 

properties. See Part II, infra.

2. The Ordinance does not and cannot regulate flood water 

quality or contaminants. 

Appellees’ assertion that the presence of the enabling legislation for 

the Ordinance within the Water Code constitutes a delegation of the power 
13

to regulate water quality to the County is meritless. Resp. at 24. The Water 

Code is quite clear that “[t]he commission [TCEQ] has the sole and exclusive 

authority to set water quality standards for all water in the state.” TEX.

WATER CODE § 26.023; TEX. WATER CODE § 26.011 (“Except as otherwise 

specifically provided, the commission shall administer the provisions of this 

chapter and shall establish the level of quality to be maintained in, and shall 

control the quality of, the water in this state as provided by this chapter.”). 

Further, the enabling legislation does not address water quality or pollution. 

Rather, commensurate with its purpose of promoting the availability of 

federal flood insurance (more on this below), it is found in Subchapter I 

(“Flood Insurance”) of Chapter 16 of Subtitle C (“Water Development”). 

In contrast, water quality regulation is found in Subtitle D, Chapter 26, 

which states clearly that “The commission [TCEQ] has the sole and exclusive 

authority to set water quality standards for all water in the state.” TEX.

WATER CODE § 26.023; TEX. WATER CODE § 26.011 (“Except as otherwise 

specifically provided, the commission shall administer the provisions of this 

chapter and shall establish the level of quality to be maintained in, and shall 

control the quality of, the water in this state as provided by this chapter.”). 

Notably, subchapter E of chapter 26 describes local governments’ functions 
14

related to water quality, none of which gives a county or Floodplain 

Administrator the authority to regulate water quality or otherwise impede a 

use that has been approved by the TCEQ. Rather, for example, local 

governments are authorized to inspect public water (§ 26.171), make 

recommendations to the TCEQ (§ 26.172), establish rules related to disposal 

systems owned or operated by the local government (§ 26.176), and for some 

cities to establish monitoring and abatement programs, which must be 

approved by the TCEQ, for pollution not traceable to a specific source

(§ 26.180). TEX. WATER CODE §§ 26.171-.180; see also, e.g., City of W. Lake Hills 

v. Westwood Legal Def. Fund, 598 S.W.2d 681, 686 (Tex. Civ. App.—Waco 1980, 

no writ) (explaining that the functions and services listed in section 26.177 

“are in the nature of ‘information gathering’”). As the court explained in 

City of West Lake Hills, “[a]lthough the Legislature recognized the importance 

of cooperative efforts between state and local governmental bodies, the state 

is assigned responsibility for promulgating rules and regulations to control 

pollution problems. . . . . The legislative scheme simply does not contemplate 

independent regulatory action by a city.” City of W. Lake Hills, 598 S.W.2d at

686. Appellees can point to nothing that grants Maverick County the 

authority exercised by the Floodplain Administrator here.
15

Indeed, the Ordinance itself provides no basis for Appellees’ claimed 

authority to regulate water quality or pollutants. Notably, the statement of 

purpose, on which Appellees rely so heavily, says nothing about flood water 

quality or contaminants. Notably, the Ordinance’s findings of fact make 

clear that the danger that the Ordinance is intended to address is flood water 

height and velocity, not water quality or contaminants. 1 RR, Exhibit 5, Article 

1, Section B(2) [Tab 3] (“These flood losses are created by the cumulative 

effect of obstructions in floodplains which cause an increase in flood heights 

and velocities, and by the occupancy of flood hazards areas by uses 

vulnerable to floods and hazardous to other lands because they are 

inadequately elevated, floodproofed or otherwise protected from flood 

damage.”). Not surprisingly, then, the Ordinance’s definitions do not 

include “contaminant,” “pollutant,” or any other term related to water 

quality. In fact, no provision of the Ordinance relates to water quality or 

even refers to (much less establishes) any water quality standard against 

which a permit application must be judged. Nor is there anything that 

suggests that Floodplain Administrators have the necessary expertise to 

regulate water quality.
16

Further, the purpose of the enabling statute that authorizes local 

governments to adopt these ordinances does not relate to water quality. 

Rather, the purpose is to allow property owners to obtain flood insurance 

under a federal program. TEX. WATER CODE § 16.312 (“The purpose of this 

subchapter is to evidence a positive interest in securing flood insurance 

coverage under this federal program and to so procure for those citizens of 

Texas desiring to participate and in promoting the public interest by 

providing appropriate protection against the perils of flood losses and in 

encouraging sound land use by minimizing exposure of property to flood 

losses.”); id. § 16.3145 (“The governing body of each city and county shall 

adopt ordinances or orders, as appropriate, necessary for the city or county 

to be eligible to participate in the National Flood Insurance Program.”). It 

was not intended to establish a separate regulatory regime for water quality. 

Nor was it intended to grant counties free license to prevent land uses they 

deem unwanted.

Further, Appellees’ assertion that recognizing that the TCEQ has 

exclusive authority to regulate water quality would nullify the Ordinance is 

spurious. Resp. at 24-25. The Ordinance, properly interpreted, is limited to 

consideration of the height and velocity of flood waters, not water quality. It 
17

is only under Appellees’ erroneous interpretation of the Ordinance, which 

would give the Floodplain Administrator the authority to regulate water 

quality in addition the enumerated authority to regulate flood water height 

and velocity, that would create a conflict with the TCEQ’s exclusive 

authority. Under the proper interpretation, the Ordinance and the TCEQ 

regulate different things.

Appellees’ interpretation of the Ordinance clearly exceeds the 

authority granted to the County in the enabling legislation and, in any case, 

is preempted by the Water Code’s delegation of that authority exclusively to 

the TCEQ. See Southern Crushed Concrete, 398 S.W.3d at 678-79; Dallas 

Merchant's, 852 S.W.2d at 490–91; City of San Antonio, 419 S.W.3d at 601. The 

Floodplain Administrator’s exercise of this non-existent authority is a clear 

abuse of discretion. 

II. As a matter of law, DRCP’s Permit Application satisfied the 

conditions to receive a permit.

Appellees assert that the Floodplain Administrator and trial court 

were not required to accept the uncontroverted testimony of Paul Padilla, a 

licensed engineer and hydrology expert and the only expert to testify or offer 

evidence in this case. But there is no reasonable basis for rejecting or 
18

discounting Padilla’s testimony. Thus, as the only expert evidence on the 

issue, which is one that necessitates expert opinion, it is conclusive on the 

fact questions at issue here. In City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 

2005), the Texas Supreme Court recognized that flood water management

involves scientific and technical issues that require expert opinion evidence. 

Id. at 829; see also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006)

(“Expert testimony is required when an issue involves matters beyond 

jurors’ common understanding.”). In such situations, an expert’s 

uncontroverted testimony is conclusive. City of Keller, 168 S.W.3d at 820; 

Hager v. Romines, 913 S.W.2d 733, 735 (Tex. App.—Fort Worth 1995, no writ) 

(“Further, if expert testimony is required on an issue, and that expert 

testimony is uncontroverted, the testimony is considered conclusively 

established.”); Mack v. Moore, 669 S.W.2d 415, 419 (Tex. App.—Houston [1st 

Dist.] 1984, no writ) (same). 

The Floodplain Administrator’s vague allusions to “personal 

experience” simply are not relevant or competent evidence in evaluating 

whether the Permit Application satisfies the Ordinance.2 Further, the 

 2 Appellees insist that the Floodplain Administrator’s deposition testimony 

that “he relied on his personal experiences with flooding in Maverick County” is 
19

Floodplain Administrator’s “personal experience with and knowledge of 

significant flooding in the area” (Resp. at 5) likewise does not address the 

relevant considerations of the Ordinance. It is undisputed that there has 

been and will be flooding that takes place in the floodplain. The Ordinance 

expressly recognizes this, yet, as discussed below, it does not prohibit all 

development in the floodplain. Nor does the Floodplain Administrator’s 

“experience” related to other sedimentation ponds that have overflowed 

have any bearing on the permit application. As Padilla testified, 

sedimentation ponds are designed to overflow. As the Texas Supreme Court 

has explained, issues related to floodwater management require expert 

evidence, and Padilla’s uncontroverted expert evidence is more than 

sufficient to satisfy each of the conditions set forth in the Ordinance. 

 

competent evidence. Resp. at 29. But it is not evidence relevant to any actual factor 

contained in the Ordinance. Further, as discussed above, the Texas Supreme Court has 

held that issues related to flood water management require expert evidence. The 

Floodplain Administrator’s vague references to unsubstantiated personal experiences 

and what he’s “seen happen in the past” simply do not qualify. 1 RR, Exhibit 9, at 49:18-

23 (Q. “[W]as there any other evidence that you considered when denying the permit? 

A. . . . one of the major factors to me is – is what I’ve actually seen in that community, 

what I’ve seen happen in the past with prior flooding.”); 1 RR, Exhibit 9 at 46:14-22 (when 

asked what evidence he had to support his denial, the Floodplain Administrator merely 

responded with “what I’ve seen in the past”).
20

Despite the fact that the only factors the Floodplain Administrator

purported to contest in the trial court were factors (a)-(c), Appellees now, for 

the first time, assert that the Floodplain Administrator also based his 

rejection of the Permit Application on factor (d). As discussed below, 

Appellees’ late attempt to assert factor (d) should be rejected as untimely 

and waived. In any case, it is another futile effort by Appellees’ to shoehorn 

the Floodplain Administrator’s erroneous consideration of irrelevant issues

into permissible factors. 

A. Appellees’ assertions with respect to Padilla’s testimony are 

based on misconceptions about what a permit application 

must show. 

With respect to factors (a)-(c), Appellees raise essentially the same two 

arguments. First, Appellees assert that Padilla’s testimony must be 

disregarded because he failed to consider the effect of a hypothetical backto-back storm as well as a purported rain event in June of 2013. Second, 

Appellees assert that Padilla’s testimony must be disregarded because he 

did not consider possible contaminants. Appellees’ arguments misconstrue 

the Ordinance’s requirements and the record in this case.3

 3 As noted above, Appellees’ lengthy argument in the trial court that the RRC 

and TCEQ should not have approved DRCP’s mining plan because of its purported 
21

1. DRCP was not required to eliminate pre-existing dangers 

from flooding.

Initially, there is zero evidence in the record that Maverick County 

received 17 inches of rain in 10 hours in June 2013. Br. at 36. Appellees’ 

frequent references to such an event are improper and must be disregarded.

But more fundamentally, Appellees’ argument assumes that DRCP 

was required to prove that the proposed use would eliminate all potential 

damage from any possible flood event. This is simply preposterous. The 

Ordinance is not intended to mitigate all dangers from flooding, as 

recognized within the Ordinance, itself. Rather, the Ordinance requires that 

the proposed use not exacerbate the dangers from flooding by increasing the 

height, velocity, and debris in the flood water. Texas Nonpoint Source 

Management Program, TCEQ/TSSWCB joint publication SFR-68/04, at 93 

(2005) (“To participate in the NFIP, a community must adopt and enforce a 

 

effects on downstream residents is based entirely on speculation and assumptions, not 

any actual evidence. See, e.g., 2 CR 857-66. Throughout, Appellees rail against supposed 

problems with the RRC’s and TCEQ’s determinations based on nothing more than the 

fact that flooding happens in the floodplain and it makes them uncomfortable. Id. To be 

absolutely clear, there is no evidence in the record before this Court or in the proceedings 

before the RRC and TCEQ that downstream residents are at any greater risk due to 

flooding under DRCP’s proposed mining plan. Appellees’ fears and baseless speculation 

about purported of dangers to downstream residents simply have no evidentiary 

support.
22

floodplain management ordinance which prevents new development from 

increasing the flood threat and protect new and existing buildings from 

anticipated flood events.” (emphasis added)). Section D of the Ordinance 

provides that the Ordinance may restrict or prohibit uses that “cause 

excessive increases in flood heights or velocities” and to control 

development that “may increase flood damage.” 1 RR, Exhibit 5, Article 1, 

Section D(1), D(4) [Tab 3] (emphasis added).4

Moreover, the Ordinance fully recognizes that “[t]he degree of flood 

protection required by this ordinance is considered reasonable for 

regulatory purposes and is based on scientific and engineering 

considerations. On rare occasions greater floods can and will occur and 

flood heights may be increased by man-made or natural causes.” 1 RR, 

Exhibit 5, Article 3, Section G [Tab 3]. Further, FEMA has noted that “[t]he 

1-percent-annual-chance flood,” the standard adopted for all NFIPcomplaint ordinances, “was chosen on the basis that it provides a higher 

 4 Although Article 1, Section D(1) of the Ordinance also recites that the 

ordinance restricts or prohibits uses “that are dangerous to health, safety or property in 

times of flood,” this description is nonetheless under the umbrella of “reducing flood 

losses” within the ordinance, recognizing that the ordinance is focused on reducing 

property loss in times of flood, and reducing—rather than eliminating—threats from 

flooding in the floodplain.
23

level of protection while not imposing overly stringent requirements or the 

burden of excessive costs on property owners.” National Flood Insurance 

Program: Program Description, Fed. Emer. Mgmt. Agency, at 5 (Aug. 1, 

2002), available at http://www.fema.gov/media-library-data/20130726-

1447-20490-2156/nfipdescrip_1_.pdf. The Ordinance is not intended to, nor 

could it, protect or prevent against all possible flooding events. And 

applicants like DRCP are not required to show that their proposed uses will 

eliminate the dangers from floods.

In any case, it is undisputed that, as Padilla testified, DRCP’s proposal 

actually decreases the pre-existing risks from flooding events. Under DRCP’s 

mining plan, there is a decreased risk of damage caused by flooding or 

erosion due to the proposed sedimentation ponds. 1 RR, Exhibit 3, at 5 [Tab 

5]; 1 RR, Exhibit 1 at ¶ 13; 1 RR 40:14-41:21. Specifically, DRCP’s Permit 

Application and Mr. Padilla’s unrebutted expert testimony establish that 

DRCP’s proposed mining plan will have a zero net effect on flooding in the 

Elm Creek watershed outside of the mining project area. 1 RR 53:21-23. 

Moreover, DRCP’s mining plan decreases the likelihood that materials will 

be swept downstream because the use of sedimentation ponds contains the 

flow within the channel. 1 RR, Exhibit 3, at 5 [Tab 5]; 1 RR, Exhibit 1 at ¶ 15. 
24

Indeed, the sediment load leaving the mine area will be lower if DRCP

conducts its proposed mining operation with sedimentation ponds than if

DRCP does nothing at all in the floodplain. 1 RR 54:1-2. Although the 

Floodplain Administrator may doubt the efficacy of such ponds because, 

based on dubious and inapposite “personal experience,” they may overflow, 

the ponds are, in fact, designed to overflow. 1 RR 56:9-14. The 

uncontroverted expert testimony establishes that DRCP’s mining plan and 

its use of sedimentation ponds would not constitute a new danger for those 

living downstream; to the contrary, they would decrease the pre-existing 

risks from inevitable flooding.

The Floodplain Administrator testified that he denied the permit 

based, in part, on his personal experiences observing the devastation from 

flooding. See, e.g., 1 RR, Exhibit 9, at 49:18-23, 46:14-22. That is simply not 

the issue. As the Ordinance recognizes, there will be flooding if DRCP’s 

proposed use is permitted; and there will be flooding if it is prohibited.5 The 

issue is the effect, if any, of the proposed use on the velocity and height of 

 5 Even Judge Saucedo recognizes that flooding occurs, regardless of DRCP’s 

proposed mining plan. 1 RR, Exhibit 9 at 49:23-25 (discussing flooding in the past, and 

recognizing that DRCP is “not responsible for the flooding”).
25 

flood waters. The Floodplain Administrator’s personal observations of past 

flooding events simply does not address this issue.

2. The Ordinance does not address water quality or 

“contaminants.”

Similarly, Appellees erroneously believe that the Ordinance requires 

consideration of potential contaminants. As discussed above, nothing in the 

Ordinance addresses contaminants. See Part I.B.2, supra. Water quality is 

regulated exclusively by the TCEQ, which has already approved DRCP’s 

proposed mining operations. The Ordinance provides no basis for the 

Floodplain Administrator to deny a permit based on hypothetical fears 

regarding potential “contaminants.”

Moreover, although Padilla agreed that sulfur “could be” considered 

a contaminant, he did not testify that the sulfur was dangerous or that the 

levels involved would pose any health risk. Indeed, he also testified that dirt 

is a “contaminant.” 1 RR 75:5-8. And while he testified that he would not 

want to drink the water coming out of the sedimentation ponds, who would? 

Neither DRCP nor any other landowner is required to ensure that the flood 

water coming off of its property is potable. People do not drink flood water, 

and there is no evidence that dangerous levels of any contaminant would be 
26

present in flood waters leaving DRCP’s property or that there would be any 

danger to drinking water. Indeed, the Floodplain Administrator merely

raised the “possibility” of contamination, but could not identify any 

particular contaminants or contamination that might occur under DRCP’s 

mining plan. 1 RR, Exhibit 9 at 34:10-23.

B. Appellees waived factor (d), the compatibility of the proposed 

use with existing and anticipated development.

Appellees have waived any argument that factor (d) was a basis for 

the Floodplain Administrator’s rejection of DRCP’s permit application. In 

his deposition, the Floodplain Administrator testified that his denial was 

based on factors (a)-(c). 1 RR, Exhibit 9 at 46 (“Q: The floodplain permit was 

denied because of the factors in 2(a), (b) and (c)? A: Yes, sir.”). Nor did 

Appellees contest factor (d) in the trial court. 2 CR 874-79. Appellees’ 

attempt to assert factor (d) for the first time in this Court should be rejected 

as untimely and waived. TEX. R. APP. P. 33.1(a)(1); Nall v. Plunkett, 404 

S.W.3d 552, 555-56 (Tex. 2013) (holding issues not raised and briefed in lower 

courts are waived); Jackson v. Neal, No. 13-07-00164-CV, 2009 WL 140507, at 

*4 & n.3 (Tex. App.—Corpus Christi-Edinburg Jan. 22, 2009, no pet.) (mem. 

op.) (“This argument, however, was not raised in the trial court and is, 
27

therefore, waived.”). Try as they might, Appellees’ latest attempt fails to 

transform the Floodplain Administrator’s erroneous consideration of 

irrelevant factors (such as neighborhood sentiment), into permissible 

categories.

In any case, Appellees’ arguments regarding factor (d) are meritless. 

Appellees assert that factor (d) requires the consideration of the 

compatibility of the proposed use with uses on neighboring properties and 

neighborhood opposition. Appellees once again conveniently forget that 

this Ordinance is about floodplain management, not the approval of a coal 

mine. Nor is it a zoning ordinance. Neighborhood opposition is simply not 

something that this narrow floodplain-management Ordinance is intended 

to—or does in fact—cover. As in Starr County v. Starr Industrial Services, Inc., 

584 S.W.2d 352, 356 (Tex. App.—Austin 1979, writ ref’d n.r.e.), “[n]owhere

in the [Ordinance] is local opposition mentioned for consideration as a 

standard to govern the [Floodplain Administrator’s] decision,” and, thus, 

the Floodplain Administrator’s consideration of such local opposition, and 

the “best interests of the County,” was arbitrary and capricious, and 
28

constitutes an abuse of discretion.6 Id. at 356. Nothing in the Ordinance or 

any other law gives county residents located miles away from DRCP’s 

property the right to veto DRCP’s approved use of its land. Those decisions 

are left to the state RRC and TCEQ, both of which have approved the 

proposed mining operation. 1 RR, Exhibit 7; 1 RR, Exhibit 8. Indeed, the 

residents who are opposed have already fully litigated their opposition to 

the RRC’s approval of the mine and its location. 1 RR, Exhibit 8 at ¶ 9 

(identifying those persons and entities who obtained party status in RRC 

hearing); see generally Re: The Application of Dos Republicas Coal Partnership for 

Renewal/Revision/Expansion of Surface Coal Mining And Reclamation Permit No. 

42A, Eagle Pass Mine, Docket No. C5-0003-SC-42-C (RRC, Surface Mining and 

Reclamation Division 2012). Factor (d) simply does not give the Floodplain 

Administrator the authority to override the outcome of the RRC’s decision 

and the subsequent litigation. 

Moreover, factor (c) already addresses the effect of the proposed use 

on flood damage to other properties. 1 RR, Exhibit 5, Article 4, Section 

 6 In any case, the unrebutted and uncontradicted evidence in this case 

establishes that the proposed use would reduce the effects of flooding events on 

downstream properties and, thus, would be, under any reasonable meaning of the words, 

“in the best interests of the county.” 
29

C(2)(c) [Tab 3]; 1 RR 42-43. Appellees can cite nothing that suggests that 

factor (d) encompasses consideration of the compatibility of all land uses 

within the county.7 It certainly cannot transform a narrow ordinance 

addressing flood damage prevention into a general, county-wide 

development scheme. But even if it did, “neighborhood sentiment” still 

would not fall within this factor unless the meaning of “compatibility” is so 

broad as to be essentially standardless and, thus, unconstitutionally vague. 

Bradley, 990 S.W.2d at 253; Texas Antiquities Comm., 554 S.W.2d at 928; Pak-aSak, 451 S.W.3d at 137. Neither this factor, nor indeed anything else in the 

Ordinance, permits the Floodplain Administrator to deny a permit because 

he deems that a mine is inconsistent with a use miles away, or allows the 

Floodplain Administrator to consider his estimation of popular opposition 

to the proposed use of the property. 

III. The duty to grant the permit is not discretionary where, as here, the 

Ordinance’s conditions are met.

Appellees’ assertion that the Ordinance is discretionary by definition 

is simply another manifestation of its mistaken assertion that the Ordinance 

 7 In fact, Padilla testified that after the seven-year life of the mining plan, the 

land will be restored to its original condition and “then can be used in whatever 

comprehensive plan the county wishes.” 1 RR 43-44. 
30

invests the Floodplain Administrator with authority to evaluate permit 

applications without regard to the ten factors enumerated in the Ordinance. 

See Part I, supra. Indeed, this interpretation would give the Floodplain 

Administrator such standardless discretion that it would create “a situation 

ripe for ‘resolution on an ad hoc and subjective basis, with the attendant 

dangers of arbitrary and discriminatory application.’” Bradley, 990 S.W.2d 

at 253 (quoting Grayned, 408 U.S. at 109)). 

Properly interpreted, however, the Ordinance does not grant the 

Floodplain Administrator free reign to reject otherwise compliant 

applications based on his personal feelings, desires, opinions, or grandiose 

notions of the best interests of the county. Once the requirements and factors 

enumerated in the Ordinance are satisfied, it is the Floodplain 

Administrator’s duty under the Ordinance to grant the permit.8 Because the 

unrebutted and uncontradicted evidence in this case is that the proposed use 

 8 Appellees’ assertion that the Floodplain Administrator had to consider all 

21 pages of the Ordinance is frivolous. See Resp. at 6, 9, 22. Of the 21 pages, 3 are 

certification pages, 7 are definitions, 2 relate to variance procedures, 3 relate to building 

standards, and 4 include general provisions, findings and statement of purpose. 1 RR, 

Exhibit 5 [Tab 3]. Only 2.5 pages relate to the duties of the Floodplain Administrator and 

the requirements and factors that the Floodplain Administrator must determine have 

been met in order to grant the permit. Id. None of the provisions on the remaining 18.5 

pages relate to the permitting procedure. Id.
31

would not increase, but actually would reduce the dangers posed by flooding 

events, the Floodplain Administrator had a ministerial duty to grant the 

permit. See Part II, supra; Br. at 20-39. 

Further, Appellees concede that the Floodplain Administrator

considered factors outside of the ten factors mandated in the Ordinance. 

Resp. at 11. Because, under the proper interpretation of the Ordinance, the 

requirements and factors set forth in article 4, section C of the Ordinance are 

the exclusive standards by which a permit application must be judged, the 

Floodplain Administrator’s consideration of other factors is, per se, an abuse 

of discretion. Br. at 49-64. 

IV. The Floodplain Administrator’s failure to provide any written 

explanation of his decision evidences an abuse of discretion and is 

arbitrary and capricious.

A. The requirement of a written explanation is inherent in the 

concept of judicial review.

Appellees’ argument that principles of law requiring a written 

explanation of an administrator’s decision apply only to “state agencies” is 

specious. As explained in DRCP’s opening brief, the power of Texas courts 

to judicially review the Floodplain Administrator’s decision necessarily 

“implies a power to require the [Floodplain Administrator] to supply any 
32

reasons or explanations necessary for the reviewing court to understand the 

[Floodplain Administrator’s] final order” so that there may be “meaningful 

judicial review” rather than a “charade of the real thing.” City of El Paso v. 

El Paso Elec. Co., 851 S.W.2d 896, 900 (Tex. App.—Austin 1993, writ denied); 

see generally Br. at 42-44. Although some of the cases cited may involve state 

agencies, the principles apply with equal force to counties, and the 

Floodplain Administrator. 

Similarly, Appellees’ citation to Texas Health Facilities Commission v. 

Charter Medical-Dallas, Inc., 665 S.W.2d 446 (Tex. 1984), is inapposite. 

Although that case does stand for the proposition that the scope of judicial 

review of administrative decisions “is governed by the enabling statute in 

the area under adjudication,” id. at 449, that “scope” refers to the standard 

of review the court should apply to the agency’s decision. Id. It does not 

refer to the requirement that the administrator provide a written 

explanation. Indeed, it is hard to apply any standard of review (except de 

novo) where the administrator fails to provide any written explanation for 

his decision.

Again, Appellees act as if the Floodplain Administrator has unfettered 

discretion to reject permit applications for unspecified reasons that only he 
33

knows. This is the very essence of the kind of arbitrary and capricious 

administrative actions that Texas courts reject. The Floodplain 

Administrator’s two-sentence order provides no basis on which to uphold 

his naked exercise of standardless discretion. This Court should reject his 

attempt to insulate his arbitrary and capricious actions by hiding his reasons 

for denying the Permit Application. 

B. There is no evidence of any [climate] changed circumstances

that justify the disparate treatment of the 1998 and 2013 permit 

applications.

Showing true desperation, Appellees attempt to tie the Floodplain 

Administrator’s denial of DRCP’s permit application to controversial 

climate change theories. Resp. at 30. Appellees cite a New York Times 

article, which was published (and deals with events) occurring well after the 

trial – and thus was not, of course, part of the trial record and, therefore not 

properly before this Court. See Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998)

(“We may not consider factual assertions that appear solely in the appellate 

briefs and not before the trial court.”). 

Moreover, because Appellees cite to the article in an attempt to prove 

the truth of the matters discussed therein, the article is rank hearsay. TEX. R.

EVID. 801(d); Walker v. Hitchcock Indep. Sch. Dist., No. 01-11-00797-CV, 2013 
34

WL 3771302, at *6 (Tex. App.—Houston [1st Dist.] July 16, 2013, no pet.) 

(mem. op.) (“[N]ewspaper articles that are offered to prove the truth of what 

the article is reporting are inadmissible hearsay.”); City of Austin v. Houston 

Lighting & Power Co., 844 S.W.2d 773, 791 (Tex. App.—Dallas 1992, writ 

denied) (“Generally, Texas courts consider newspaper articles inadmissible 

hearsay.”). 

Further, nothing in the article suggests that there was “a change in 

relevant circumstances between 1998 and 2013.” Resp. at 30. Indeed, even 

if the events described in the article could possibly suggest a change in 

circumstances, they occurred in 2015 and, thus, could not have formed any 

part of the Floodplain Administrator’s consideration of the Permit 

Application. Appellees’ misleading assertion to the contrary must be 

rejected. Further, events in other parts of Texas do not provide any relevant 

evidence about Maverick County or the Permit Application at issue here. A 

vague prediction that there may be more “extreme weather events” does not 

change the analysis in this case. There is simply no evidence in or outside 

the record of any relevant changes that would justify in the disparate 

treatment of the two Permit Applications. This is just the latest permutation 
35

of Appellees’ revisionist justifications of the Floodplain Administrator’s 

denial of the Permit Application.

V. Appellees’ novel contention that the Floodplain Administrator’s due 

process violation was “remedied” by instituting an action for an 

extraordinary writ is without merit.

Appellees assert that DRCP’s “argument assumes DRCP has a 

property interest in a permit it has requested but not yet been granted.” 

Resp. at 35. But DRCP’s argument assumes no such thing. It is undisputed 

that DRCP has a property interest in the mining area itself, as well as having 

a property interest in its state-issued permits from the RRC and TCEQ, 

which authorize DRCP to conduct mining operations on its property. Br. at

64-65. Further, Appellees assert that DRCP has not “contended that Judge 

Saucedo’s actions stripped it of its ability to use its land in accordance with 

its existing permits.” Resp. at 35. But this is precisely what DRCP has argued. 

The Floodplain Administrator’s actions have deprived DRCP of its property 

interests in its state permits and the use of its property in accord with those 

permits. Appellees’ assertions to the contrary is wishful or mistaken.

Moreover, Appellees’ assertion that DRCP received due process 

because it had to pursue an extraordinary writ in order to impel the 

Floodplain Administrator to perform his duties is absurd. Not surprisingly, 
36

Appellees cite no authority for the incredible proposition that a due process 

violation is “remedied” through a mandamus proceeding. 

PRAYER

Pursuant to TEX. R. APP. P. 43.2, Dos Republicas Coal Partnership 

respectfully requests that this Court reverse the trial court’s final judgment 

and render judgment in its favor and issue a writ of mandamus ordering the 

Floodplain Administrator and the Maverick County Commissioners Court 

to issue a floodplain development permit to DRCP. In the alternative, Dos 

Republicas Coal Partnership requests that the final judgment be reversed 

and the case remanded for the trial court to determine any remaining issues 

of fact, or for resolution of any other issues identified by the Court. Finally, 

DRCP requests any and all other relief to which it is may be entitled.
37

Respectfully Submitted,

/s/ Bill Cobb 

Bill Cobb

State Bar No. 00796372

Matthew Ploeger

State Bar No. 24032838

Jenny L. Smith

State Bar No. 24079357

COBB & COUNSEL

401 Congress Avenue, Suite 1540

Austin, Texas 78701

bill@cobbxcounsel.com 

(512) 693-7570

(512) 687-3432 – Facsimile 

Leonard Dougal

State Bar No. 06031400

Mallory Beck

State Bar No. 24073899

JACKSON WALKER L.L.P.

100 Congress, Suite 1100

Austin, Texas 78701

E: ldougal@jw.com

T: (512) 236-2233

F: (512) 391-2112

 

 Attorneys for Appellant

Dos Republicas Coal Partnership
38

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), and 

relying on the word count function in the word processing software used to 

produce this document, I hereby certify that the total word count in this 

document is 7,488. 

/s/ Bill Cobb 

Bill Cobb

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of July, 2015, a true and correct 

copy of the foregoing document has been served upon the following 

attorneys by electronic service and email.

Alfonso Nevarez C.

Nevarez Law Group, PC

780 Rio Grande Street

Eagle Pass, Texas 78852

anc@nevarezlawgroup.com

mvw@nevarezlawgroup.com

Rolando Jasso

State Bar No. 10491500

Claudio Heredia

State Bar No. 09505300

Knickerbocker, Heredia, Jasso, & 

Stewart P.C.

468 East Main Street 

Eagle Pass, Texas 78852-4598

rmjasso@khjslaw.com

chlaw750@yahoo.com

Law Office of Beth Watkins

926 Chulie Drive

San Antonio, Texas 78216

(210) 225-6666—phone

(210) 225-2300—fax

Beth.Watkins@WatkinsAppeals.com

/s/ Bill Cobb 

Bill Cobb
APPENDIX

Tab 1 Order Denying Dos Republicas Coal Partnership’s Amended 

Petition for Writ of Mandamus (5 CR 2940)

Tab 2 Findings of Fact and Conclusions of Law (5 CR 3207-12) 

Tab 3 Maverick County Flood Damage Prevention Ordinance (1 RR, 

Exhibit 5)

Tab 4 April 3, 2014 Letter Denying DRCP’s Floodplain Development 

Permit Application (1 RR, Exhibit 4)

Tab 5 Supplemental Floodplain Analysis, Executive Summary (1 RR, 

Exhibit 3, at 2-6)
TAB 1
2940

'• 

NO.l4-03.-29340=MCVI 

DOS REPUBLICA$ COAL PARTNERSHIP, § 

Plaintiff § 

vs. 

DAVID SAUCEDO as FLOODPLAIN 

ADMINISTRATOR and COUNTY JUDGE 

OF THE MAVERICK COUNTY 

CO:MMISIONERS COURT and THE 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

MAVERICK COUNTY COMMISIONERS § 

COURT 

Defendant 

§ 

§ 

IN THE DIS1RICT COURT 

MAVERICK COUNTY TEXAS 

293td JUDICIAL DIS1RICT 

ORDER DENYING PLAINTIFF 

DOS REPUBLICAS COAL PARTNERSHIP'S AMENDED PETITION FOR 

WRIT OF MANDAMUS 

On October 9, 2014, came to be heard Plaintiff Dos Republicas Coal 

Pamership (DCCP) Amended Petition for Writ of Mandamus. The Court, having 

reviewed the Plaintiff's Writ, and the responses, pleadings, briefs, evidence and 

testimony from both Plaintiff and Defendants therein, and having considered 

same, is of the opinion that Plaintiff DCCP' s A~E18dt(~JRiibn fob Writ of 

J,\J_,.O,;.~ __ JYCLOCK a_M 

Mandamus should be DENIED. Del 'l 0 2014 

for Writ of Mandamus is hereby DENIED. 

Signed this \ G¥r'aay of October, 2014. 

--~~~~~--~935 

PRE 
TAB 2
3207

. ' 

CAUSE NO. 14-03-29340-MCV 

DOS REPUBLICA$ COAL P ARTNERSIDP, § IN THE DISTRICT COURT -- § 

Plaintiff, 

v. 

DAVID SAUCEDO as FLOODPLAIN 

ADMINISTRATOR and COUNTY JUDGE 

OFTHEMAVlliUCKCOUNTY 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

MAVERICK COUNTY, TEXAS 

COMWSIONERS COURT and THE § 

MAVERICK COUNTY COMMISIONERS § 

COURT, 

Defendants. 

§ 

§ 

§ 293rd JUDICIAL DISTRICT 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Plaintiff's Amended Motion for Writ of Mandamus in the abovecaptioned cause came on for hearing before the Court on October 9, 2014. All 

\ 

parties were present through their attorneys. After considering the pleadings, the 

evidence, and the arguments of counsel, the Court entered it's Order Denying 

tl 

~ 

I 

Plaintiff's Amended ~otion for Writ of Mandamus on October 10, 2014. On 

October 27, 2014, Plair\~iff requested that this Court enter findings of fact and 

conclusions of law, which are hereby submitted as follows: 

FINDINGS OF FACT 

1. On August 15, 1996, the Maverick County Commissioners Court approved 

and adopted the Maverick County Flood Damage Prevention Ordinance 

("Ordinance"). The Ordinance was adopted pursuant to the National Flood 

Insurance Program and was established to minimize flood losses in Maverick 

County, Texas.1 

1 Plaintiff Exhibit 5. Maverick County Flood Damage Prevention Ordinance, pg. 1 

1 3201 
3208

2. Through the Ordinance, the Maverick County Commissioners Court 

appointed the County Judge as the Floodplain Administrator with the 

authority to review, and either approve or deny all applications for 

development permits required by adoption of the Ordinance. 2 

3. As per Article 4, Section C(1), an Application for a Development Permit must 

be presented to the Floodplain Administrator and must include the 

information contained in Subsections (a)-(e).3 

4. As per Article 4, Section C(2), approval or denial of a Development Permit by 

the Floodplain Administrator shall be based on all of the provisions of the 

Ordinance and the relevant factors contained in Subsections (a)-G) (the 

"factors").4 

5. On November 3, 2011, Dos Republicas Coal Partnership ("DRCP") filed an 

Application for Floodplain Permit with Maverick County, as required by the 

Ordinance. DRCP filed a Supplemental Application on September 4, 2013, 

after a new FEMA floodplain map was adopted. 

6. After reviewing DRCP' s Application and taking into consideration all of the 

provisions of the Ordinance, the Floodplain Administrator decided that 

DRCP satisfied the requirements contained in Article 4, Section C(1) 

contained in the Ordinance, but had concerns with factors (a)-( c) contained in 

Article 4, Section C(2). 5 

7. Factors (a)-( c) cited by Floodplain Administrator are: 

(a) The danger to life and property due to flooding or erosion damage; 

(b) The susceptibility of the proposed facility and its contents to flood 

damage and the effect of such damage on the individual owner; 

and 

(c) The danger that materials may be swept onto other lands to the 

injury of others.6 

8. As a result of DRCP's failure to address the concerns the Floodplain 

2 Id. at pg. 12 

3 Id. at pg. 13 

4 Id. at pgs. 13-14 

5 Plaintiff Exhibit 9, Excerpts from Transcript dated October 2, 3014, Oral and Video Deposition of the Corporate 

Represet~tative of tl1e Mwerick County Commissioners Court (David Raul Saucedo), pg. 69lines 7-22 

6 Id. at pgs. 70-71lines 24-10 

2 3202 
3209

Administrator had with factors (a)-(c), the Floodplain Administrator denied 

DRCP's Development Permit 7 . DRCP was notified of the Floodplain 

Administrators decision in a letter dated April 3, 2014.8 Thereafter, DRCP 

filed this cause on March 25, 2014. 

9. At the October 9, 2014 hearing, DRCP called its expert, civil engineer Paul 

Padilla. He had prepared the Supplemental Floodplain Analysis to the 

original 2011 Floodplain Application, which was submitted to the Floodplain 

Administrator as a Supplemental Application. Paul Padilla testified 

regarding the requirements for a floodplain permit, and whether DRCP met 

all the requirements9. 

10. The Court finds that DRCP's expert Paul Padilla failed to demonstrate 

through his testimony that all ten factors contained in Article 4, Section C (2) 

(a)-G) of the Ordinance were satisfied, so as to support the granting of the 

Permit. Specifically, Mr. Padilla failed to address factors (a)-(c) which the 

Floodplain Administrator referenced as his reason for denying DRCP's 

Development Permit.10 

11. The Court finds that DRCP's expert, Paul Padilla, failed to demonstrate 

through his testimony that in his analysis he considered the specific rainfall 

events Maverick County is and has been susceptible to which have caused 

significant flooding and damage in Maverick County.'~ 1 

12. The Court finds that DRCP' s expert, Paul Padilla, failed to demonstrate 

through his testimony that in his analysis he considered the contaminants 

and/or sediment contained in the sedimentation ponds that will overflow in 

the event of a flood event in Maverick County.

12 

13. The Permit Procedures are outlined in Article 4, Section C of the Ordinance. 

There is no requirement in the Ordinance that the Floodplain Administrator's 

written denial of the Permit specifically address the requirements and/or 

factors which he considered as the basis for his decision. 13 

14. The Court finds that the "best interest of [Maverick] county" was not a basis 

7 Deposition of David Raul Saucedo, pg. 69 lines 7-14 

8 Plaintiff Exhibit 4, Defendant's letter of denial, April3, 2014 

9 Exce.rpts from Transcript dated October 9, 2014, Hearing on Abatement and Writ of Mandamus, p.31 

10 Id. pg. 69 lines 9-21 

11 Id. at lines 18-21 

12 Id. at lines 9-17 

13 Floodplain Prevention Ordinance, pgs.13-14 

3 3203 
3210

for Defendants' decision standing alone, but was merely referenced when 

considering the Ordinance was designed to minimize flood losses in flood 

hazard areas of Maverick County, Texas. 

15. The Court finds that the Floodplain Administrator's personal experiences 

were not a basis for Defendants' decision standing alone, but knowledge of 

the specific rainfall events in Maverick County which have caused significant 

flood damage in Maverick County was a mere reference when considering 

factors (a)-( c) contained in the Ordinance. 

16. The Court finds that the Texas Coal Mining Regulations was not a basis for 

Defendants' decision standing alone, but was a mere reference when 

considering factors (a)-( c) contained in the Ordinance. 

17. The Court finds that the floodwater quality was not a basis for Defendants' 

decision standing alone, but was a mere reference when considering the 

factors contained in the Ordinance; specifically, the danger to life and 

property due to flooding or erosion damage, and the danger that materials 

may be swept onto other lands to the injury of others. 

18. The Court finds that the Floodplain Administrator denied DRCP's permit 

based on the concern that if the permit was approved, the occurrence of a 

flooding event (such as the flooding events experienced by Maverick County 

in the past) will carry sediment and/or contaminants downstream into the 

homes of Maverick County citizens and into Elm Creek. 

19. The Court finds that the Floodplain Administrator based his decision to deny 

DRCP' s Development Permit on all of the provisions of the Ordinance and 

the relevant factors, as he was authorized to do by Article 4 of the 

Ordinance. 14 

20. The Court finds that the Floodplain Administrator did not abuse his 

discretion when rendering his decision to deny DRCP' s Development Permit. 

CONCLUSIONS OF LAW 

1. A district court may issue a writ of mandamus to rectify an abuse of 

discretion, when a Commissioners Court acts illegally, unreasonably, or 

arbitrarily. 

14 Deposition of David .Raul Saucedo, pg. 69 lines 7-14 

4 320 4 
3211

2. A Commissioners Court abuses its discretion-necessitating mandamus 

relief-when it either: (A) fails to perform a purely ministerial act, or 

(B) fails to consider a factor the Legislature directs it to consider, or 

considers an irrelevant factor. 

3. Defendants considered all of the provisions of the Ordinance as well as 

the relevant factors as per Article 4, Section C(2) of the Ordinance, and 

denial of DRCP' s Development Permit did not constitute an abuse of 

discretion. 

4. Defendants were not required to provide the reasons for denying DRCP' s 

Development Permit Application and Supplemental Application at the 

time of issuing the denial, and the failure to do so, did not constitute an 

abuse of discretion. 

5. Defendants did not consider any irrelevant factors when denying DRCP' s 

Development Permit Application and Supplemental Application and the 

denial of same did not constitute an abuse of discretion. 

6. Defendants' reference to the best interest of the county, floodwater 

quality, surface coal mining regulations, and personal experience was not 

a basis for Defendants' decision standing alone and that reference did not 

render Defendants' denial of DRCP' s Development Permit Application 

and Supplemental Application arbitrary and capricious. 

7. The Ordinance does not deprive DRCP of the use of its property because 

Defendants' denial of DRCP's Development Permit Application does not 

deprive it of all economically viable uses of its property, therefore due 

process is not an issue, and the denial was not arbitrary or capricious or an 

abuse of discretion. 

8. The Floodplain Administrator was required, under Article 4, Section C(2) 

to approve or deny DRCP's Development Permit Application and 

Supplemental Application based on all of the provisions of the Ordinance, 

and the relevant factors listed in (a)-G). 

9. The Floodplain Administrator was not required, and did not have a 

ministerial duty to grant DRCP' s Development Permit Application and 

Supplemental Application if the Floodplain Administrator found that the 

application did not meet the provisions of the Ordinance and relevant 

factors. 

5 

3205 
3212

10. DRCP's Development Permit Application and Supplemental Application 

did not satisfy the requirements of the Ordinance and the act of approving 

or denying it was not a ministerial act therefore, the Floodplain 

Administrator's denial of the permit was not illegal, arbitrary or 

capricious or an abuse of discretion. 

6 

F\LED 

A+±03o'CLOCK£_M 

DEC 5 2014 

3206 
TAB 3
 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 12/22/2014 3:27:24 PM DORIAN E. RAMIREZ Clerk




















TAB 4
 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 12/22/2014 3:27:24 PM DORIAN E. RAMIREZ Clerk
TAB 5





Authorities 
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)

42 Tex. Sup. Ct. J. 513

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

990 S.W.2d 245

Supreme Court of Texas.

Scott BRADLEY, Petitioner,

v.

The STATE of Texas on the Relation

of Dale WHITE, Respondent.

No. 97–1135. | Argued Sept.

28, 1998. | Decided April 8, 1999.

State brought quo warranto action when mayor purported

to remain in office after removal trial conducted by board

of aldermen. The 342nd District Court, Tarrant County,

Bob McGrath, J., entered summary judgment for mayor,

and State appealed. The Court of Appeals, 956 S.W.2d

725, reversed and rendered. Mayor filed petition for review.

The Supreme Court, Baker, J., held that testimony of

aldermen in proceeding in which board of aldermen were

adjudicating whether to remove mayor from office violated

rule prohibiting judge from acting as witness in trial over

which judge is presiding, and thus, board of aldermen did not

lawfully remove mayor from office.

Reversed and rendered.

Abbott, J., filed a concurring opinion.

Attorneys and Law Firms

*246 Bob E. Shannon, Joe R. Greenhill, Scott K. Field,

Austin, E. Eldridge Goins, Jr., James W. Morris, Jr., Jeffrey

S. Wigder, Dallas, for Petitioner.

Ann Diamond, Tim Curry, Marshall M. Searcy, Jr., Dee J.

Kelly, William N. Warren, Michael Schattman, Barbara P.

Neely, Fort Worth, for Respondent.

Opinion

Justice BAKER delivered the opinion of the Court, in which

Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH,

Justice OWEN, Justice HANKINSON, Justice O'NEILL and

Justice GONZALES join.

This is a quo warranto case. Scott Bradley asserts that the

Board of Aldermen of the Town of Westlake, Texas did

not lawfully remove him as Mayor under section 21.002(f)

of the Texas Local Government Code because the removal

proceedings violated Texas Rule of Civil Evidence 605.

1

 We

agree. Therefore, we reverse the court of appeals' judgment

for the State and render judgment for Bradley.

I. BACKGROUND

In May 1994, Scott Bradley was elected Mayor of Westlake, a

general-law municipality. He was reelected in May 1996. On

April 14, 1997, Howard Dudley, a Westlake alderman, filed

a complaint against Bradley alleging official misconduct and

incompetency. Specifically, Dudley alleged that Bradley (1)

canceled a special town meeting called by alderman Carroll

Huntress and removed the public notice of the meeting; (2)

directed the Town Secretary to exclude from the meeting

agenda an item Huntress requested and to remove a part of

the proposed minutes from another town meeting; and (3)

caused the Town Engineer to prepare a false boundary map of

Westlake, and then presented the falsified map to the Board

of Aldermen as part of an ordinance.

On April 28, 1997, the Westlake Board of Aldermen sat as

a court to hear the charges against Bradley and to decide

whether there was sufficient cause for his removal from

the Mayor's office. During the trial, Dudley and another

alderman, Al Oien, testified against Bradley. Dudley testified

that he had provided Bradley with a request for and notice

of the meeting Bradley allegedly canceled. Oien testified

that when the Board passed the ordinance at issue, no map

was attached to it. At the end of the trial, four of the five

aldermen, including Dudley and Oien, found Bradley guilty

of the charges. On motion made by Oien and seconded by

Dudley, the Board voted to remove Bradley as Mayor of

Westlake. Days later, the aldermen appointed Dale White as

Mayor. Bradley refused to recognize the aldermen's judgment

on the grounds that the removal procedure violated applicable

procedural rules, substantive state law, and his federal and

state constitutional rights.

On May 20, 1997, the State of Texas, on relation of Dale

White, filed a quo warranto action seeking a declaration

that White, not Bradley, was the lawful Mayor. The State

alleged that: (1) the aldermen had lawfully removed Bradley

from the Mayor's office under Texas Local Government Code

section 21.002(f); (2) the aldermen had lawfully appointed

Dale White as Mayor; (3) White had taken the oath of office

on May 2, 1997, and therefore, lawfully held office as Mayor;

and (4) Bradley had unlawfully usurped and intruded into the

Mayor's office since his lawful removal. The State filed a
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)

42 Tex. Sup. Ct. J. 513

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

motion for summary *247 judgment asserting as grounds the

allegations in its quo warranto petition.

Bradley filed a cross-motion for summary judgment. In his

summary judgment motion Bradley alleged the following

affirmative defenses: (1) Texas Local Government Code

section 21.002 violates the Texas Constitution's separation

of powers doctrine; (2) section 21.002 is unconstitutionally

vague; (3) Bradley's removal trial violated his federal and

state procedural due process rights; (4) a section 21.002

removal trial is penal in nature, and Bradley was denied his

state constitutional right to a jury trial; (5) the aldermen were

disqualified under the Texas Constitution to sit as judges

in the removal trial because they had a pecuniary interest

in the outcome; (6) the removal trial violated Texas Rules

of Civil Evidence 605, 607, and 611b, and Texas Rules of

Civil Procedure 18b, 527, 528, 544, and 571; (7) the removal

trial violated the Texas Open Meetings Act; (8) the evidence

at trial did not support Bradley's removal; (9) the removal

judgment became a nullity when a new board of aldermen

granted Bradley's motion for new trial; and (10) the removal

judgment became a nullity when Bradley filed an appeal bond

with the new board of aldermen.

The trial court denied the State's motion for summary

judgment and granted Bradley's motion for summary

judgment without specifying upon which of Bradley's

summary judgment grounds it based its judgment. The court

of appeals held that the State had conclusively proved the

elements of its quo warranto action. 956 S.W.2d at 745. The

court of appeals also held that Bradley had not conclusively

proved all essential elements of his defense in quo warranto as

a matter of law nor had he defeated at least one element of the

State's quo warranto claim. Accordingly, the court of appeals

reversed the trial court's judgment and rendered summary

judgment for the State.

II. APPLICABLE LAW

A. STANDARD OF REVIEW—CROSS

MOTIONS FOR SUMMARY JUDGMENT

[1] [2] [3] [4] When both sides move for summary

judgment and the trial court grants one motion and denies the

other, the reviewing court should review both sides' summary

judgment evidence and determine all questions presented.

See Commissioners Court of Titus County v. Agan, 940

S.W.2d 77, 81 (Tex.1997); Jones v. Strauss, 745 S.W.2d

898, 900 (Tex.1988). The reviewing court should render

the judgment that the trial court should have rendered. See

Agan, 940 S.W.2d at 81; Members Mut. Ins. Co. v. Hermann

Hosp., 664 S.W.2d 325, 328 (Tex.1984). If a party brings

the case to this Court and we reverse the court of appeals,

we should render the judgment that the court of appeals

should have rendered. See Agan, 940 S.W.2d at 81; Tobin

v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400–01 (1958).

When a trial court's order granting summary judgment does

not specify the grounds relied upon, the reviewing court

must affirm summary judgment if any of the summary

judgment grounds are meritorious. See Star–Telegram, Inc. v.

Doe, 915 S.W.2d 471, 473 (Tex.1995). We do not consider

constitutional challenges when we can dispose of a case on

nonconstitutional grounds. See Transportation Ins. Co. v.

Moriel, 879 S.W.2d 10, 13 (Tex.1994).

B. REMOVAL PROCEDURES

The Texas Local Government Code governs a mayor's

removal from office in a general-law municipality. See TEX.

LOC. GOV'T CODEE § 21.002. A mayor may be removed

from office for official misconduct, intentional violation of

a municipal ordinance, habitual drunkenness, incompetency,

or a cause prescribed by a municipal ordinance. See TEX.

LOC. GOV'T CODEE § 21.002(c). When a complaint is

made against the mayor, the complaint must be presented

to an alderman of the municipality. See TEX. LOC. GOV'T

CODEE § 21.002(f). *248 The alderman shall then file the

complaint, serve the mayor with a copy, set a date for trial

of the case, and notify the mayor and the other aldermen

to appear on that day. See TEX. LOC. GOV'T CODEE

§ 21.002(f). A majority of the municipality's aldermen

constitutes a court in the mayor's removal trial with one of

the aldermen presiding over the trial. See TEX. LOC. GOV'T

CODEE § 21.002(f). If two-thirds of the members of the

court who are present at the trial find the mayor guilty of the

complaint's charges and find that the charges are sufficient

cause for removal from office, the court's presiding officer

shall enter a judgment removing the charged officer and

declaring the office vacant. See TEX. LOC. GOV'T CODEE

§ 21.002(h).

Section 21.002 removal proceedings are subject to the

procedural rules governing the justice courts and to

procedural rules governing district and county courts, to

the extent these govern justice courts. See TEX. LOC.

GOV'T CODEE § 21.002(h); TEX.R. CIV. P. 523 (“All rules
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)

42 Tex. Sup. Ct. J. 513

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

governing the district and county courts shall also govern the

justice courts, insofar as they can.”) In addition, the Texas

Rules of Civil Evidence apply to section 21.002 trials. See

TEX.R. CIV. EVID. 101(b) (“[E]xcept as otherwise provided

by statute, these rules govern civil proceedings in all Texas

courts other than small-claims courts.”).

C. TEXAS RULE OF CIVIL EVIDENCE 605

“The judge presiding at the trial may not testify in that

trial as a witness. No objection need be made in order to

preserve this point.” TEX.R. CIV. EVID. 605. Texas Rule

of Civil Evidence 605 is identical to its federal counterpart.

See FED.R.EVID. 605. Not surprisingly, there are few

reported federal or state cases involving Rule 605 violations.

Most cases that do involve judges testifying at the trial

over which they are presiding are decided on due process

grounds. See, e.g.,Brown v. Lynaugh, 843 F.2d 849, 851 (5

th Cir.1988); Tyler v. Swenson, 427 F.2d 412, 415 (8 th

Cir.1970); Terrell v. United States, 6 F.2d 498, 499 (4 th

Cir.1925); Haynes v. State of Missouri, 937 S.W.2d 199, 202

(Mo.1996); Wilson v. Oklahoma Horse Racing Comm'n, 910

P.2d 1020, 1024 (Okla.1996). These cases hold that a judge

testifying as a witness violates due process rights by creating

a constitutionally intolerable appearance of partiality. See

Brown, 843 F.2d at 851 (“[I]t is difficult to see how the

neutral role of the court could be more compromised, or more

blurred with the prosecutor's role, than when the judge serves

as a witness for the state.”); Tyler, 427 F.2d at 416 (“The

danger ... of subjecting [the judge's] impartiality to doubt

and of placing the [party against whom the judge testifies]

at an unfair disadvantage ... is very obvious.”); see also In

Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed.

942 (1955)(disapproving of the “spectacle” of a trial judge

presenting testimony which he must consider in adjudicating

guilt or innocence).

Rule 605 is similarly concerned with the appearance of

partiality. See Hensarling v. State, 829 S.W.2d 168, 170

(Tex.Crim.App.1992)(referring to Texas Rule of Criminal

Evidence 605, which is identical to Texas Rule of Civil

Evidence 605 and noting that the Rule's purpose is to

preserve the judge's posture of impartiality before the parties

and the jury); WRIGHT & GOLD, FEDERAL PRACTICE

AND PROCEDURE: EVIDENCE § 6062 (1990)(referring to

Federal Rule of Evidence 605).

Comments of the Federal Advisory Committee on Proposed

Rules indicate that Federal Rule of Evidence 605 purports

to protect the appearance of impartiality. The Committee

describes Federal Rule of Evidence 605 as:

a broad rule of incompetency, rather

than [a rule of] incompetency only

as to material matters, leaving the

matter to the discretion of the judge,

or recognizing no incompetency. The

choice is the result of inability

to evolve satisfactory answers to

questions which arise when the judge

abandons the bench for the witness

stand. Who rules on objections? *249

Who compels him to answer? Can

he rule impartially on the weight and

admissibility of his own testimony?

Can he be impeached or crossexamined effectively? Can he, in a

jury trial, avoid conferring his seal of

approval on one side in the eyes of

the jury? Can he, in a bench trial,

avoid an involvement destructive of

impartiality?

FED.R.EVID. 605 advisory committee's note.

Indeed, one of the few federal cases to apply Rule 605 held

that it was reversible error for a trial judge's law clerk to testify

about facts favorable to the plaintiff because the danger that

the jury would identify the law clerk with the trial judge was

obvious. See Kennedy v. Great Atl. & Pac. Tea Co., 551 F.2d

593, 598 (5 th Cir.1977). The court held that the “potential

for prejudice” was so great that it rendered inquiry into actual

prejudice to the parties “fruitless.” See Kennedy, 551 F.2d at

598.

[5] Rule 605 does not only apply to members of the

judiciary, but also to those performing judicial functions that

conflict with a witness's role. See Gary W. v. Louisiana Dept.

of Health and Human Resources, 861 F.2d 1366, 1368 (5

th Cir.) (applying Rule 605 to prohibit deposition of special

master appointed to ensure compliance with protective order

in family law case); Central Platte Natural Resources Dist.

v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847, 864

(1994) (applying Rule 605 and holding that court properly

excluded testimony of doctor who assisted in decision making

process in administrative adjudication); but see Williams v.
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)

42 Tex. Sup. Ct. J. 513

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

State, 11 Ark.App. 11, 665 S.W.2d 299 (1984) (permitting

testimony from trial court's bailiff, called as a rebuttal witness

to impeach a defense witness's credibility).

III. ANALYSIS

[6] Because the trial court did not specify upon which

ground it rendered summary judgment for Bradley, we can

render judgment for Bradley if one of Bradley's summary

judgment grounds is meritorious. See Star–Telegram, 915

S.W.2d at 473. We first consider Bradley's nonconstitutional

summary judgment grounds. See Moriel, 879 S.W.2d at 13.

One of Bradley's summary judgment grounds is that he was

not lawfully removed from office as the State's quo warranto

action alleges because Oien and Dudley testified against him

while they sat in judgment over his removal trial, violating

Texas Rule of Civil Evidence 605. The court of appeals

responded to Bradley's Rule 605 argument by citing case law

that holds that aldermen who assert a complaint against a

mayor are not disqualified from judging the mayor's removal

hearing. See Riggins v. Richards, 97 Tex. 229, 77 S.W. 946,

949 (1904). The court of appeals then noted that section

21.002 allows all citizens of general-law municipalities,

including aldermen, to file a complaint against a mayor. See

TEX. LOC. GOV'T CODEE § 21.002(f). However, the court

of appeals did not discuss the aldermens' dual roles as judges

and witnesses against Bradley in the removal trial.

Although Oien and Dudley are not members of the judiciary,

they assumed judicial roles in the removal trial, roles

which conflicted with their roles as witnesses. Section

21.002 required the aldermen to sit as a “court” over

the removal “trial.” See TEX. LOC. GOV'T CODEE §

21.002(f), (g), and (h). Oien and Dudley, along with their

fellow aldermen, decided whether Bradley had committed the

acts the complaint described and if so, whether these acts

warranted removal.

Oien and Dudley testified against Bradley about the facts that

served as the basis for the complaint and then adjudicated

whether Bradley was guilty of the complaint's charges. Their

testimony created the appearance of bias that Rule 605 seeks

to prevent and such a potential for prejudice to Bradley that

inquiry into actual prejudice is fruitless. Accord Kennedy, 551

F.2d at 598. Therefore, we need not and do not conduct a harm

analysis.

*250 The concurring opinion asserts that section 21.002

is void for vagueness because the statute does not specify

which justice court and district court rules apply to removal

trials. The concurrence concedes, however, that the language

of section 21.002 and Texas Rule of Civil Procedure 523

indicate that Texas Rule of Civil Evidence 605 applies to

removal trials. The concurrence suggests that, nevertheless,

Rule 605 should not apply because aldermen may be the

only people familiar with the facts that form the basis for the

complaint against a mayor.

Here, however, there is no indication that Oien and Dudley's

testimony was necessary to the removal proceedings. On the

contrary, the record reveals that it was not. Bradley himself

admitted the substance of the first complaint. He testified at

the removal trial that he canceled the meeting Huntress had

called and removed the posted public notice of the meeting. 2

Bradley's concession rendered Dudley's testimony—that he

had provided Bradley with notice of and a request for the

meeting—unnecessary. The aldermen voted that Bradley was

guilty of canceling the meeting and removing notice of the

meeting and that those actions alone were sufficient cause for

removal. Accordingly, Oien's testimony, which dealt solely

with the falsified-map charge, was not necessary to the

removal proceedings either.

IV. CONCLUSION

We conclude that Oien and Dudley, by testifying, violated

Texas Rule of Civil Evidence 605. Therefore, the Board

of Aldermen did not lawfully remove Bradley as Mayor.

Because Bradley conclusively negated an element of the

State's quo warranto action—that the aldermen had lawfully

removed Bradley under section 21.002—the court of appeals

improperly reversed the trial court's judgment for Bradley.

We do not need to consider any of Bradley's other summary

judgment grounds. Accordingly, we reverse the court of

appeals' judgment and render judgment for Bradley on the

State's quo warranto action. We declare that Bradley was the

lawful Mayor of the Town of Westlake when the State filed

its quo warranto action.

Justice ABBOTT filed a concurring opinion.

Justice ABBOTT, concurring.
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)

42 Tex. Sup. Ct. J. 513

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

The Court holds that the Westlake Board of Aldermen

violated Texas Rule of Civil Evidence 605 when board

members who sat as judges in Bradley's removal court also

testified as witnesses against him. In so doing, the Court

sidesteps a more fundamental flaw in the removal: the statute

governing removal proceedings is unconstitutionally vague

and thus denies Bradley due process and due course of law.

See U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, §

19. Because I would hold the statute used to remove Bradley

is void for vagueness, I concur in the Court's judgment.

I

The statute providing for removal of a mayor in a generallaw municipality such as Westlake states that “a majority

of the aldermen constitutes a court to try and determine

the case against the mayor,” and the removal proceeding

“is subject to the rules governing a proceeding or trial in

a justice court.” TEX. LOC. GOV'T CODE § 21.002(g),

(h). Bradley asserts that a removal proceeding is a civil

proceeding, and civil justice court rules provide for, among

other things, venue change, 1 empaneling of juries, 2 a right

to appeal, 3 and *251 a right to move for new trial. 4 Bradley

further argues that Rules of Civil Procedure and Evidence

apply through Texas Rule of Civil Procedure 523, which

states that “[a]ll rules governing the district and county courts

shall also govern the justice courts, insofar as they can be

applied, except where otherwise specifically provided by law

or these rules.” TEX.R. CIV. P. 523. Bradley contends that

these applicable rules provide for recusal of judges, 5 prohibit

judges from testifying in cases in which they sit, 6 and

allow the right to full cross-examination and impeachment of

witnesses. 7

The State responds that “to graft onto § 21.002 all of the

rules of civil procedure would render the statute virtually

meaningless” and “would lead to an absurd result.” Following

the State's logic, the court of appeals concluded that justice

court rules should apply when they are “not in conflict with”

the intended structure of removal proceedings. 956 S.W.2d

725, 738.

Both approaches are flawed. Bradley's contention founders

upon the clear text of the statute. Although section 21.002(h)

states that a removal proceeding is subject to the rules

governing a justice court trial, several justice court rules

directly contravene requirements of section 21.002. For

example, Bradley requested a venue change and jury trial

that justice court rules provide for, but both requests conflict

with the statute's express statement that “[a] majority of

the aldermen constitutes a court to try and determine the

case against the mayor.” TEX. LOC. GOV'T CODE §

21.002(g). This specific textual provision of the statute

precludes Bradley's proposal to apply all justice court rules

and all rules of civil procedure. See TEX. GOV'T CODE §

311.026 (codifying the common-law doctrine for statutes in

pari materia, which states that when an irreconcilable conflict

occurs between a general and a special statutory provision,

the special provision prevails as an exception to the general

provision). As the State contends, application of all the justice

court rules and rules of civil procedure would lead to an

“absurd result.”

The interpretation of the statute that the State urges suffers

from its own flaws. The State's argument leaves it to the

caprice of the aldermen—many of whom are untrained in the

rules of procedure and evidence—to pick and choose which

rules may apply to a removal proceeding, and to choose which

rules may not apply because they are “in conflict with” the

structure of removal proceedings. A mayor subject to these

removal proceedings would not know exactly which rules

apply until the aldermen make that decision—a decision that

may not be made until the proceedings are already underway.

In effect, the State asks the Court to swap the “absurd result”

that follows from Bradley's contentions for the arbitrariness

that follows from its own proposal.

The Court should not be constrained to choose the lesser

of the evils presented by the parties. Instead, the statute's

unavoidable incongruities and ambiguities lead me to

conclude, as Bradley argues in the alternative, that it is

unconstitutionally vague.

II

Under the United States Constitution, “[i]t is a basic principle

of due process that an enactment is void for vagueness if

its prohibitions are not clearly defined. Vague laws offend

several important values.” Grayned v. City of Rockford, 408

U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). They

“may trap the innocent *252 by not providing fair warning”

and they “impermissibly delegate[ ] basic policy matters to

policemen, judges, and juries for resolution on an ad hoc

and subjective basis, with the attendant dangers of arbitrary

and discriminatory application.” Id. at 108–09, 92 S.Ct. 2294.
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)

42 Tex. Sup. Ct. J. 513

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In order to avoid these dangers, the Due Process Clause

requires that laws be reasonably clear. As the Supreme Court

explained, due process:

ensures that state power will be

exercised only on behalf of policies

reflecting an authoritative choice

among competing social values,

reduces the danger of caprice and

discrimination in the administration

of the laws, enables individuals

to conform their conduct to the

requirements of law, and permits

meaningful judicial review.

Roberts v. United States Jaycees, 468 U.S. 609, 629, 104 S.Ct.

3244, 82 L.Ed.2d 462 (1984).

Responding to these concerns, the United States Supreme

Court and this Court have long applied the principle that

statutory language may not be so vague that persons “of

common intelligence must necessarily guess at its meaning

and differ as to its application.” Connally v. General Constr.

Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322

(1926), quoted in Texas Antiquities Comm. v. Dallas County

Community College Dist., 554 S.W.2d 924, 928 (Tex.1977)

(plurality opinion).

Although the vagueness standard applies most frequently to

penal statutes, a civil statute may also be so vague that it

violates due process. See A.B. Small Co. v. American Sugar

Ref. Co., 267 U.S. 233, 239–40, 45 S.Ct. 295, 69 L.Ed. 589

(1925) (explaining that the rationale of previous vagueness

cases is not limited only to criminal cases because “[i]t was

not the criminal penalty that was held invalid, but the exaction

of obedience to a rule or standard which was so vague and

indefinite as really to be no rule or standard at all”); Jones v.

City of Lubbock, 727 F.2d 364, 373 (5 th Cir.1984); Texas

Antiquities Comm., 554 S.W.2d at 927–28 (plurality decision

striking down a civil statute as unconstitutionally vague).

The degree of clarity that the vagueness standard requires,

however, “varies according to the nature of the statute, and the

need for fair notice or protection from unequal enforcement.”

Jones, 727 F.2d at 373; see also Village of Hoffman Estates v.

The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102

S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“[Vagueness] standards

should not, of course, be mechanically applied. The degree

of vagueness that the Constitution tolerates—as well as the

relative importance of fair notice and fair enforcement—

depends in part on the nature of the enactment.”); Texas

Antiquities Comm., 554 S.W.2d at 927 (plurality decision

stating that “varying degrees of specific standards” have

been required in testing vagueness and breadth of legislative

delegations, “[d]epending upon the nature of the power, the

agency, and the subject matter”). In the case of this statute,

the Court should consider that few actors deserve more clarity

than elected officials who can be removed from office at the

hands of other competing elected officials.

III

The statute at issue, which provides for removal of a mayor

in a general-law municipality, is a civil statute. See Meyer v.

Tunks, 360 S.W.2d 518, 520–21 (Tex.1962) (action to remove

a county officer is civil in nature). Our vagueness review must

therefore apply a more tolerant standard for civil statutes. 8

The statute fails even under that deferential standard. In Texas

Antiquities Committee, a plurality of the Court professed that

“[t]here has been called to our *253 attention no case in

Texas or elsewhere in which ... powers ... are more vaguely

expressed or less predictable than those permitted by the

phrase in question.” Texas Antiquities Comm. 554 S.W.2d

at 927. 9 The exercise of powers under this statute is hardly

more predictable. In the context of a proceeding to remove a

mayor in which his fellow aldermen are directed to sit as a

court, the phrase “subject to the rules governing a proceeding

or trial in a justice court” may at first glance seem clear. When

one is forced to apply the provision, however, the inherent

ambiguities become inescapable. The confusion and potential

disregard for Bradley's rights that his petition describes—

as well as similar predicaments described by amici 10 —

illustrate this lack of a comprehensible standard.

A significant number of civil rules for a justice court

either conflict directly with the statute's scheme for removal

proceedings, 11 or they provide no relevant guidance to

a board of aldermen. 12 Whether other justice court rules

apply has been and will continue to be a matter of

guesswork for aldermen, mayors, and even reviewing courts,

leaving a situation ripe for “resolution on an ad hoc and

subjective basis, with the attendant dangers of arbitrary and

discriminatory application.” Grayned, 408 U.S. at 109, 92

S.Ct. 2294. For example, does the successful party recover

costs as provided by Civil Rule 559? 13 Can the removal

“court” order a new trial, as provided by Civil Rules 567–
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)

42 Tex. Sup. Ct. J. 513

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70? 14 If so, could a new trial be ordered by newly elected

aldermen taking the place of the aldermen who presided over

the original trial?

Texas Rule of Civil Procedure 523, which states that rules

governing district and county courts shall also govern justice

courts, creates an assortment of other conundrums. Do

Evidence Rule 605, prohibiting a judge from testifying as a

witness, and Texas Rule of Civil Procedure 18b, providing

for recusal of interested judges, apply to aldermen sitting

as removal judges? Evidently the Court believes that Civil

Procedure Rule 605 applies, and both of these rules would

seem to apply under the language of both the statute and Civil

Procedure Rule 523. However, these rules stand opposed

to the reality that the very aldermen who sit as a court to

try the mayor may also be the ones who bring the charge,

“may have substantial knowledge of the evidence to be

presented,” or may have had past differences with the mayor.

See Quinn v. City of Concord, 108 N.H. 242, 233 A.2d 106,

108 (1967); see also Rutter v. Burke, 89 Vt. 14, 93 A. 842,

849 (1915) (holding that a mayor who acted as accuser,

prosecutor, and witness was not disqualified from voting,

because “the Constitution of the city council, its exclusive

jurisdiction as a trier, and the diversity of duties imposed upon

it, preclude the idea that impartiality can be made the test”

of the right of a board member to sit in a proceeding); State

v. Common Council, 72 Wis.2d 672, 242 N.W.2d 689, 698

(1976) *254 ( “[T]he mere fact that [a council member]

had stated under oath ... that there were grounds to remove

[the city clerk] did not disqualify him from subsequently

sitting as an impartial adjudicator.”); 4 MCQUILLIN, THE

LAW OF MUNICIPAL CORPORATIONS § 12.259.20, at

595 (3rd ed. 1992) (“[I]n a proceeding to remove, members

of the council are not disqualified because of the fact that they

were members of a committee to investigate and afterwards

preferred charges; the fact that they may have formed an

opinion concerning the accused is regarded as immaterial.”).

Indeed, the aldermen may well be the only people familiar

with the facts underlying the removal proceeding. Cf. id.

§ 12.259.25, at 598 (“Particularly, an objection for bias

against ... a member of a hearing tribunal will not be sustained

where to do so would destroy the only tribunal with power

in the premises.”). Rare would be the occasion when a

mayor could be tried by truly disinterested, unbiased, and

uninformed aldermen. Yet that is the fiction that the Court

forces upon the parties.

Ignoring these probabilities and applying these rules sets the

stage for future enigmas. For instance, the statute states that

“a majority of the aldermen constitutes a court.” Assuming,

as the Court does, that Evidence Rule 605 or Civil Procedure

Rule 18b apply, what occurs if at least half of the aldermen

must be recused because of bias or the necessity that

they testify? The statute provides no guidance—“no rule or

standard at all.” 15 Neither does the Court.

IV

Admittedly, courts “will often strain to construe legislation

so as to save it against constitutional attack.” Scales v.

United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 6 L.Ed.2d

782 (1961). Nevertheless, even if the Court assumed the

burden of repairing this paradoxical statute, the task would

require such a revision of the Legislature's words that

the Court would exceed the bounds of its proper role in

our divided government. The “constructions” urged by the

parties would require us either to ignore specific words

of the statute or to write our own ad hoc exceptions

into the statute. As one scholar has recognized, “there

is a difference between adopting a saving construction

and rewriting legislation altogether.” TRIBE, AMERICAN

CONSTITUTIONAL LAW § 12–30, at 1032 (2d ed., 1988).

We are invited to do the latter, but I believe we should

decline the invitation. See West Virginia State Bd. of Educ.

v. Barnette, 319 U.S. 624, 651, 63 S.Ct. 1178, 87 L.Ed. 1628

(1943) (“It is, of course, beyond our power to rewrite the

State's requirement....”) (Frankfurter, J., dissenting); United

States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875) (“To

limit this statute in the manner now asked for would be to

make a new law, not to enforce an old one. This is no part of

our duty.”).

Rewriting a statute rife with traps and uncertainties is the

power and duty of the Legislature. As the controversy at

hand evinces, the decisions of local governments affect the

lives of their citizens as profoundly and concretely as those

of any other level of government. Sometimes a mayor's

conduct necessitates removal proceedings. Nevertheless,

such proceedings can reverse a majority of the local citizens'

judgment as to who is best to lead them. Consequently, our

state government owes a duty not only to the mayor but to his

colleagues and constituents to ensure that such proceedings

are neither arbitrary nor unfair, and never unconstitutional.

This vague and unwieldy statute fails to carry out the task. I

urge the Legislature to mend it soon.
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)

42 Tex. Sup. Ct. J. 513

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

All Citations

990 S.W.2d 245, 42 Tex. Sup. Ct. J. 513

Footnotes

1 Because the removal trial was held April 28, 1997, the former Texas Rules of Civil Evidence apply. Former Texas Rule

of Civil Evidence 605 is identical to current Texas Rule of Evidence 605. See TEX.R. EVID. 605.

2 Bradley testified that he canceled the meeting and removed the notice because it was an illegally called meeting.

1 See TEX.R. CIV. P. 528.

2 See TEX.R. CIV. P. 544.

3 See TEX.R. CIV. P. 573.

4 See TEX.R. CIV. P. 567.

5 See TEX.R. CIV. P. 18b.

6 See TEX.R. CIV. EVID. 605 (currently TEX.R. EVID. 605).

7 See TEX.R. CIV. EVID. 607 (currently TEX.R. EVID. 607); TEX.R. CIV. EVID. 611(b) (currently TEX.R. EVID. 611 (b)).

8 See Chavez v. Housing Auth., 973 F.2d 1245, 1249 (5 th Cir.1992) (A civil statute that does not implicate the First

Amendment is sufficiently unclear to violate due process if it is “ ‘so vague and indefinite as really to be no rule or standard

at all’ or if it is ‘substantially incomprehensible’ ”); Jones, 727 F.2d at 373 (same).

9 The vague phrase in Texas Antiquities Committee was “buildings ... and locations of historical ... interest.” Id.

10 Amici Paul Skelton and Marian Hill describe their experiences with removal proceedings in Parker and Seven Points,

Texas. Skelton argues that the court of appeals' construction of the removal statute violates separation of powers and

due process guarantees. Hill argues that the removal statute in question is unconstitutionally vague.

11 See TEX.R. CIV. P. 527–32 (relating to motions to transfer and venue changes); TEX.R. CIV. P. 540, 542, 544–56

(relating to juries).

12 See TEX.R. CIV. P. 524 (justices to keep a civil docket); TEX.R. CIV. P. 533 (requisites for writ or process from justice

courts); TEX.R. CIV. P. 543 (dismissal for plaintiff's failure to appear); TEX.R. CIV. P. 560 (judgment for specific articles

of property); TEX.R. CIV. P. 561 (enforcing a judgment for property).

13 See TEX.R. CIV. P. 559.

14 See TEX.R. CIV. P. 567–70.

15 See Chavez, 973 F.2d at 1249; Jones, 727 F.2d at 373.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

844 S.W.2d 773

Court of Appeals of Texas,

Dallas.

CITY OF AUSTIN, Appellant,

v.

HOUSTON LIGHTING & POWER COMPANY

and Houston Industries, Inc., Appellees.

No. 05–89–01354–CV. | Oct. 7,

1992. | Rehearing Denied Nov. 18, 1992.

City which participated in nuclear facility construction

project sued managing participant for breach of contract,

fraud, and violation of Deceptive Trade Practices Act

(DTPA). The 101st Judicial District Court, Dallas County,

Clarence A. Guittard, J., rendered take-nothing judgment

for managing participant. City appealed. The Court of

Appeals, Kinkeade, J., held that: (1) managing participant

had no implied duty to perform contract with skill and care;

(2) certain newspaper articles were not hearsay; and (3)

managing participant did not violate DTPA.

Affirmed.

Attorneys and Law Firms

*777 Fulbright & Jaworski, Roger Townsend, Ronald J.

Palmer, Ben Taylor, Jeff Dykes, Jeffrey S. Wolff, Houston,

Carrington, Coleman, Sloman & Blumenthal, James E.

Coleman, Marvin S. Sloman, Dallas, Liddell, Sapp, Zivley,

Hill & Laboon, John L. Hill, Jr., Roy Atwood, Houston, City

of Austin, Iris J. Jones, Acting City Atty., John T. Gooding

II, Mark G. Yudof, Austin, for appellant.

Graves, Dougherty, Hearon & Moody, Robert J. Hearon, Jr.,

Thomas B. Hudson, Jr., Matthew G. Dore, Michael Diehl,

Selden W. Bobbitt, Austin, Baker & Botts, Finis E. Cowan, J.

Gregory Copeland, Houston, Baker & Botts, Joe R. Greenhill,

Minton, Burton, Foster & Collins, Roy Q. Minton, Martha S.

Dickie, Austin, for appellees.

Before THOMAS, KINKEADE and OVARD, JJ.

OPINION

KINKEADE, Justice.

City of Austin (Austin) appeals a take-nothing judgment

rendered in favor of Houston Lighting & Power Company

and its parent company, Houston Industries, Inc. (collectively

HL & P), in this action for breach of a contract to build a

nuclear power plant, fraud, and violation of the Deceptive

Trade Practices Act (DTPA). In six points of error, Austin

argues that the trial court erred by (1) sustaining HL & P's

special exceptions to Austin's cause of action for breach

of the implied duty to perform the contract with skill

and care, (2) overruling Austin's hearsay objections to the

admission of several newspaper articles, (3) refusing Austin's

requested jury questions and instructions, (4) overruling

Austin's objections to jury question two, and (5) overruling

Austin's motion for new trial. HL & P raises what it

characterizes as two conditional cross-points, but what this

Court would term counterpoints. See Jackson v. Ewton, 411

S.W.2d 715, 717 (Tex.1967); Ragsdale v. Progressive Voters

League, 743 S.W.2d 338, 342 (Tex.App.—Dallas 1987),

rev'd on other grounds,790 S.W.2d 77 (Tex.1990). HL &

P argues that we should affirm the trial court's judgment

because there is no evidence that any failure by HL & P to

provide information caused any cost increase and because

Austin is not a “consumer” as to HL & P as defined by the

DTPA. Because the trial court did not err by (1) granting

HL & P's special exceptions, (2) admitting the newspaper

*778 articles, (3) refusing to submit Austin's requested jury

questions and instructions, (4) overruling Austin's objections

to jury question two, and (5) denying Austin's motion for new

trial, we overrule all of Austin's points of error and need not

address HL & P's cross-points in which HL & P asks only for

affirmance. We affirm the trial court's judgment.

FACTUAL HISTORY

The Lower Colorado River Authority (LCRA), Central

Power & Light (CP & L), the City of San Antonio (San

Antonio), Austin, and HL & P all belong to the South

Texas Interconnected Systems. Formed in the 1940's, this

interconnected group provides for the sharing of electricity

in emergencies and the staggered building of additional units

to the individual systems to take advantage of each other's

generation powers. On July 14, 1971, the group met and

discussed for the first time the possibility of building a jointly

owned nuclear power plant.

On December 14, 1971, all of the participants in this

interconnected entered into a preliminary agreement to share

the costs of studies to determine the feasibility of licensing,
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

constructing, and operating a jointly owned two-unit nuclear

powered electric generating plant. The group formed a study

committee, which employed the Nuclear Utilities Systems

Corporation to conduct feasibility studies. Upon completion

of these feasibility studies, each participant would decide

whether to agree to participate and build the South Texas

Project (the project).

In its report presented to the study committee on January

13, 1972, Nuclear Utilities Systems estimated that it would

take twenty-two staff members of HL & P to handle the

project and estimated the cost of the project at $902 million

for both units. The report also projected October 1, 1980, as

the completion date for unit one and March 1, 1982, for unit

two. Having tentatively decided, after receiving this report,

to build a jointly owned nuclear power plant and wanting to

avoid delays in proceeding with preliminary work pending

completion and execution of a participation agreement, all

of the participants entered into an interim agreement on

June 15, 1972. In this agreement, the participants chose

HL & P as the project manager. HL & P agreed to serve

as the project manager without compensation, except for

the reimbursement of project-related expenses, including

overhead. In the construction of a nuclear power plant,

regulations require the project manager to act as licensee

and to represent the project before the Nuclear Regulatory

Commission (NRC).

In September 1972, LCRA and Austin decided not to

participate in the project. On September 6, 1972, LCRA

authorities passed a resolution not to participate in the project

because they felt that nuclear power plants were still in the

experimental stage and that the economics of such plants

were questionable. Austin chose not to participate because its

voters did not approve the bonds for the project.

On July 1, 1973, San Antonio, CP & L, and HL & P

executed the participation agreement, which provided for the

joint licensing, construction, operation, and maintenance of

the project. Each participant owned an undivided interest as

follows: San Antonio, thirty percent (30%); CP & L, thirty

percent (30%); and HL & P, forty percent (40%). Under the

participation agreement, the owners agreed to share all costs

proportionately. The agreement provided for a management

committee, composed of an officer or general manager from

each participant, and a project manager. The agreement also

provided that the project manager could be removed by a

simple majority vote.

As project manager, HL & P's responsibility included

hiring an Architect/Engineer(A/E)-constructor to design and

build the plant. In June 1972, after an allegedly intensive

investigation, HL & P tentatively recommended Brown

& Root to the study committee for the position of A/Econstructor on the project. Before making a final commitment

to hire Brown & Root, however, HL & P wanted to further test

Brown & Root's capabilities by having it do additional sitestudy work for the project and assist *779 in developing the

specifications for the project's nuclear steam supply system.

The steam supply system takes the steam produced by the

heat from the nuclear reactor and transfers it to the turbine

generator, which in turn rotates and produces electricity.

On June 11, 1974, after Brown & Root completed these

tasks to all of the participants' satisfaction, HL & P and

Brown & Root signed a contract in which Brown & Root

agreed to act as the A/E-constructor for the project. Brown

& Root contracted for a fixed profit, or “cost plus” basis,

and the contract required it to complete ninety percent of the

total engineering work before starting construction. All of

the participants previously had employed Brown & Root to

perform various construction projects and were satisfied with

its work. They also knew that Brown & Root had no previous

nuclear experience and that this was the first nuclear power

plant Brown & Root had contracted to design and build.

Brown & Root's responsibilities as A/E-constructor included

aiding HL & P in evaluating and selecting the steam

supply system unit for the project. At the July 13, 1973

management committee meeting, HL & P discussed in detail

its and Brown & Root's bid analyses and recommended

the selection of the Westinghouse 3800 unit based on

Westinghouse's final contract. The participants accepted

HL & P's recommendation and signed a contract with

Westinghouse in 1974.

Austin's Entry into the Project

In late 1972 and early 1973, Austin began experiencing

problems with fuel availability. Austin relied entirely on

natural gas for its electricity generation. On May 24, 1973,

the Austin City Council received a report from the mayor's

Energy Study Commission, which recommended that Austin

participate in a joint venture for the development of coal or

lignite power or a joint venture for a nuclear power plant. It

did not specifically recommend that Austin participate in the

project.
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

In a November 1973 bond election, Austin voters approved

$161 million for Austin to participate in the project. On

December 14, 1973, Austin's representative, R.L. Hancock,

began attending the management committee meetings. At that

meeting, he received all the back copies of the management

committee's meeting minutes. Austin never asked about the

contents of the previous meeting minutes or for any other

documents before signing the participation agreement. On

December 21, 1973, Austin joined the other participants in the

project by executing the first amendment to the participation

agreement. With the execution of the amendment, Austin

became a sixteen percent undivided interest owner with the

three other cotenants. The entry of Austin into the project

reapportioned the other participants' undivided interests as

follows: San Antonio, 28%; CP & L, 25.2%; and HL & P,

30.8%.

At the time Austin entered the project, it knew that (1) the

participants had chosen HL & P to act as project manager and

that HL & P's only involvement with nuclear power plants

was its recent experience with its Allens Creek project, (2)

Brown & Root had signed a letter of intent to act as the A/Econstructor on a “cost plus” basis, and (3) the size of the steam

supply system had been increased from 1150 megawatts to

1250 megawatts. Before entering the participation agreement,

Austin made no inquiry into the selection process used in

choosing the steam supply system, the budget, or Brown &

Root's technical capability to perform the job. Austin asked

only about the status of the contract with Brown & Root.

Between 1974 and 1979, the entire nuclear power industry

changed. In 1974, Congress separated promotion of nuclear

power from its regulation with the creation of the NRC.

Once the NRC took over the regulatory function, safety

requirements increased significantly. Between 1975 and

1979, the NRC issued new regulations about every two

weeks. These regulations were partly in response to a 1975

fire that struck the Brown's Ferry nuclear plant in Alabama

and the March 28, 1979 accident that occurred at the Three

Mile Island nuclear plant in Pennsylvania. As a result of

*780 a series of investigations of the Three Mile Island

accident, the NRC toughened its enforcement of regulations

and regulatory guides at all nuclear plants. The NRC stopped

all licensing reviews, shut down all plants with reactors

similar to those at Three Mile Island for a period of time, and

more rigidly interpreted its regulations.

Construction of the Project

In January 1973, the project participants agreed on the final

site selection in Matagorda County, just outside of Bay City,

Texas. CP & L purchased the property, and, in December

1973, Brown & Root submitted its first cost and schedule

estimate for the project. In May 1974, HL & P submitted the

preliminary safety analysis report to the NRC. This ended the

preliminary design phase. HL & P then turned its attention

toward getting the limited work authorization, which HL & P

needed in order to obtain a construction permit.

In June 1975, Brown & Root issued a revised preliminary

construction cost estimate. This estimate projected an

increase of costs from $1 billion to $1.27 billion. Concerned

about this estimate, HL & P subjected Brown & Root to a

thorough audit of its overall administration and management

of the project. This audit identified many concerns as to

Brown & Root's performance, including whether it could

meet the scheduled operating dates. Although HL & P told

Brown & Root of its concerns at that time, it did not inform

the management committee of its discoveries. On August

4, 1975, HL & P sent a letter to the participants informing

them that Brown & Root had not properly validated the cost

estimate and expressed concern that the cost estimate was

incorrect and needed modification.

In September 1975, pursuant to the limited work

authorization permit received in August 1975, Brown &

Root began clearing the plant site and performing other

preliminary non-safety-related construction. After satisfying

the NRC's requirements, the project received its construction

permit, which allowed Brown & Root to begin safety-related

construction in December 1975, ten days ahead of schedule.

In early 1976, in response to Brown & Root's complaints

about Westinghouse's failure to produce design documents on

time, HL & P hired an engineering consultant to determine

how Westinghouse's many design changes to its 3800 unit

affected the schedule. The audit showed that the changes had

affected the schedule. HL & P shared the results of this audit

with Westinghouse but not with the management committee.

1976 Decision to Start Safety–Related Construction

In 1971, based on the performance of A/E-constructors on

other nuclear projects, Brown & Root estimated that it would

take a total of one million engineering man-hours to complete
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

the project's engineering work. By September, 22, 1975, this

number had increased to almost 2 million, sixty percent of

which Brown & Root had already used. At the March 1976

management committee meeting, Brown & Root represented

that it had completed this percentage. The project, however,

ultimately required fifteen to twenty million engineering

man-hours. Therefore, in hindsight, Brown & Root actually

had completed less than eight percent of the total engineering

work eventually performed on the project.

At each monthly management committee meeting, HL &

P provided the participants with (1) a monthly progress

report, which included an engineering progress report, (2) a

construction progress report, and (3) an executive summary

report. These reports visually showed which items were on or

behind schedule and provided a written explanation.

At the March 1976 management committee meeting, Brown

& Root reported that its engineering and construction were

both on schedule. When asked whether its engineering

could support the construction schedule, Brown & Root's

representative responded, “Hell, yes.” After receiving this

assurance from Brown & Root, the management committee

voted to let safety-related construction begin. As noted

earlier, Brown & Root already had started construction under

a limited work authorization *781 in September 1975.

It already had dug the hole for the reactor containment

building, had started placing rebar, and had poured some

nonpermanent structural concrete. In April 1976, Brown &

Root began safety-related construction, which meant that it

started pouring the concrete for the permanent structures.

1977 Management Analysis Company Audit

The project remained close to schedule for the next year.

In 1977, however, Brown & Root fell behind the original

schedule set for the project. In response, HL & P hired the

Management Analysis Company, a managing consultant that

advises utilities, pipeline companies, suppliers, A/Es, and

constructors on financial planning matters as well as project

construction and operations management. HL & P asked

Management Analysis to perform an evaluation and audit of

HL & P's project management organization and to identify

problems that could critically impact the achievement of the

project. Management Analysis presented its findings in a

draft report to HL & P in June 1977. The report identified

three major concerns: (1) project procurement; (2) the cost

and schedule estimate; and (3) project organization, including

policy and procedure manuals.

HL & P determined that the draft report furnished enough

information to correct the problems and directed Management

Analysis not to prepare a final report, though it felt that

some of the information in the draft report was inaccurate.

On June 10, 1977, HL & P gave an oral report to the

management committee of Management Analysis's findings

and the major items that HL & P thought it needed to pursue

with corrective action. None of the committee members

requested a copy of the written report. In response to the

report, HL & P undertook several actions to carry out

Management Analysis's recommendations. Also in response

to the report, the management committee formed a task force

composed of people from Brown & Root, HL & P, and

Management Analysis to develop a realistic cost and schedule

estimate.

In September 1978, the task force presented an interim report,

which added eighteen months to the schedule and estimated

the final cost at $2 billion. The task force further determined

that significant cost and schedule increases were necessary

and that it needed six additional months to develop a more

definitive estimate. HL & P sent Austin a copy of this report.

In November 1978, HL & P met with Austin's mayor, its

city council, assistants, and staff, and its Citizens' Electric

Utility Commission at the airport in Houston to provide them

with an update on the project. HL & P allegedly tried to

answer questions and make Austin's representatives aware

of the uncertain status of the estimates. Later, newspaper

articles appeared in Austin newspapers discussing whether

Austin's management committee representative had kept the

city council sufficiently informed about the problems at the

project. In August 1979, HL & P presented the task force's

new, more definitive “baseline” cost estimate of $2.7 billion

to the management committee. The committee, however, did

not adopt the estimate until May 1980.

1980 NRC Show Cause Order.

The NRC requires the licensee of a nuclear power plant

to set up and execute a quality assurance program. Quality

assurance includes all those planned and systematic actions

necessary to provide adequate confidence that a structural

system or component will perform satisfactorily in service.

Periodically, the NRC's inspection force looks at a project's
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construction activity records to determine whether that

project is meeting the NRC's quality assurance requirements.

Between October 10, 1979 and February 7, 1980, the NRC

investigated the project. The NRC determined that Brown &

Root had not conducted certain quality assurance activities

in compliance with the NRC's requirements. Although the

deficiencies primarily resulted from Brown & Root's failure

to carry out an effective quality assurance program, the NRC

held *782 HL & P, as the project manager and licensee,

responsible. The NRC served a notice of violation, imposed

a $100,000 civil fine, and issued a show cause order on

HL & P. The show cause order outlined the actions that

HL & P needed to take to convince the NRC to allow

the project's safety-related construction activities to continue

uninterrupted. Although HL & P felt that several of the NRC's

findings were inaccurate, it paid the fine without objection so

it that could save money in the long run, continue the plant's

construction, and maintain good relations with the NRC.

Termination of Brown & Root as the A/E–Constructor

In September 1981, after Brown & Root reported that it

expected to progress toward the completion date at a rate

of only 0.5% per month for the next eighteen months, the

management committee decided to remove Brown & Root

as the A/E. In September 1981, Bechtel replaced Brown &

Root as the A/E. After Brown & Root refused to remain in

the limited capacity of constructor, HL & P replaced it in that

capacity with Ebasco. At the time that Brown & Root left the

project, the participants had spent $1.78 billion, $1 billion of

which was accounted for by equipment and materials. When

Bechtel took over, it presented a new cost estimate of $5.5

billion to complete the project. After taking over for Brown

& Root, Bechtel's only major rework was to move the pipes

coming from the cooling pond. To keep track of the cost of

any rework, repairs, or regulatory charges that might have

resulted from Brown & Root's mistakes, Bechtel set up a

special account. Bechtel charged a total of $250 million to

that account.

Between 1981 and 1988, Bechtel completed construction of

the project. Unit one became operational in August 1988, and

unit two became operational in June 1989. The final cost of

the project was about $6.013 billion, an excess of $5 billion

over the original $902 million Nuclear Utilities Systems study

estimate. The number of HL & P staff needed to complete the

project eventually peaked at 600, an increase of 578 personnel

over the original study estimate of 22.

PROCEDURAL HISTORY

In December 1981, the participants sued Brown & Root. They

alleged that Brown & Root (1) was not qualified, (2) had

breached its construction contract calling for performance to

the highest standards, (3) had a deficient quality assurance

program, and (4) had lied when it told the management

committee that Brown & Root was ready to begin safetyrelated construction in April 1976. The participants recovered

$750 million.

Austin then brought this suit against HL & P to recover its

sixteen percent share of the cost overruns. Austin alleged

breach of contract, fraud, and DTPA violations. Austin

limited its complaints to the events that occurred between

1973 and 1981 while Brown & Root was the A/E-constructor

on the project and during which the participants spent $1.78

billion. The trial court allowed the parties to use the discovery

obtained in the earlier Brown & Root litigation.

Austin based its contract claims on two alternate theories.

First, Austin asserted that, if HL & P had told the management

committee in April 1976 that Brown & Root's engineering

was inadequate to support construction at that time, the

committee would have voted to delay construction to allow

engineering to catch up and the plant could have been built

for $3.2 billion. Second, Austin asserted that if HL & P

had provided more information in 1978, the construction

of the plant would have been deferred for a year and the

plant could still have been built for $3.2 billion. HL & P

defended by asserting that (1) the information that it allegedly

withheld was frequently not information in the usual sense,

but only hindsight opinions or speculations or unproved

allegations from the Brown & Root litigation, (2) Austin

provided no causal link between any failure of HL & P to

provide information and any increase in the project's costs, (3)

the $3.2 billion estimate was not attainable in any event, and

(4) the project's actual cost and schedule was entirely *783

reasonable and could not have been improved upon even if

further information had been provided.

Before trial, the parties filed numerous pretrial motions.

Disposition of some of the motions required the court

to interpret the participation agreement. In opinions

accompanying its rulings on these motions, the trial court
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held that under the agreement the project's management

lay with the management committee and that HL & P as

project manager had the duty to supply information to the

management committee on major matters and on significant

factors affecting the project's cost and schedule. Based on

one of these opinions, the court sustained HL & P's special

exceptions to Austin's mismanagement claims that HL &

P (1) had breached provisions of the Brown & Root and

Westinghouse contracts, (2) had not exercised reasonable

skill and care, (3) had breached fiduciary duties, and (4) had

failed to perform as a prudent utility manager and struck

those causes of action. During the trial, Austin asked the court

to reconsider its sustaining of HL & P's special exceptions

to Austin's mismanagement claims. The court overruled

Austin's motion and issued another opinion standing by its

earlier interpretations of the participation agreement.

The court's jury charge included questions as to breach of

contract, fraudulent nondisclosure, and DTPA violations. The

jury found that HL & P did not supply the owners with all

of the information required under the participation agreement

but that Austin incurred no additional costs on the project as a

result of HL & P's failure to furnish the required information.

As to fraud, the jury found that a relationship of trust and

confidence existed between Austin and HL & P. The jury also

found that HL & P did not fail to disclose specified matters

with the intent to induce Austin to enter the participation

agreement. As to the alleged DTPA violations, the jury found

none occurred. Based on the jury's findings, the trial court

entered a take-nothing judgment in HL & P's favor.

DUTY OF IMPLIED SKILL AND CARE

In its first point of error, Austin contends that the trial

court erred when it sustained HL & P's special exceptions

and struck Austin's cause of action for HL & P's breach

of its duty implied in law to perform with skill and care

its obligations as project manager under the participation

agreement. Austin argues that the trial court misconstrued the

participation agreement when it found that the agreement did

not impose this duty. For the reasons discussed below, we

overrule Austin's first point of error.

Standard of Review

[1] [2] [3] The trial court has broad discretion in

hearing, construing, and sustaining special exceptions. Bader

v. Cox, 701 S.W.2d 677, 686 (Tex.App.—Dallas 1985, writ

ref'd n.r.e.). The court, however, must liberally construe the

pleading attacked and accept as true all material factual

propositions alleged and all factual statements reasonably

inferred from the allegations. Id. This Court will not disturb

the trial court's rulings absent an abuse of discretion. Bader,

701 S.W.2d at 686.

HL & P specially excepted to Austin's fifth amended petition

and moved to strike Austin's mismanagement claims that

HL & P (1) did not exercise reasonable skill and care in

the performance of its obligations under the participation

agreement, (2) breached fiduciary duties, and (3) did not

perform as a prudent utility manager. The trial court

struck Austin's mismanagement claims based on the court's

construction of the participation agreement.

[4] [5] [6] [7] On appeal, Austin does not argue that the

participation agreement was ambiguous. When no ambiguity

exists, the trial court construes the contract as a matter of law.

Westwind Exploration v. Homestate Sav. Ass'n, 696 S.W.2d

378, 381 (Tex.1985). To determine the contract's meaning,

the court considers the wording of the instrument in light of

the surrounding circumstances at the time the parties entered

into it and applies the pertinent rules of construction. *784

City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d

515, 518 (Tex.1968). The court gives effect to the parties'

intentions as expressed in the instrument. Gracia v. RC Cola–

7–Up Bottling Co., 667 S.W.2d 517, 520 (Tex.1984). The

parties' objective, not subjective, intent controls. Pinehurst,

432 S.W.2d at 518; Dallas Bank & Trust Co. v. Frigiking,

Inc., 692 S.W.2d 163, 166 (Tex.App.—Dallas 1985, writ ref'd

n.r.e.).

[8] [9] Implied terms arise from the parties' presumed

intentions as gathered from the instrument as a whole.

Summers v. Consolidated Capital Special Trust, 783 S.W.2d

580, 583 (Tex.1989); Danciger Oil & Ref. Co. v. Powell,

137 Tex. 484, 490, 154 S.W.2d 632, 635 (1941); Ingram

Freezers v. Atchison, T. & S.F. Ry., 464 S.W.2d 915, 919

(Tex.Civ.App.—Dallas 1971, writ ref'd n.r.e.). It must appear

either that the implied terms were so clearly within the parties'

contemplation that they thought it unnecessary to express

them or appear that it is necessary to infer the terms to carry

out the contract's full purpose. Danciger, 154 S.W.2d at 635;

Ingram, 464 S.W.2d at 919.
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Existence of the Duty in Every Contract

[10] Austin argues that the trial court misconstrued the

participation agreement because the duty of skill and care is

implied in every contract regardless of the parties' intentions.

To support this proposition, Austin relies on Coulson v.

Lake LBJ Municipal Utility District, 734 S.W.2d 649, 651

(Tex.1987); Montgomery Ward & Co. v. Scharrenbeck, 146

Tex. 153, 157, 204 S.W.2d 508, 510 (1947); and Westbrook

v. Watts, 268 S.W.2d 694, 697 (Tex.Civ.App.—Waco 1954,

writ ref'd n.r.e.). Austin relies on Public Service Enterprise

Group, Inc. v. Philadelphia Electric Co., 722 F.Supp. 184,

209 (D.N.J.1989) (PECO ), to further argue that this implied

duty applies to agreements to manage nuclear power plants.

HL & P responds that a duty of skill and care exists in the

participation agreement only if the parties intended to include

it.

Austin misplaces its reliance on Scharrenbeck, Coulson,

Westbrook, and PECO. None of these cases:

(1) involve an agreement among participants to share

expenses,

(2) involve a duty by the managing participant to provide

material information to the other cotenants,

(3) involve a management committee with budget and

manpower control and the authority to replace the

manager by a simple majority vote, or

(4) imply a duty to perform with reasonable skill and care

where the parties expressed otherwise.

In Scharrenbeck, Montgomery Ward agreed to repair a water

heater. After making the repairs, the repairman's failure to

check the flue caused a fire that destroyed Scharrenbeck's

home. Scharrenbeck sued for negligence, and Montgomery

Ward asserted the absence of any duty owed to Scharrenbeck.

The court held “[a]ccompanying every contract is a common

law duty to perform with care, skill, reasonable expedience

and faithfulness the thing agreed to be done.” Scharrenbeck,

204 S.W.2d at 510 (emphasis added). The court appears to

hold that a duty to perform with skill and care attaches only

to the performance of the acts the parties agreed to perform.

This requires the trial court to make a determination of the

parties' presumed intentions as gathered from the instrument

as a whole. Austin fails to cite to any authority, and we

can find none, that interprets Scharrenbeck to mean that

this implied duty exists in every contract regardless of the

parties' intentions. After a review of the whole contract, it

is evident that the parties intended in this contract to place

ultimate control of the project in an independent management

committee and that HL & P's duty to perform with skill

and care attached only to HL & P's duty to provide material

information to that management committee.

In Coulson, an engineer contracted with the defendant to

prepare plans and specifications to provide the defendant with

utilities. The engineer prepared the plans and specifications,

but the defendant refused to pay him. In its response

to the engineer's subsequent suit, the defendant alleged

that the plans “were not prepared in a good and *785

workmanlike manner and do not meet the standards of

reasonable engineering practice.” Coulson, 734 S.W.2d at

650. The parties asked the court to decide which party had

the burden to prove negligent performance. The court held

that an engineer was entitled to a presumption that the work

he performed was good and workmanlike and not negligently

done when he proved compliance with the express terms of

his professional contract. In relation to this issue, the court

cited the Scharrenbeck holding “that the common law duty to

perform with skill and care accompanies every contract.” Id.

at 651. The court, however, did not hold that an implied duty

existed regardless of the parties' intentions. In Coulson, the

engineer expected compensation, and there is no indication

that, under the contract, the defendant had the right to review

the engineer's work. Here, HL & P received no compensation

for its services, and the management committee reserved the

right to review HL & P's work and to remove it as project

manager.

In Westbrook, the court was asked to decide the correctness of

a jury-charge definition of “good and workmanlike manner,”

an express term in the contract. In relation to that issue, the

court stated, “[t]here is the general requirement applicable to

all contracts where one is required to perform a service that it

will be performed with reasonable care or skill.” Westbrook,

268 S.W.2d at 697. The court, however, was not asked to

and did not decide whether this duty existed regardless of the

parties' intentions.

In PECO, the nuclear power plant owners sued PECO,

the operating owner, for breach of contract, negligence,

misrepresentation, and fraud in connection with the NRC's

shutdown of the plant in 1987, after the NRC was informed

that operators at the plant were routinely sleeping on duty.

PECO, 722 F.Supp. at 186, 187. Although PECO received
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several warnings from the NRC in 1985 that the plant was

not up to industry standards, PECO never passed along

these criticisms to the other owners. Id. at 188–89. The

joint operating agreement among the owners required PECO

to “operate and maintain” the plant as an “independent

contractor” responsible for the results obtained, and, in the

agreement, PECO pledged to operate and maintain the station

for the owners as if it were owned solely by PECO. Id.

at 186. PECO agreed to provide these services without

making a profit. Id. at 197. The agreement also established

an owners' committee to coordinate the administration of all

plant operation and maintenance matters and to review the

plant's general performance and operations. The agreement

further required PECO to provide a daily status report to the

owners' committee. As the plant's licensed operator, PECO

was responsible for the plant's safe operation and had a

duty to follow the laws and regulations covering nuclear

power plants. One of those regulations required the constant

presence of a licensed or senior operator at the controls

during the plant's operation. Id. at 188. The owners alleged

that PECO's misrepresentations about the plant's operation

prevented them from acting to prevent the plant's shutdown.

PECO moved to dismiss the owners' tort claims, alleging

that the owners' breach of contract action precluded their tort

cause of action. In determining whether the owners could

maintain both causes of action, the court had to decide the

source of PECO's duty to refrain from the complained-of

conduct. The court held that, given the nature of PECO's

contractual obligations to efficiently operate and maintain

the plant and to keep the owners informed of the plant's

status, “the contract could certainly be interpreted under

Pennsylvania [law] to include an implied promise by PECO to

render its services with reasonable skill and care.” Id. at 209.

Here, although the participation agreement imposed upon

HL & P duties similar to those imposed in PECO, it did

not provide HL & P with “independent contractor” status

or specifically state that HL & P was responsible for the

results obtained. Without these additional obligations, it does

not appear necessary to infer a duty of reasonable skill and

care in the agreement, especially considering the agreement's

provision that allows the management *786 committee to

remove HL & P with a simple majority vote.

“Best Judgment” Standard

[11] Austin next contends that the trial court misconstrued

the participation agreement by rejecting Austin's argument

that the agreement meant to deviate from the stricter

reasonable skill and care standard only in the two limited

instances where it expressly specified the lower “best

judgment” standard. Austin argues that only when the parties

have expressly rejected an “ordinary prudence” standard in

favor of a “best judgment” standard will the courts remove the

“prudent conduct” or “reasonable care” standard and impose

a “best judgment” standard. Austin relies on Anbeck Co. v.

Zapata Corp., 641 S.W.2d 608 (Tex.App.—Houston [14th

Dist.] 1982, writ ref'd n.r.e.), to support its contention.

Austin misplaces its reliance on Anbeck. In Anbeck, the

appellant argued that, because the parties' agreement gave the

corporation the right to make all material decisions for the

corporation's subsidiary, a corresponding legal duty to use

“reasonable diligence” in its management of the subsidiary

necessarily accompanied this right. Because the contract

did not expressly provide for this obligation, the court

needed to determine whether the written contract implied a

covenant that the corporation would manage the subsidiary

with reasonable diligence and due care. Id. at 611. The court

found that the agreement included covenants only that the

corporation would not use certain names in the corporation's

subsidiary and that the corporation would use its best efforts

to provide the subsidiary with up to $1,000,000 in working

capital. The court held that the agreement's use of “best

efforts” in one limited instance did not imply a general duty to

use reasonable skill and care. Anbeck, 641 S.W.2d at 613–14.

A similar situation existed here. The participation agreement

required HL & P to make the day-to-day decisions for the

project. The participation agreement, however, only specified

a standard of performance in two limited situations:

(1) Section 10.2.8 of the agreement required the project

manager to:

[f]ollow the practices and procedures which have been

reviewed and approved by the Management Committee

or, in the absence of such approved practices and

procedures, which reflect the best judgment of the

Project Manager.

(2) Section 24.1 of the agreement provided:

Pending the resolution of any dispute by arbitration or

judicial proceedings, the Project Manager shall proceed

with the Preconstruction Work, Construction Work,
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or Station Work in a manner consistent with this

Participation Agreement and the Project Agreements

and with the best judgment of the Project Manager....

(Emphasis added.) Because the agreement did not expressly

provide for a reasonable skill and care standard as urged by

Austin, the court needed to determine whether the written

contract implied such a covenant. Both of the cited provisions

involve situations in which HL & P would be acting without

the supervision of the management committee. Under the

remaining provisions of the participation agreement, HL & P

is subject to management committee supervision and review.

We conclude, as did the trial court, that this limited use of the

“best judgment” standard of performance does not necessarily

imply a general duty to use reasonable skill and care under

other parts of the contract.

HL & P's Self–Interest

[12] Austin also contends that the trial court misconstrued

the participation agreement by determining that, because of

HL & P's status as part owner, it would be motivated by

self-interest to perform well and that, therefore, a general

duty to perform with reasonable skill and care need not be

implied. Austin argues that HL & P's self-interest was not

a sufficient motivator because HL & P received additional

forms of compensation that the other owners did not. Austin

asserts that HL & P (1) *787 charged the other owners $473

million for its diverse contractual services, (2) benefitted

economically by spreading its internal costs among the other

owners, (3) benefitted politically by virtue of the economic

muscle it enjoyed as purchasing agent and the employer of

several thousand workers, and (4) recouped its losses by

increasing its rate base.

The evidence shows that:

(1) the participation agreement did not provide for the

project manager to receive compensation for its services.

Rather, the other participants agreed to pay their

proportionate share of the actual costs incurred by HL

& P as determined by independent audits, which neither

Austin nor any of the other participants questioned, and

(2) HL & P could not simply pass along its cost increases

to the public by increasing its rate base. To get a

rate base increase, HL & P must prove to the Texas

Public Utility Commission that its costs in building

the project were prudently incurred rather than incurred

through some mismanagement. See Application of Gulf

State Utils. Co. for Authority to Change Rates, 14

Tex. PUC Bull. 1943, 2429 (1988) (interpreting §§ 2,

38, 39, and 41 of the Public Utility Regulatory Act,

TEX.REV.CIV.STAT.ANN. art. 1446c (Vernon 1980 &

Supp. 1992)).

The evidence does not show that:

(1) HL & P campaigned for or otherwise sought the job

of project manager. Rather, the participants chose HL

& P after consideration of the Nuclear Utilities Systems

report, which recommended that HL & P act as project

manager for the first project and that one of the other

participants assume that duty for later projects,

(2) HL & P negotiated or bargained for increased political

clout as the purchasing agent for the project. Further, the

participation agreement provided for the removal of the

project manager with a simple majority vote, or

(3) HL & P received any additional compensation for

performing the duties of project manager.

Mutual Right of Control

[13] Austin additionally contends that the trial court erred

when it analogized business relationships to this case and

determined that an implied duty of skill and care did not apply

in all contracts. Austin argues that the law of partnerships and

joint ventures does not apply to this participation agreement

because there was no mutual right of control. Austin relies

on State v. Houston Lighting & Power Co., 609 S.W.2d 263

(Tex.Civ.App.—Corpus Christi 1980, writ ref'd n.r.e.), to

support its contention.

In Houston Lighting & Power Co., the parties asked the court

to decide whether the cities of Austin and San Antonio were

liable for ad valorem taxes on their undivided interests in the

same project and under the same participation agreement as

the one at issue in this lawsuit. Id. at 265. HL & P and CP &

L had paid their share of the taxes. Austin and San Antonio

refused to pay the taxes assessed against their interests in

the properties comprising the project. The cities claimed an

exemption because their interests in the project were devoted

exclusively to public use. The State argued that the court

for tax purposes should treat the project as a legal entity

in the nature of a partnership or a joint venture, which is,
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itself, liable for 100 percent of the taxes assessed against the

involved properties.

The court stated that a joint venture is like a partnership and

is usually limited to one enterprise. The essential elements of

a joint venture are (1) mutual right of control, (2) community

of interest, (3) agreements to share profits as principals, and

(4) agreements to share losses, costs, and expenses. Id. at

267. The court, limiting its analysis solely to whether the

participants agreed to share profits, determined that they did

not and as a result that no partnership or joint venture existed

and that the project was not liable for the assessment or

payment of any taxes against the *788 project. Id. at 268.

Contrary to Austin's assertion that the court in that case found

that the participation agreement showed no mutual right of

control, the court did not discuss that element of partnership.

Further, the court specifically stated in its review of the facts

that the “[m]anagement is by a committee made up of one

representative from each participant.” Id. at 266. This finding

refers to the management committee and implies a mutual

right of control.

Because the participants did not agree to share profits as coowners of the project, we agree with Austin that the project

is neither a partnership nor a joint venture. We disagree,

however, that the trial court's analogy to cases involving

partnerships and joint ventures is inappropriate given Austin's

contention that the duty to use reasonable skill and care is

imposed in all contracts. As illustrated by the cases relied

upon by the trial court, 1 that duty is not imposed in every

instance. Those cases reveal that courts, in deciding not to

impose such a duty upon partnerships and joint ventures,

primarily rely on the partners' or joint venturers' mutual

right to control the business or their agreement to share

losses, costs, and expenses. Although the participants in the

instant case did not agree to share profits as co-owners of

the project, this element of a partnership or joint venture is

not pertinent to this analogy. The participants met all of the

other requirements of a partnership or joint venture: (1) a

mutual right of control, (2) a community of interest, and (3) an

agreement to share losses, costs, and expenses. The trial court,

therefore, appropriately analogized to those types of business

relationships to show that an implied duty to use reasonable

skill and care does not exist in every contract.

The Management Committee's Powers

[14] Austin further contends that the trial court misconstrued

the participation agreement because the management

committee's powers are limited. Austin argues that the

participation agreement does not grant the management

committee the power to exercise “general supervision” over

the project manager. Austin relies on sections 4.25 and 10.2.4

of the participation agreement for this proposition.

Section 4.25, the definition portion of the agreement, provides

in part as follows:

PROJECT MANAGER: The

Participant responsible for the

planning, construction and operation

of the various components of the

South Texas Project in accordance

with this Participation Agreement and

the Project Agreements.

This provision is a definition. It identifies the party with the

responsibilities enumerated in section 10 of the agreement.

This provision adds nothing to those responsibilities.

Section 10.2.4 of the agreement provides as follows:

[The project manager shall] [p]rovide

for the engineering, design, contract

preparation, purchasing, construction,

reconstruction, repair, retirement,

replacement, supervision, training,

expediting, inspection, testing, startup, protection, operation, maintenance

and accounting of, or with respect to,

each component.

*789 Austin relies on the “provide for” language in this

provision to make its assertion that the parties' intended

to impose an implied duty of skill and care on HL & P's

performance. Austin asserts that this language specifically

and expressly delegates to HL & P, as project manager,

the ability to control or to manage the matters pertaining

to engineering, design, purchasing, construction, quality

assurance, selection of contractors, and operation of the

project.

The term “provide for” does not necessarily impose strict

contract liability. See Sherman Simon Enters. v. Lorac Serv.

Corp., 724 S.W.2d 13, 16 (Tex.1987). In Sherman Simon,

the court held that an automobile rental agency satisfied

an agreement to provide insurance coverage for one of
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its customers when it secured a policy from an insurance

company. Id. Here, Austin introduced no evidence that shows

that the parties had the intent or contemplated that HL & P

would design and/or construct the project itself. Accordingly,

HL & P fulfilled its obligations pursuant to section 10.2.4

when it contracted with Brown & Root and Westinghouse

to perform those services as independent contractors. See

Seaview Hosp., Inc. v. Medicenters of Am., Inc., 570 S.W.2d

35, 39–40 (Tex.Civ.App.—Corpus Christi 1978, no writ)

(distinguishing between a contract to “furnish” services and

a contract to “perform” services).

Although the participation agreement does not specifically

state that the management committee has “general

supervision” of the project, the agreement does specifically

provide that the management committee has the right to:

(1) resolve disputes among the participants arising under

the agreement (§ 9.3.5);

(2) review and act upon the project manager's

recommendations concerning:

a. the utilization of employees (§ 9.3.6.2),

b. the annual budget for capital expenditures (§ 9.3.6.3),

c. the operating practices and procedures (§ 9.3.6.11);

(3) remove the project manager with a simple majority vote

(§ 25); and

(4) approve all agreements (§ 31).

Based on these contract provisions, we conclude that the

management committee's powers are not limited and that

the management committee, not HL & P, maintains ultimate

control over the project.

Exculpatory Clause

Austin contends that the trial court in its first opinion

misconstrued the participation agreement because the

participation agreement's exculpatory clause does not absolve

HL & P of its implied duty to use skill and care. Austin

argues that its claim against HL & P for mismanagement is

a contract claim, not a claim for “tortious conduct.” Austin

further argues that the exculpatory clause is too vague to be

enforceable.

[15] [16] [17] An action in contract is for the breach of

a duty arising out of a contract, either express or implied.

An action in tort is for a breach of a duty imposed by

law. International Printing Pressmen & Assistants' Union

v. Smith, 145 Tex. 399, 409, 198 S.W.2d 729, 735 (1947).

Where the plaintiff may not maintain a cause of action

without proving the contract's contents, and the action's gist

is the breach of the contract, whether by malfeasance or

nonfeasance, it is an action on the contract. Smith, 145 Tex.

at 409, 198 S.W.2d at 735; Manzo v. Ford, 731 S.W.2d 673,

677 (Tex.App.—Houston [14th Dist.] 1987, no writ). This

categorization of the claim is true though it is labeled an action

for negligent performance. Manzo, 731 S.W.2d at 677.

[18] Austin's action is for damages for HL & P's failure to

perform its duties as project manager with reasonable skill

and care, a duty Austin asserts is impliedly imposed on HL &

P by the contract regardless of the parties' intention. The right

for which Austin seeks redress arose by virtue of the parties'

agreement. We conclude that Austin's action is founded upon

contract. See Smith, 145 Tex. at 410, 198 S.W.2d at 736.

Section 21 of the participation agreement, the tortious

conduct exculpatory clause, provides in pertinent part:

*790 Participants shall have no

remedies against another Participant

for tortious conduct arising out of the

ownership of the South Texas Project,

or any portion thereof, or out of

Preconstruction Work, Construction

Work or Station Work except when the

claim results from Willful Action.

Because this exculpatory clause precludes only actions based

on tortious conduct, it is inapplicable in this situation.

Duty of Implied Skill and Care Summation

Because (1) the duty of reasonable care and skill is not implied

in all contracts, (2) the agreement does not provide HL & P

with independent contractor status or state that HL & P is

responsible for results obtained, (3) it is not necessary to infer

the duty to carry out the contract's full purpose, (4) the limited

use of “best judgment” does not necessarily imply a general

duty of reasonable skill and care, (5) HL & P is motivated

by self-interest, and (6) the management committee maintains

ultimate control over the project, the trial court did not err

when it sustained HL & P's special exceptions and struck
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

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Austin's cause of action alleging that HL & P had breached

its duty implied in law to perform its obligations as project

manager under the participation agreement with skill and

care. We overrule Austin's first point of error.

HEARSAY

In its fourth point of error, Austin contends that the trial

court erred when it overruled Austin's hearsay objection to the

admission of three newspaper articles. Austin argues that:

(1) the articles were relevant only if the statements made

by the officials were true,

(2) the articles allowed the jury to infer that the reporter

believed the statements, which belief may have been

erroneous,

(3) HL & P's repeated references to and quotations from the

articles, during jury argument, established harm and caused

the probable rendition of an improper verdict.

HL & P contends that it offered the newspaper articles to show

that the information Austin denied receiving was available in

the city's newspapers at the relevant times. HL & P claims that

the articles were not hearsay because they were admitted to

show that Austin was on notice about the project's problems

and to show the state of the public's knowledge in the City

of Austin, not to prove the truth of the matters asserted in

the articles. HL & P argues that (1) during voir dire and in

its opening statement, Austin told the jury that it intended to

offer evidence about the state of public knowledge in the city,

(2) Austin fulfilled this promise through the presentation of

many witnesses who claimed not to have known information

about the project and who testified that had HL & P made

the information available they would have acted differently,

(3) HL & P used two of the articles to put in context Austin's

mayor's testimony about the statements she made to the

Austin public following the airport meeting, and (4) any error

in these articles' admission was harmless because the articles'

contents were cumulative of other evidence.

For the reasons discussed below, we overrule Austin's fourth

point of error.

Standard of Review

[19] [20] [21] To get a reversal of judgment based on

the trial court's error in admitting or excluding evidence,

the complaining party must show that (1) the trial court

committed an error and (2) the error was reasonably

calculated to cause and probably did cause rendition of an

improper verdict. Gee v. Liberty Mut. Fire Ins. Co., 765

S.W.2d 394, 396 (Tex.1989). Further, the party must show

that the whole case turned on the admission of the unexcluded

evidence. Shenandoah Assocs. v. J & K Properties, 741

S.W.2d 470, 490 (Tex.App.—Dallas 1987, writ denied).

When a trial court gives an instruction that limits the

purpose for which the jury can consider the evidence, this

Court must assume that the jury properly followed the trial

court's *791 instruction. Turner, Collie & Braden, Inc. v.

Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982). The

erroneous admission of evidence that is merely cumulative

of properly admitted evidence is harmless error. McInnes v.

Yamaha Motor Corp., 673 S.W.2d 185, 188 (Tex.1984), cert.

denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985).

To make this determination, this Court must review the entire

record. Gee, 765 S.W.2d at 396.

[22] [23] [24] [25] Hearsay is an out-of-court statement

offered as evidence to prove the truth of the matter

asserted. TEX.R.CIV.EVID. 801(d); Matter of Honsaker,

539 S.W.2d 198, 201 (Tex.Civ.App.—Dallas 1976, writ ref'd

n.r.e.). Generally, Texas courts consider newspaper articles

inadmissible hearsay. Deramus v. Thornton, 160 Tex. 494,

505, 333 S.W.2d 824, 831 (1960); Sherrill v. Estate of

Plumley, 514 S.W.2d 286, 290 (Tex.Civ.App.—Houston [1st

Dist.] 1974, writ ref'd n.r.e.); Hearn v. Covington, 22 S.W.2d

1073, 1073 (Tex.Civ.App.—Beaumont 1929, no writ). When

a party offers a statement simply to show that it was made

rather than to show its truth or falsity, however, the hearsay

rule does not bar its admission. Pope v. Darcey, 667 S.W.2d

270, 273 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd

n.r.e.). Further, newspaper articles not offered for the truth

of the matters asserted but used merely to show notice of

those matters are not hearsay. See Hiram v. United States,

354 F.2d 4, 7 (9th Cir.1965). The hearsay rule also does not

bar the admissibility of news reports used to show public

perceptions of the subject matter covered by the articles.

See Tejas Gas Corp. v. Herrin, 705 S.W.2d 177, 180–81

(Tex.App.—Texarkana 1985), rev'd on other grounds, 716

S.W.2d 45 (Tex.1986); Lone Star Gas Co. v. Smith 405

S.W.2d 238, 239 (Tex.Civ.App.—Waco 1966, no writ); King

v. City of Dallas, 374 S.W.2d 707, 711–12 (Tex.Civ.App.—

Dallas 1964, writ ref'd n.r.e.); see also Democratic Party v.

National Conservative Political Action Comm., 578 F.Supp.
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

797, 829 (E.D.Pa.1983), aff'd in part and rev'd in part on

other grounds, 470 U.S. 480, 105 S.Ct. 1459, 84 L.Ed.2d 455

(1985).

“Nuclear woes muffled?”

AUSTIN AMERICAN

STATESMAN, November 30, 1978

[26] HL & P first discussed the November 30, 1978

newspaper article during the cross-examination of R.L.

Hancock, Austin's representative on the management

committee. The article discussed various problems at the

project and alleged that Hancock did not timely relay the

information he received concerning those problems to the

city council. The article included quotations from several

Austin City Council members, listed the problems, and

included Hancock's explanations for why he had limited the

information he relayed concerning those problems.

Austin objected to this article's introduction, arguing that

the headline and the quotations contained in the article were

hearsay. HL & P responded that it was introducing the article

only to show that accusations were made against Hancock and

the gravity of those accusations, not to show that any of the

statements in the article were in fact accurate. The court at first

overruled the objection, but later sustained a similar objection

and instructed the jury that the statements in the article, made

by persons other than Hancock, were not admitted for the

truth of the statements, but only to show that the statements

were made and that the matter had the attention of the city

council. HL & P questioned Hancock further about whether

the article made accusations that he did not inform Austin's

City Council about the problems at the project. HL & P did

not refer to or question Hancock about any specific quotation

in the article.

HL & P stated that its intention in introducing the article

was to show that Austin's City Council had made accusations

against Hancock and not to show the article's truth or falsity.

The hearsay rule, therefore, did not bar the article's admission.

Pope, 667 S.W.2d at 273. Further, the trial court instructed the

jury to consider the article only for that purpose. We assume

that the jury followed the instruction. *792 Brookhollow,

642 S.W.2d at 167. Austin points to no evidence showing that

the jury failed to follow the court's limiting instruction.

If the court committed error by allowing the introduction

of this article, the error was harmless because this evidence

merely was cumulative of evidence admitted afterward.

McInnes, 673 S.W.2d at 188. HL & P later introduced

and read, without objection, most of a memo Hancock sent

Austin's city manager responding to his request for further

information on the November 30 article. Other than the

quotations, the memo contained the same information as the

article about the council's accusations.

Because the trial court limited the use of the article to show

that the city council had made accusations against Hancock,

and we assume that the jury followed the court's instruction,

the article was not barred by the hearsay rule and the trial

court did not err when it allowed the article's admission. If

the hearsay rule, however, did bar the article's admission, the

error was harmless because the evidence was cumulative of

other evidence admitted without objection.

“Council unimpressed by report

after HL & P briefing on STNP”

DAILY TEXAN, November 21, 1978

[27] HL & P introduced the November 21, 1978 newspaper

article during its cross-examination of Carole McClellan

Rylander, Austin's mayor in 1978. The article discussed the

briefing that Austin City Council members received from HL

& P at the meeting at the airport in Houston a few days

earlier. The article included quotations from Rylander and

other council members and summarized HL & P's statements

at the airport meeting. Further, it conveyed that, despite HL

& P's statements at the airport meeting, Austin's council

members continued to have questions about the project's cost

and schedule.

HL & P introduced the article in response to Rylander's

statement that she would have to look specifically at the

clippings from that time to see what she had said to the

public upon her return from the meeting in Houston. Austin

immediately objected to the article's admission on hearsay

grounds. The trial court sustained the objection and instructed

the jury that the newspaper article was not admitted for the

truth of any matters stated in it, but only for the purpose

of showing what the discussion was in the City of Austin

at the time the account was published. HL & P continued

questioning Rylander about specific quotes she had allegedly

made in the article and read a portion of the article to the
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14

jury. Austin again objected complaining, “[T]his has nothing

to do with any discussion that's taken place in Austin.” The

trial court overruled Austin's objection. HL & P continued

questioning Rylander, limiting itself to the portion of the

article read to the jury and Rylander's quotations. In its

jury argument, HL & P repeated some of Rylander's alleged

quotations from the article. HL & P made no reference to

quotations made by the other city council members.

HL & P introduced the November 21 newspaper article

to show what Austin's citizens were reading at that time

concerning the project. The hearsay rule, therefore, did not

bar the article's admission. See Tejas Gas Corp., 705 S.W.2d

at 180–81. The trial court instructed the jury to consider

the article only for that purpose, and we assume the jury

followed that instruction. Brookhollow, 642 S.W.2d at 167.

The evidence does not show that HL & P went beyond its

stated purpose or that the jury failed to follow the court's

limiting instruction. Additionally, the article summarized HL

& P's statements at the airport meeting, a transcription of

which Austin introduced during its direct examination of

Rylander. Because the trial court limited the use of the article

to show what Austin's citizens were reading at the time, and

we assume the jury followed that instruction, the article was

not barred by the hearsay rule and the trial court did not

err when it allowed the article's admission. If the court did

err in allowing the introduction of this article, the error was

harmless since the evidence was cumulative of other evidence

admitted without objection.

*793 “City officials delayed telling

council about Nuke troubles”

AUSTIN AMERICAN STATESMAN, January 31, 1982

[28] HL & P introduced the January 31, 1982 newspaper

article during its examination of Lee Cooke, Austin's mayor

at the time of trial and a former Austin City Council member.

The article discussed the communication problems among

Hancock, Austin's City Manager's office, and Austin's City

Council. It included quotations from Hancock, Rylander, and

other Austin officials.

After HL & P read the article's headline to Cooke and

commented that Hancock's picture accompanied the article,

the following exchange occurred:

Q: Still having troubles between the City Council and the

representative to the management committee on the City

Council complaining that they never got the word on

what was going on down at the South Texas Project; is

that correct, Mayor?

A: I was not there. I can't make an assumption that this

reporter accurately portrayed what happened.

Q: Well, right next to this picture of Mr. Hancock, Mr.

Hancock is quoted as saying, R.L. Hancock says the City

Manager's office should pass news to the council. Is that

right, sir?

A: That's what that says.

HL & P asked no further questions concerning this article nor

made any further references to it.

When HL & P introduced the November 21 and 30,

1978 newspaper articles, Austin requested and received an

instruction to the jury to consider those articles only for the

limited purpose of showing what the discussion was in the

City of Austin at the time the account was published. Austin

did not request a limiting instruction either at the time HL &

P introduced this newspaper article or at pretrial.

When the jury should consider the tendered evidence for

only one purpose, it is the opponent's burden to secure a

limiting instruction. Absent such a request, the admission of

the evidence without limitation is not a ground for complaint

on appeal. TEX.R.CIV.EVID. 105(a); Larson v. Cactus Util.

Co., 730 S.W.2d 640, 642 (Tex.1987).

Because Austin did not request a limiting instruction, it

waived its right to complain. Assuming that Austin did

not waive its right to complain, any error was harmless.

There were two previous limiting instructions given with the

November 21 and 30 newspaper articles and the witness's

testimony accompanying the introduction of the article

questioned the article's accuracy. We hold that the lack of a

limiting instruction did not amount to such a denial of Austin's

rights as was reasonably calculated to cause and probably

did cause the rendition of an improper judgment in this case.

TEX.R.APP.P. 81(b)(1).

Hearsay Summation
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

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The trial court admitted the November 21 and 30 newspaper

articles for the limited purpose of showing that the statements

were made and for the limited purpose of showing the state of

public knowledge in the City of Austin at the relevant times.

Thus, the articles were not hearsay. When Austin did not

request a limiting instruction with the January 31 newspaper

article, it waived its right to complain about its admission in

its entirety. Alternatively, if Austin did not waive its right to

complain, any error in admitting the article was harmless.

Because Austin waived its right to complain of the admission

of the January 31 newspaper article and because we assume

that the jury followed the trial court's instructions and

appropriately limited its consideration of the remaining

articles, the hearsay rule did not bar the articles' admission.

Therefore, the trial court did not err in allowing the articles'

admission into evidence. We overrule Austin's fourth point of

error.

*794 JURY CHARGE

In its second and third points of error, Austin contends that an

erroneous jury charge caused the jury to render an improper

verdict. Austin argues that the trial court erred when it refused

to include (1) section 10.2.7 of the participation agreement

in the definition of HL & P's duties to inform and (2) a

“substantial factor” question or instruction in the causation

issue.

Standard of Review

[29] [30] [31] Under the Texas Rules of Civil Procedure,

the trial court must, whenever feasible, submit the cause

upon broad-form questions and must give proper instructions

and definitions to enable the jury to render a verdict.

TEX.R.CIV.P. 277. Explanatory instructions are the tools that

aid the jury in rendering a just and proper verdict. The trial

court should submit instructions only when it determines that

the instructions will help the jury to understand the meaning

and effect of the law and the presumption created thereby.

Texaco Inc. v. Pennzoil Co., 729 S.W.2d 768, 819 (Tex.App.

—Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dismissed,

485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988). The

complaining party must tender to the court in writing a

substantially correct definition or instruction. TEX.R.CIV.P.

278. The trial court has wide discretion to determine the

sufficiency of definitions and instructions. K–Mart Corp.

Store No. 7441 v. Trotti, 677 S.W.2d 632, 636 (Tex.App.—

Houston [1st Dist.] 1984), writ ref'd n.r.e. per curiam, 686

S.W.2d 593 (1985). To determine whether an alleged error in

the jury charge is reversible, we must consider the pleadings,

the evidence presented, and the charge in its entirety. Island

Recreational Dev. Corp. v. Republic of Tex. Sav., 710

S.W.2d 551, 555 (Tex.1986). We will deem an alleged error

reversible only if, when viewed in light of the totality of the

circumstances, it amounted to such a denial of the rights of the

appellant as was reasonably calculated to cause and probably

did cause rendition of an improper judgment. TEX.R.APP.P.

81(b)(1); Island Recreational Dev., 710 S.W.2d at 555;

Geotech Energy v. Gulf States Telecommunications & Info.

Sys., Inc., 788 S.W.2d 386, 390 (Tex.App.—Houston [14th

Dist.] 1990, no writ).

HL & P's Contractual Duty to Make Recommendations

[32] In its second point of error, Austin contends that the

trial court erred when it refused to include section 10.2.7

of the participation agreement in the definition of HL & P's

duties to inform. Austin argues that, under section 10.2.7, HL

& P had a duty to make competent recommendations to the

management committee. Austin asserts that it supported its

request to include section 10.2.7 with written pleadings and

proof that HL & P did not make competent recommendations

concerning (1) the choice of a nuclear steam supply system,

(2) the selection of Brown & Root, and (3) the decision to

start safety-related construction.

HL & P argues that jury question one dealt with whether HL

& P provided information to the management committee and

that the duty to make recommendations did not fall within the

participation agreement's definition of information. HL & P

further argues that Austin never objected to the omission of

section 10.2.7 in the pretrial opinions listing the participation

agreement sections imposing informational duties.

The court limited its charge to those sections of the

participation agreement that it determined mandated HL &

P to provide information. The charge included the following

definition and instruction:

‘Information required by the Participation Agreement’

means the information that HL & P was required to supply

to the Participants by the following provisions of the

Participation Agreement.
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

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10.2 The Project Manager for all aspects of the South

Texas Project, except the construction, operation, and

maintenance of the Construction Power Line, shall:

10.2.3 Supply the Participants with copies of all studies

made, license and *795 permit applications filed, and

licenses and permits obtained;

10.2.5 Promptly supply the Participants with

information on major matters and significant factors

which affect construction and operating schedules;

10.2.6 Provide the Management Committee and any

committee created by it with all necessary records

and information pertaining to matters within its [the

Management Committee's] designated responsibilities.

10.2.10 Keep the Participants fully and promptly advised

of material changes in conditions or other material

developments affecting the performance of its [HL &

P's] responsibilities.

In answering question 1, 2, and 3, you should consider only

HL & P's duty to supply the information required by the

foregoing provisions of the Participation Agreement; do

not consider any other duties that HL & P may have had

as project manager.

Austin requested that the trial court include a portion of

section 10.2.7 as follows:

10.2.7 Prepare recommendations

covering the matters which are to

be reviewed and acted upon by the

Management Committee.

The trial court refused Austin's request.

In its entirety section 10.2.7 reads as follows:

10.2.7 Prepare recommendations

covering the matters which are to

be reviewed and acted upon by

the Management Committee and any

committee created by the Management

Committee for the purpose of

reviewing such recommendations,

including, but not limited to, insurance

coverages to be obtained during the

periods covered by and with respect to

Preconstruction Work, Construction

Work and Station Work, or any phases

thereof.

(Emphasis added.) Although section 10.2.7 states that

the project manager shall make recommendations to the

management committee, we must read that section in

conjunction with section 9.3.6, which sets forth the

management committee's responsibility concerning the

recommendations. Section 9.3.6 further defines and limits

the project manager's recommendation duties to the areas

of insurance, employee utilization, budgets, and the making

of policies and procedures for the plant's construction,

maintenance, and operation. When sections 9.3.6 and 10.2.7

are read together, it is clear that the language “but not

limited to” in section 10.2.7 refers back to section 9.3.6. The

first subsection under 9.3.6 specifically refers to insurance

coverage. The remaining fifteen subsections define the other

areas on which the management committee expected HL & P

to make recommendations.

Austin's proposed instruction implied a general duty by HL

& P to make recommendations. The proposed instruction,

however, did not properly place HL & P's duty in context.

When section 10.2.7 is read in its entirety and in conjunction

with section 9.3.6, we conclude that HL & P's duty to make

recommendations was limited to the sixteen specific areas set

forth in section 9.3.6. Austin's proposed instruction, therefore,

would not have aided the jury in understanding HL & P's duty

to supply Austin with information or the law or in rendering

a just and proper verdict. See Texaco, 729 S.W.2d at 819–20.

Because Austin's proposed instruction would not have aided

the jury in understanding the law or in rendering its verdict,

the trial court did not err in refusing to submit the instruction

to the jury. We overrule Austin's second point of error.

“But For” v. “Substantial Factor” Causation

[33] In its third point of error, Austin contends that the trial

court erred in submitting the question on causation. Austin

argues that the language “in reasonable probability” that the

trial court used in jury question two erroneously applied

“but for” causation to the question of increased costs. Austin

asserts that the applicable burden of proof in contract cases

is “substantial factor” causation and that “but *796 for”

causation requires a higher burden of proof.

To show liability for damages in a breach of contract case,

the plaintiff must show that the defendant's breach was
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17

a “substantial factor” in causing the injury. 5 CORBIN,

CORBIN ON CONTRACTS § 999 (1964). The plaintiff

need not show the proportionate fault of each wrongdoer.

White Budd Van Ness v. Major–Gladys Drive, 798 S.W.2d

805, 819–20 (Tex.App.—Beaumont 1990, writ dism'd), cert.

denied, 502 U.S. 861, 112 S.Ct. 180, 116 L.Ed.2d 142

(1991); Hunt v. Ellisor & Tanner, Inc., 739 S.W.2d 933, 938

(Tex.App.—Dallas 1987, writ denied).

Question two of the court's jury charge read as follows:

Were any costs incurred in the

construction of [the project] that,

in reasonable probability, would not

have been incurred if HL & P had

furnished to the Participants all the

information as and when required by

the Participation Agreement?

The jury responded “No.” No definition or instruction

concerning causation accompanied this question.

Austin requested that the trial court include the following

question in the jury charge:

Was HL & P's failure to supply

information to Austin, if you have

found that it did so fail, a substantial

factor in increasing the cost of the

South Texas Project?

The trial court refused Austin's request. Austin also requested

that the trial court include the following instruction in

connection with question two and/or three:

HL & P's failure(s), if any, to supply

information caused an increase in cost

if they were a substantial factor in

bringing about that result.

The trial court also refused this request.

Austin fails to cite, and we cannot find, any authority for

its propositions that the term “in reasonable probability” has

the same meaning as “but for” causation or that the precise

term “substantial factor” must appear in the jury issue. On its

face, the issue submitted by the trial court does not impose a

stricter standard than Austin's requested issue or instruction.

No significant difference exists between the submitted issue

and the requested issue or instruction. Because the submitted

issue imposed the correct standard concerning causation, and

Austin's proposed instruction would not have aided the jury

in understanding the law or in rendering its verdict, the trial

court did not err when it refused Austin's requested question

and instruction. We overrule Austin's third point of error.

MOTION FOR NEW TRIAL

In its fifth and sixth points of error, Austin contends that the

trial court erred when it overruled Austin's motion for new

trial because the jury's findings that Austin did not incur any

costs as a result of HL & P's failure to provide information and

that any deceptive trade practice or unconscionable conduct

by HL & P did not adversely affect Austin are against the great

weight and preponderance of the evidence. Austin argues that

(1) starting safety-related construction too soon caused cost

overruns, (2) safety-related construction started too soon on

the project, (3) HL & P knew that the project was not ready

to start safety-related construction in April 1976, (4) HL &

P misinformed Austin about the project's readiness to start

safety-related construction, and (5) HL & P's misinformation

caused cost overruns on the project that would otherwise not

have been incurred.

Standard of Review

[34] [35] [36] When determining a factual sufficiency

point of error, this Court must consider and weigh all the

evidence in the case. It should set aside the verdict and

remand the cause for a new trial only if it concludes that

the verdict is so against the great weight and preponderance

of the evidence as to be manifestly unjust, regardless of

whether the record contains some evidence of probative

force in support of the verdict. Pool v. Ford Motor Co.,

715 S.W.2d 629, 635 (Tex.1986). This Court, however, is

not a factfinder. We do not *797 pass upon the witnesses'

credibility or substitute our judgment for that of the trier of

fact, even if there is conflicting evidence that would support a

different conclusion. Harco Nat'l Ins. Co. v. Villanueva, 765

S.W.2d 809, 810 (Tex.App.—Dallas 1988, writ denied). The

existence of some evidence of probative force in support of

the verdict, however, does not mean that the verdict is not

contrary to the overwhelming weight of all the evidence. In

re King's Estate, 150 Tex. 662, 664–65, 244 S.W.2d 660, 661

(1951).
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18

Failure to Provide Information—Jury Question No. 2

Evidence Contrary to Jury Finding

[37] In its fifth point of error, Austin contends that the

following evidence is contrary to the jury's finding that HL

& P's failure to furnish information to Austin about the

inadequacy of Brown & Root's engineering to support safetyrelated construction did not cause any increase in the cost of

the project:

(1) Robert Allen, a consultant for Austin and former head

of power plant construction for Bechtel, testified that, when

nuclear projects begin safety-related construction, costs

tend to increase dramatically.

(2) Because there were too few engineering drawings

to support the safety-related construction, work was

performed out of sequence, which contributed to

inefficiencies, rework, loss of efficient use of personnel,

increased costs, and schedule delays.

(3) When HL & P received the project's construction

permit in 1976, structural engineering could not support

construction.

(4) All of the participants, other than HL & P, hired Gibbs

and Hill, a well-recognized A/E, to study the baseline

estimate prepared by the task force composed of HL & P,

Brown & Root, and Management Analysis. The Gibbs and

Hill study reported, “At the time construction was initiated,

engineering was behind schedule in issuing construction

drawings and subsequent issues were not far enough ahead

of construction needs to support the ongoing construction

program efficiently.”

(5) HL & P's sworn answers to interrogatories sent by

Brown & Root during the Brown & Root litigation read,

“HL & P believes that Brown & Root construction went

to the field too early.” “The number of design drawings

prepared was totally inadequate to support construction

efficiently. If candid reports concerning the amount of

engineering completed at the end of 1975 had been given

to the management committee, it is likely that construction

would not have started in the spring of 1976 and a

key project mistake would have been avoided.” “HL &

P believes the fact that [Brown & Root] engineering

and design work was never able to support construction,

inevitably caused project work to proceed in a manner

involving waste and inefficiency.” “In truth, 60 percent of

the engineering had not been completed by the latter part of

1975 but rather, probably not in excess of five to ten percent

of the engineering necessary to support construction had

been completed and the percentage may have been ...

materially smaller.”

(6) The 1977, 1978, and 1979 Management Analysis

reports concluded that the project began safety-related

construction too soon.

(7) HL & P discussed for hours with Brown & Root

the decision whether to start safety-related construction in

1976 for hours with Brown & Root and knew that it was

a calculated risk.

(8) Brown & Root started safety-related construction only

at HL & P's request.

(9) Despite knowing that only sixty percent of the

engineering was complete, HL & P recommended to

the management committee that safety- *798 related

construction begin on the project.

(10) At the March 12, 1976 management committee

meeting, Brown & Root, when asked whether

engineering could support the project construction

schedule, responded “Hell, yes,” even though it knew

that response was untrue.

(11) If Austin had known that Brown & Root's engineering

was inadequate to support the safety-related construction

in April 1976, Austin would have recommended either

that the work on the project stop until Brown & Root's

engineering could catch up with construction and find

solutions for and fix the problems or that the project be

canceled.

(12) If the other participants had indicated that they were

not ready to start safety-related construction or were not

willing to vote for it, then HL & P would not have been

able to start safety-related construction.

(13) Each day the project was delayed, the project's cost

increased by $750,000 based on the carrying costs of

the investment, which included interest on the money

borrowed, the cost of the support staff, and the cost of

keeping the construction force on the job, and the cost

of replacement power.
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19

Evidence Supporting Jury Finding

The following evidence supports the jury's finding:

(1) Donley Jordan, HL & P's chief executive officer

and chairman of the board, testified, “Everybody in the

Houston Lighting & Power Company organization who

had anything to do with the South Texas Project felt it

was the right thing to do to go forward with safety related

construction, and that there was no undue risk involved in

it.” He also stated that no one at Brown & Root told HL & P

that Brown & Root believed it was extremely risky to begin

safety-related construction in spring 1976. He also testified

that HL & P took the position during the Brown & Root

litigation that starting safety-related construction was a key

project mistake because at that time no one knew what it

would take to complete a nuclear power plant and that HL

& P had asked its lawyers to draft a petition as broad as

they thought the participants had a chance to prove. He also

stated that, looking back, he knew of no one who has done a

detailed study on the project that said that the project should

not have started safety-related construction at that time. He

further testified that at the time the decision was made to

start safety-related construction, all the participants had the

same information as HL & P.

(2) Ed Turner, HL & P's general manager of power

plant engineering and construction for the project, and

Ralph Hernandez, an HL & P engineer, testified that

they had no concern in March 1976 about Brown &

Root's engineering being adequate to support safety-related

construction. Hernandez also testified that sufficient

engineering drawings were available and that no problems

occurred in 1977 through 1980 that resulted from the

failure to have sufficient engineering drawings complete at

the time safety-related construction began in April 1976.

(3) Brown & Root did not tell HL & P that its engineering

was inadequate to support safety-related construction. At

the April 1976 management committee meeting, Brown

& Root told HL & P that engineering was sixty-three

percent complete and purchasing was twenty-two percent

complete.

(4) The project met every scheduled construction activity

in 1976. These acts could not have occurred without having

sufficient engineering drawings available.

*799 (5) The decision to start safety-related construction

was made in September 1975 when the management

committee was reviewing the utilization of the limited

work authorization permit.

(6) No inefficient cost, inordinate amount of rework, or

inordinate amount of work performed out of sequence was

a result of beginning the safety-related construction work

in April 1976.

(7) Based on the critical path analysis, work on the project

progressed at a better than average or at an average rate

for comparable plants built during that time until late 1979.

This indicates that the engineering was adequate to support

construction up to 1980.

(8) Darrell Halligan, Bechtel's vice president for

the project's operations, testified that the amount of

engineering that Brown & Root had available prior to

beginning safety-related construction was comparable to

other nuclear projects that he had supervised.

(9) Jack Mooney, Brown & Root's engineering manager

and the person who told the participants at the March 12,

1976 management committee meeting that Brown & Root

was ready to begin safety-related construction, testified

that there were adequate engineering drawings available

to start safety-related construction in April 1976. He also

testified that his speech to the management committee and

the decision to start safety-related construction was made

by him without influence from either Brown & Root's

management or HL & P personnel.

(10) Robert Traylor, Management Analysis's cofounder,

testified that his company found no cost or schedule

problems that resulted from beginning safety-related

construction in 1976.

After considering all of the evidence, we conclude that the

jury's finding that any failure to provide information did not

cause excess project costs is not against the great weight

and preponderance of the evidence. The evidence, therefore,

supports the jury's finding. Because the jury's finding that any

failure to provide information did not cause excess project

costs is not against the great weight and preponderance of the

evidence, the trial court did not err when it overruled Austin's

motion for new trial. We overrule Austin's fifth point of error.

Because of our disposition of Austin's fifth point of error,

we need not address HL & P's first conditional cross-point
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20

requesting this Court to affirm the trial court's judgment as to

Austin's breach of contract claim.

Austin's DTPA Claims

In its sixth point of error, Austin argues that HL &

P's unconscionable conduct adversely affected Austin. On

appeal, Austin appears to rest its DTPA claim solely on HL &

P's conduct in relation to the decision to begin safety-related

construction in 1976.

[38] [39] An “unconscionable action or course of action”

means an act that (1) takes advantage of a consumer's lack of

knowledge to a grossly unfair degree or (2) results in a gross

disparity between the value received and consideration paid.

TEX.BUS. & COM.CODE ANN. § 17.45(5) (Vernon 1987);

Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex.1985). Taking

advantage of a consumer's lack of knowledge to a grossly

unfair degree requires a showing that the resulting unfairness

was glaringly noticeable, flagrant, complete, and unmitigated.

Chastain, 700 S.W.2d at 584. A gross disparity between

value received and consideration paid means a glaring and

flagrant disparity. Id. at 583. A consumer's proof of gross

unfairness and gross disparity does not require proof that the

defendant acted intentionally, knowingly, or with conscious

indifference. Chastain, 700 S.W.2d at 583.

Evidence Contrary to Jury Finding

Austin relies on the same evidence set forth above under its

fifth point of error to *800 support its argument here that the

jury's finding that HL & P's unconscionable conduct did not

affect Austin was against the great weight and preponderance

of the evidence.

Evidence Supporting Jury Finding

[40] The following evidence supports the jury's finding that

HL & P did not take advantage of Austin to a grossly unfair

degree:

(1) Management Analysis did not base its statement that

Brown & Root began safety-related construction too

soon on the fact that there were an inadequate number

of engineering drawings or engineering studies. Rather,

Management Analysis repeated a statement made by

Knox Broom, one of Brown & Root's senior vice

presidents, at the September 21, 1978 management

committee meeting, that the engineering drawings were

only eight percent complete at the time Brown & Root

started safety-related construction, thus propagating

a myth, which others repeated without performing

additional analysis or studies, that Brown & Root was

not prepared to start safety-related construction when it

did.

(2) Brown & Root's statement in 1976 that sixty percent of

the engineering was complete was accurate considering

the information available at that time. Brown & Root

based its statement on an estimate that the project would

take two million engineering man-hours to complete and

that Brown & Root had used sixty percent of those manhours at that time. By 1978, the estimate of engineering

man-hours grew to twenty million. In hindsight, this

meant that Brown & Root had actually completed less

than eight percent of the engineering before beginning

safety-related construction. Broom based his statement

on the revised engineering man-hour estimate.

(3) Kleinrath reached his conclusion that Brown &

Root's engineering was inadequate to start safety-related

construction based on only four or five engineering

drawings provided by Austin's lawyers.

(4) Mooney, Brown & Root's engineering manager in April

1976, testified that neither Management Analysis nor

Gibbs and Hill ever discussed with him whether Brown

& Root's engineering was sufficient to begin safetyrelated construction. Prior to testifying, he reviewed all

the engineering drawings produced by Brown & Root

up to March 12, 1976. By March 12, 1976, almost 700

engineering drawings were complete or issued.

(5) Ralph Hernandez, an HL & P engineer whose

responsibilities in 1976 included providing HL & P with

an overview of Brown & Root's structural engineering,

reviewed the drawings available before April 1976.

Based on this review, he testified that engineering was

sufficient to support construction. He further testified

that engineering did not fall behind construction until the

first quarter of 1978.

After a review of the evidence, we conclude that (1) the jury

heard evidence that, at the time the decision was made to

start safety-related construction, HL & P believed that Brown

& Root's engineering was sufficient to support safety-related

construction and (2) any statements HL & P made to that
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 21

effect were not unconscionable in a manner that would take

unfair advantage of Austin. We further conclude that the true

percentage of engineering drawings completed by Brown &

Root in March 1976 could only be determined in hindsight at

the end of the project. HL & P had to base its decision on the

information available at the time.

The following evidence supports the jury finding that there

was not a gross disparity between the value of the plant that

Austin received and the consideration it paid:

(1) Of the plants available for Austin to use to generate

electricity, the project is the cheapest to operate. Utilities

*801 place into operation the cheapest plants first.

(2) In its 1973 generating plan, Austin determined that

the cost of electric energy was the result of capital

investment, fuel, maintenance, and operations. Its goals

in its 1987 generating plan were to:

—meet long-term customer demand;

—provide electricity with adequate reliability;

—minimize the cost of generating electricity to the rate

payers; and

—diversify energy resources.

(3) Without the project, Austin would pay $40–$100

million/year more to operate its system. Over the

project's lifetime, this adds up to an $11.6 billion savings

(represented to the jury as $2.5 billion in 1989 dollars).

(4) Austin will experience savings as a result of the project's

reliability. Reliability means the frequency with which

outages will occur, the number of customers affected,

and how long those outages will last. Without the

project, these events will occur more frequently and be

of longer duration. Austin's target energy reserve was

twenty percent. Without the project, there will be several

times that its reserve will fall below that number. The

project's reliability value equals $6.7 billion ($1.2 billion

in 1989 dollars).

(5) Austin's cost to build and operate the project for

a lifetime is $9.065 billion ($3.375 billion in 1989

dollars). This amount includes: the amount that Austin

will pay to service its debt; Austin's share of the total

capital cost to build the project, less Austin's share

of the Brown & Root settlement; the cost to operate

the project over its useful lifetime, which includes

routine maintenance, operating personnel, and nuclear

fuel; capital additions, which includes upgrading the

plant and insuring continual compliance with quality and

safety requirements; and the cost of decommissioning

the plant.

(6) Based on fuel savings and reliability only, the project's

lifetime value to Austin exceeds its costs by $9.206

billion ($357 million in 1989 dollars).

(7) In addition to fuel and reliability savings, the project

also added diversity to the types of plants available to

Austin to generate electricity.

(8) It would have cost Austin $432 million (in 1989 dollars)

more to own and operate a coal plant over its lifetime.

After a review of the evidence, we conclude that the jury

could have found that the project's value to Austin exceeds

Austin's share of the construction costs. Because the evidence

shows that HL & P did not take advantage of Austin's

lack of knowledge and that no disparity exists between the

value Austin received and the consideration it paid, the jury's

finding that no deceptive trade practice or unconscionable

act by HL & P adversely affected Austin is not against the

great weight and preponderance of the evidence. We overrule

Austin's sixth point of error. Because of our disposition

of Austin's sixth point of error, we need not address HL

& P's second cross-point concerning whether Austin is a

“consumer” as to HL & P as defined by the DTPA or whether

HL & P is liable for any DTPA violations by Brown & Root.

CONCLUSION

Because (1) the duty of reasonable skill and care is not implied

in the participation agreement, (2) the newspaper articles are

not hearsay, (3) the jury charge was proper, (4) the jury's

findings are not against the great weight and preponderance of

the evidence, and (5) the trial court properly denied Austin's

motion for new trial, the trial court committed no reversible

errors. We overrule all of Austin's points of error.

We affirm the trial court's judgment.

All Citations

844 S.W.2d 773
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 22

Footnotes

1 See Ferguson v. Williams, 670 S.W.2d 327, 331 (Tex.App.—Austin 1984, writ ref'd n.r.e.) (managing partner held not

liable for mismanagement of a joint venture despite six specific acts of negligence); accord, Marcus v. Green, 13 Ill.App.3d

699, 300 N.E.2d 512, 520 (1973) (partner responsible for violation of scaffolding safety statute entitled to indemnity from

partnership as risk inherent in partnership business); Charlton v. Sloan, 76 Iowa 288, 41 N.W. 303, 304 (1888) (partner

not charged with loss resulting from unwise lease); Hurter v. Larrabee, 224 Mass. 218, 112 N.E. 613, 614 (1916) (partner

with duty to supervise books not charged when there was only “mere negligence” in failure of duty to supervise); Thomas

v. Milfelt, 222 S.W.2d 359, 365 (Mo.App.1949) (partner not charged with losses unless they result from fraud, culpable

negligence, or bad faith); J.E. Crosbie, Inc. v. King, 192 Okl. 53, 133 P.2d 543, 546 (1943) (partners assume risk of loss

that comes from bad judgment); Knipe v. Livingston, 209 Pa. 49, 57 A. 1130, 1130 (1904) (deceased partner who had

been lax in collecting accounts and had carried bad debts as assets was not charged with resulting losses); Binning v.

Miller, 55 Wyo. 478, 102 P.2d 64, 76 (1940) (absent fraud, culpable negligence, or bad faith, cotenant who acted in good

faith not liable for exercising poor judgment).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015)

2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 2147986

Supreme Court of Texas.

City of Dallas, Petitioner,

v.

TCI West End, Inc., Respondent

No. 13–0795 | OPINION

DELIVERED: May 8, 2015

Synopsis

Background: City brought action against developer for

demolishing a historic building in violation of city

ordinances and for fraud. Texas Historical Commission

(THC) intervened to recover damages for demolition of

historic structure without appropriate written permission

from municipality. The 160th Judicial District Court, Dallas

County, No. 06–04868–H, Jim Jordan, J., entered judgment

on special jury verdict for city and THC in part, and granted

developer's motion for judgment notwithstanding the verdict

(JNOV) in part. The Dallas Court of Appeals affirmed in part,

reversed in part, and rendered judgment, 407 S.W.3d 292.

City's petition for review was granted.

Holdings: The Supreme Court held that:

[1] statutes authorizing municipalities to bring civil actions

and to recover civil penalties for violations of ordinances

provided City authority to bring action against developer, and

[2] statute authorizing municipalities to recover civil penalties

for violation of ordinances applied to instances in which a

defendant violated an ordinance after receiving notice of an

ordinance's provisions or failed to take action necessary for

compliance with the ordinance after receiving such notice.

Reversed and remanded.

ON PETITION FOR REVIEW FROM THE COURT OF

APPEALS FOR THE FIFTH DISTRICT OF TEXAS

Attorneys and Law Firms

Barbara E. Rosenberg, Christopher D. Bowers, James B.

Pinson, Assistant City Attorneys, Christopher J. Caso, City

Attorney's Office, Melissa A. Miles, City of Dallas, Warren

M.S. Ernst, Dallas City Attorney, Dallas, Janet Marie

Spugnardi, City Attorney's Office, Irving, Jennifer Anne

Richie, City of Waco Legal Serv. Dept., Waco, Jennifer

Avalon Whit DeCurtis, Messer, Rockfeller & Fort, PLLC,

Marsha L. Foulks, Attorney at Law, Frisco, for Petitioner City

of Dallas.

Melissa Ann Johnson, Mitchell Madden, Thomas V. Murto

III, Holmgren Johnson: Mitchell Madden, LLP, Robert B.

Gilbreath, Hawkins Parnell Thackston & Young LLP, Dallas,

for Respondent TCI West End, Inc.

Jarold Lee Apple, How Frels Rohde Woods & Duke, R.

Michael Northrup, Cowles & Thompson, P.C., Dallas, for

Amicus Curiae The National Trust for Historic Preservation.

Joe H. Thrash, Assistant Attorney General, Austin, for

Intervenor Texas Historical Commission

H. Grady Chandler, Attorney at Law, Garland, for Other

Interested Party Dorbet, Inc.

Lawrence J. Friedman, Friedman & Feiger, LLP, Dallas, for

Other Interested Party Weir Industries, Inc.

Opinion

PER CURIAM

*1 Section 54.012(3) of the Texas Local Government

Code authorizes a municipality to pursue a civil action

against a property owner to enforce an ordinance “for zoning

that provides for the use of land or classifies a parcel of

land according to the municipality's district classification

scheme.”TEX. LOC. GOV'T CODEE § 54.012(3). Despite

section 54.012(3)'s clear and unambiguous language, the

court of appeals held that a municipality cannot pursue a civil

action under that statute for violations of “general zoning

ordinances regulating the use of land.” 407 S.W.3d 292,

301 (Tex.App.–Dallas 2013). Because the court of appeals'

holding is incompatible with the statute's plain language, we

reverse the court's judgment and remand the case to the court

of appeals for further proceedings.

The City of Dallas contends that TCI West End, Inc.

(TCI) demolished a building located in a historic overlay

district in violation of a city ordinance. See Dallas City

Ordinance No. 21391, as amended by Ordinance No. 22158,

§ 7.1 (requiring building owner, prior to demolishing or

altering building located in historic overlay district, to apply

for determination as to whether structure is “contributing
City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015)

2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

structure” subject to strict demolition requirements); see

also id. at § 4 (incorporating chapter 51A of the Dallas

City Code); Dallas, Tex. City Code § 51A–4.501(a)–(p)

(regulating historic overlay districts). 1 Among other claims,

the City sued TCI for civil penalties under section 54.017

of the Texas Local Government Code, as authorized by

section 54.012 of the code. SeeTEX. LOC. GOV'T CODEE §

54.012 (listing types of ordinances municipality can enforce

by civil action), .017 (authorizing civil penalties for ordinance

violations). Following a jury verdict in the City's favor, the

trial court rendered judgment awarding the City $750,000 in

civil penalties.

The court of appeals reversed, holding that sections 54.012

and 54.017 apply only to health and safety ordinances, not

“general zoning ordinances regulating the use of land.” 407

S.W.3d at 301. In the alternative, the court held that the

City presented no evidence that TCI was informed about the

relevant ordinance provision before demolishing the building,

as required to obtain civil penalties under section 54.017. Id.

at 301. On rehearing, one justice dissented on both counts,

explaining that (1) sections 54.012 and 54.017 do not contain

the health-and-safety limitation imposed by the court and (2)

sufficient evidence supported the jury's finding that TCI had

actual notice of the ordinance provision before demolishing

the building. Id. at 302–05.

[1] Although other issues have been raised on appeal, the

threshold issues are (1) whether sections 54.012(3) and

54.017 are limited to enforcement of “health and safety”

zoning ordinances; and (2) whether section 54.017 requires

that actual notice be effected before violation of the applicable

ordinance. 2 These matters present questions of law that we

review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621,

625 (Tex.2008).

*2 [2] [3] [4] Our primary objective in construing a

statute is to give effect to the Legislature's intent as expressed

in the statute's plain language. TGS–NOPEC Geophysical Co.

v. Combs, 340 S.W.3d 432, 439 (Tex.2011). We consider the

statute as a whole, rather then viewing individual provisions

in isolation, and presume the Legislature selected the statute's

language with care, choosing each word for a purpose and

purposefully omitting words not chosen. Id. We must avoid

adopting an interpretation that “renders any part of the statute

meaningless.” Crosstex Energy Servs, L.P. v. Pro Plus, Inc.,

430 S.W.3d 384, 390 (Tex.2014).

Section 54.012, which is located in chapter 54, subchapter

B of the local government code, authorizes a municipality

to pursue a civil action against a property owner to enforce

several categories of ordinances, including “an ordinance ...

for zoning that provides for the use of land or classifies

a parcel of land according to the municipality's district

classification scheme.” TEX. LOC. GOV'T CODEE §

54.012.

3

 The remaining provisions in subchapter B address

the rules, procedures, and relief available for a civil action

authorized by section 54.012. See id. §§ 54.013–.020.

Among other available remedies, section 54.017 permits a

municipality to recover civil penalties, up to specified limits,

upon proof that:

(1) the defendant was actually notified of the provisions of

the ordinance; and

(2) after the defendant received notice of the ordinance

provisions, the defendant committed acts in violation of the

ordinance or failed to take action necessary for compliance

with the ordinance.

Id.§ 54.017.

The court of appeals determined that all the provisions

in subchapter B, including sections 54.012(3) and 54.017,

“relate only” to health and safety matters and thus do not

apply to general zoning ordinances regulating the use of land.

407 S.W.3d at 301. The court further held that the City's

historic-district regulation does not qualify for enforcement

as a health-and-safety ordinance under subchapter B because

its stated purpose is to “protect buildings of historical,

cultural, and architectural significance” in the historic overlay

district. Id. (citing Dallas City Ordinance No. 21391, as

amended by Ordinance No. 22158). As a result, the court

concluded that the ordinance can only be enforced under

chapter 211 of the local government code, id. which governs

municipal zoning and has a stated purpose of “promoting

the public health, safety, morals, or general welfare and

protecting and preserving places and areas of historical,

cultural, or architectural importance and significance,”TEX.

LOC. GOV'T CODEE § 211.001.

To support this construction of subchapter B, the court of

appeals cited a Texas Attorney General opinion limiting the

statute's application to health and safety matters because (1)

it is entitled “Municipal Health and Safety Ordinances” and

(2) section 54.012 specifically refers to those types of matters

in some of its subsections. Id. (citing Tex. Att'y Gen. Op.

No. GA–0267 (2004)). The court also cited Hollingsworth
City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015)

2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

v. City of Dallas, 931 S.W.2d 699 (Tex.App.–Dallas 1996,

writ denied), in which the court had previously resolved

an apparent conflict between the injunctive-relief provisions

in chapters 54 and 211 as they pertain to general zoning

ordinances regulating the use of land. In Hollingsworth, a

property owner had argued that the City of Dallas could

not obtain injunctive relief for a zoning-ordinance violation

without complying with section 54.106, which authorizes

injunctive relief only on “a showing of substantial danger

of injury or an adverse health impact to any person or

to the property of any person other than the defendant.”

Id. at 702;TEX. LOC. GOV'T CODEE § 54.016. Section

211.012(c)'s injunctive-relief remedy includes no similar

requirement. 4 TEX. LOC. GOV'T CODEE § 211.012(c).

The court resolved the conflict in favor of section 211.012's

application because it specifically applies to ordinances

regulating the use of land and section 54.016 does not.

931 S.W.2d at 703 (construing statutes to avoid creating

a conflict and determining that “the Legislature intended

section 211.012 to apply to ordinances regulating the use of

land and intended section 54.016 to apply to other types of

ordinances not at issue”).

*3 We hold that the court of appeals' interpretation of section

54.012(3) as incorporating a health-and-safety limitation is

contrary to the plain and unambiguous language in the statute

and would render meaningless and redundant language in

that section expressly circumscribing other categories of

ordinances enforceable under subchapter B.

Section 54.012(3) expressly authorizes municipalities, such

as the City, to enforce ordinances “for zoning that provides

for the use of land or classifies a parcel of land according

to the municipality's district classification scheme.”TEX.

LOC. GOV'T CODEE § 54.012(3). Section 54.012(3)'s

language plainly encompasses the zoning ordinance at issue

in this case, and neither the words “health” and “safety”

nor analogous limitations are included anywhere therein. In

comparison, at least three other subsections of section 54.012

expressly limit the types of ordinances that may be enforced

to those involving health or safety matters or use comparable

terminology. Seeid. § 54.012(1) (pertaining to ordinances

“for the preservation of public safety, relating to [building

construction]”), .012(2) (referring to ordinances “relating

to the preservation of public health or to the fire safety

of a building or other structure or improvement”), .012(6)

(applying to ordinances “relating to dangerously damaged or

deteriorated structures or improvements”).

As a general principle, we eschew constructions of a

statute that render any statutory language meaningless or

superfluous. Crosstex, 430 S.W.3d at 390. By interposing a

limitation into subsection (3) that the Legislature deliberately

chose to include in some—but not all—of section 54.012's

subparts, the court of appeals' construction of the statute

defeats the purpose of the Legislature's carefully chosen

words. This we cannot abide.

We likewise do not attribute decisive weight to subchapter

B's title because “[t]he heading of a title, subtitle, chapter, or

section does not limit or expand the meaning of a statute.”

See TEX. LOC. GOV'T CODEE § 311.024; see also Waffle

House, Inc. v. Williams, 313 S.W.3d 796, 809 (Tex.2010).

Nor do we perceive a fatal conflict between chapter 54,

subchapter B and chapter 211 that would render the former

wholly inapplicable to a general land-use ordinance despite

its plain language. Chapter 54 provides municipalities with

general authority to enforce ordinances whereas chapter 211

grants municipalities specific authority to pass substantive

ordinances regulating zoning. Whatever conflict may exist

between the injunctive relief available under each of these

statutory schemes, we cannot say that the statutes are

mutually exclusive merely because they overlap in scope.

Although both statutory schemes authorize recovery of

civil penalties, the availability of the particular remedies

hinge on distinct procedural mechanisms. Chapter 54 creates

a framework for pursuing civil penalties for specific

conduct while chapter 211 permits, but does not require,

municipalities to adopt civil penalties for the violation of

an ordinance adopted under that chapter. Compare TEX.

LOC. GOV'T CODEE § 54.017withid. § 211.012(b). The

City's election to forego adopting specific civil penalties for

violations of specific zoning ordinances does not preclude the

City from pursuing the remedies already available to it under

chapter 54, subchapter B, on the terms provided therein.

*4 Applying section 54.012(3)'s plain language, we

conclude that chapter 54, subchapter B authorizes a suit for

civil penalties based on a violation of the land-use restrictions

embodied in Dallas City Ordinance No. 21391, as amended

by Ordinance No. 22158. The court of appeals' contrary

holding is erroneous.

[5] In an alternative holding, the court of appeals determined

that the City's civil-penalty claim would fail on the

merits due to legally insufficient evidence that TCI had

received actual notice of the ordinance provision before
City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015)

2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

it demolished the building in violation of the ordinance.

Although acknowledging the existence of evidence that TCI

had actual notice of some of the requirements for obtaining

a demolition permit for buildings in the historic district, the

court held that the City “presented no evidence that [TCI] was

ever informed of the ordinance provisions themselves before

the building was demolished.” 407 S.W.3d at 301 (emphasis

added).

Regardless of the validity of the court's assessment of

the evidence, which we need not consider, the court's

analysis fails because section 54.017 authorizes an award of

civil penalties if the defendant violated an ordinance after

receiving notice of its provisions or failed to take action

necessary for compliance with the ordinance after receiving

such notice. TEX. LOC. GOV'T CODEE § 54.017(a). The

statute's use of “or,” a disjunctive, identifies two alternative

bases for recovering civil penalties. See id.; see also City

of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 642

(Tex.2013). The City asserts that the court of appeals erred

because there is some evidence that, even if TCI did not

receive actual notice of the ordinance provisions until after

it had already violated the ordinance by demolishing the

building, TCI could have sought a post-demolition permit

or taken other steps “necessary for compliance with the

ordinance after receiving such notice.” In response, TCI

contends that it could not possibly have complied with the

ordinance after it demolished the building, because “to bring

itself into compliance with the ordinance after demolition,

[TCI] would have to obtain approval from the Landmark

Commission before the demolition.”

The court of appeals did not address these arguments. Instead,

it concluded that there was no evidence that TCI had actual

notice before it “violated an ordinance” by demolishing

the building, without considering whether TCI could have

“take[n] action necessary for compliance with the ordinance

after receiving such notice.” Without addressing whether,

in fact, TCI could have taken action to comply with the

ordinance after receiving actual notice of the ordinance, we

agree with the City that the court of appeals erred in failing to

consider whether the civil-penalty award could be sustained

under this alternative statutory ground.

Accordingly, without hearing oral argument, we reverse

the portion of the court of appeals' judgment concluding

that chapter 54, subchapter B does not authorize the City's

enforcement action against TCI and remand the cause to that

court for further proceedings consistent with this opinion.

SeeTEX. R. APP. P. 59.1.

All Citations

--- S.W.3d ----, 2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

Footnotes

1 The ordinance defines a “contributing structure” as one that “retains its essential architectural integrity of design and

whose architectural style is typical or integral to [the] district.”

2 The City has not appealed adverse holdings by the trial court and court of appeals on its other claims.

3 Although the statute has been amended since the events giving rise to this litigation, the changes are not material to the

issues on appeal; accordingly, we cite the current version of the statute for convenience.

4 Section 211.012(a) authorizes a municipality to adopt ordinances to enforce (1) the provisions of chapter 211, subchapter

A, which imbues municipalities with the authority to adopt general zoning regulations, and (2) any ordinance or regulation

adopted thereunder. TEX. LOC. GOV'T CODEE § 211.012. Section 211.012(c) provides that “in addition to other

remedies,” a municipal authority may obtain an injunction “[i]f a building or other structure is erected, constructed,

reconstructed, altered, repaired, converted, or maintained ... in violation of this subchapter or an ordinance or regulation

adopted under this subchapter.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

851 S.W.2d 896

Court of Appeals of Texas,

Austin.

CITY OF EL PASO and Public

Utility Commission of Texas,

v.

EL PASO ELECTRIC COMPANY.

No. 3–92–038–CV. | March 10, 1993.

| Rehearing Overruled May 26, 1993.

Electric company and city sued for judicial review of

final order issued by public utility commission in fuel

reconciliation proceeding. The 147th Judicial District Court,

Travis County, F. Scott McCown, J., affirmed agency order

in one part and reversed it in another, remanded case to

commission, and commission and city appealed. The Court of

Appeals, Powers, J., held that: (1) commission was required

to provide explanation for choice of meaning it assigned to

word “prospectively” which produced inconsistent treatment

of capacity costs in two back-to-back reconciliation periods,

and (2) commission was not obliged to deduct all profit

from off-system sales in calculating company's known and

reasonably predictable fuel costs.

Affirmed.

Attorneys and Law Firms

*897 Norman J. Gordon, Diamond, Rash, Gordon &

Jackson, P.C., El Paso, for City of El Paso.

Dan Morales, Atty. Gen., Mary A. Keeney, Asst. Atty. Gen.,

Austin, for Public Utility Com'n of Texas.

John F. Williams, Clark, Thomas, Winters & Newton, Austin,

for El Paso Elec. Co.

Before POWERS, ABOUSSIE and B.A. SMITH, JJ.

Opinion

POWERS, Justice.

El Paso Electric Company and the City of El Paso sued

for judicial review of a final order issued by the Public

Utility Commission in a contested case, a “fuel-reconciliation

proceeding” initiated by the Company in which the City

intervened. See Public Utility Regulatory Act (PURA),

Tex.Rev.Civ.Stat.Ann. art. 1446c, § 69 (West Supp.1993);

Texas Administrative Procedure and Texas Register Act

(APTRA), Tex.Rev.Civ.Stat.Ann. art. 6252–13a, § 19 (West

Supp.1993). In its final judgment, the district court affirmed

the agency order in one part and reversed it in another,

remanding the case to the Commission. The Commission and

the City appeal. See APTRA § 20. We will affirm the districtcourt judgment.

FUEL–RECONCILIATION PROCEEDINGS

An electric utility is generally entitled to recover through

its rates any sums expended for reasonable and necessary

operating expenses, including the cost of fuel and fuel-related

items. PURA § 39(a). A utility incurs these fuel costs directly

when it generates its own electric power; it incurs them

indirectly, as an element of the price paid, when the utility

buys electric power from another. Although the Company

generates its own electric power, it also purchases electric

power under a contract with Southwestern Public Service

Company.

Before 1983, the Commission calculated an electric utility's

operating expenses (and hence the utility's rates) based on

actual fuel costs, authorizing the utility to “pass through”

automatically to its customers any increases or decreases in

such costs. 1 The legislature forbade the practice in 1983. 2

To accommodate the new legislation, *898 the Commission

promulgated a set of rules known collectively as the “fuel

rule.” 8 Tex.Reg. 3540 (1983) (16 Tex.Admin.Code § 23(b),

since amended).

As a practical matter, the Commission cannot embark upon

and decide a new rate case with each variation in fuel prices.

The agency therefore adopted, for its ratemaking, the device

of a “fixed fuel factor.” This factor is the sum of a utility's

“known costs” for fuel plus its “reasonably predictable fuel

costs.” The latter element renders the sum a mere estimate

of the utility's fuel costs. Nevertheless, the estimate is fixed

for ratemaking purposes as the utility's hypothetical fuel cost;

it is used in calculating the utility's total operating expenses

and, ultimately, the rates the utility is permitted to charge its

customers. 16 Tex.Admin.Code §§ 23.23(b)(2)(B), 23.23(c).

Because actual fuel costs may vary from the estimate, after

the rates go into effect, the utility may recover through its

rates more or less than the net income its rates were designed

to produce. Consequently, the fuel rule provides for periodic
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

adjustments or “reconciliations” of the difference between

actual fuel costs and the hypothetical cost represented by

the fixed-fuel factor. 16 Tex.Admin.Code § 23.23(b)(2)(H).

The reconciliation may be part of a general rate case or an

independent reconciliation proceeding. Id. Depending on the

result of the reconciliation, the utility may be required to

refund to its customers an over-recovery of fuel costs or it may

be permitted to recoup an under-recovery through surcharges

to its customers. 16 Tex.Admin.Code §§ 23.23(b)(2)(B), (F),

(G).

PURCHASED–POWER CAPACITY COSTS

Not every fuel-related cost is includable in a utility's

fixed-fuel factor; consequently, not every fuel-related cost

is recoverable through the reconciliation process. One

excludable item is denominated “purchased power capacity

costs.” The term “capacity costs” refers to one element of

the price charged by a seller of electric power—an element

that represents the seller's fixed costs in generating the power.

(Another element, denominated “energy charges,” represents

the seller's variable costs in generating the power—the cost

of fuel, for example). A Commission regulation presently

excludes from a utility's fixed-fuel factor the capacity-cost

element of purchased power “unless the utility demonstrates

that such treatment is justified by special circumstances.”

16 Tex.Admin.Code § 23.23(b)(2)(B)(ii). The Commission's

regulations did not always allow for exceptions when

“justified by special circumstances.” Before the regulation

was adopted, the Commission issued its final order in an

earlier contested case under the agency's docket number 6350.

Docket Number 6350

Docket number 6350 was a general rate case that

included a reconciliation proceeding. The Company satisfied

the Commission that special considerations justified

reconciliation treatment of the capacity costs the Company

paid to Southwestern, during the period March 1984

through July 1985, even though such costs would not

ordinarily be entitled to such treatment. The Commission's

final order in docket number 6350 demonstrates that the

special considerations were “equitable” in nature: (1) the

purchases of power from Southwestern had benefitted the

Company's customers; (2) capacity costs were a necessary

element of the Southwestern charges; and (3) it would

be inequitable to penalize the Company for successfully

reducing its customers' bills by purchasing cheaper power

from Southwestern. The Commission's decision in this earlier

case preceded by about nine months the amendment of the

fuel rule to allow expressly for the reconciliation of capacity

costs upon a demonstration of “special circumstances”; that is

to say, the Commission viewed the equitable considerations

as amounting to an implied exception to a general rule that

capacity costs were non-reconcilable. It appears to *899 us

self-evident, therefore, that “equitable” considerations could

come within the express exception presently made by section

23.23(b)(2)(B)(ii) for “special circumstances.” No argument

is made to the contrary in the present appeal.

The Commission's final order in docket number 6350 also

adopted a part of the examiner's report wherein he stated

that he agreed with a witness's view that the capacity costs

paid to Southwestern “should be treated as a non-reconcilable

expense prospectively.” This gives rise to a part of the present

controversy.

Docket Number 8588

The contested case now before us on appeal was conducted

under the Commission's docket number 8588. It is not a

rate case but rather an independent reconciliation proceeding.

In this proceeding, the Company requested reconciliation of

$4,202,090 in capacity costs paid to Southwestern between

July 31, 1985, and April 25, 1986, a period of about nine

months. The period is the interval between the last day of the

reconciliation period covered in docket number 6350 (July

31, 1985) and the effective date of the new rates established in

that contested case (April 25, 1986). As special circumstances

justifying reconciliation of the capacity costs paid in that

period, the Company pointed to the Commission's final order

in docket number 6350, wherein the agency had declared

that capacity costs should be treated as non-reconcilable

“prospectively.” The word “prospectively” meant, according

to the Company, from and after the effective date (April 25,

1986) of the new rates established in docket number 6350.

Hence, by force of that order, the Company was entitled

to reconciliation of capacity costs paid in the nine-month

interval before the new rates became effective.

In its finding of fact 14 in docket number 8588, the

Commission rejected the Company's contention, stating

simply that the Company had “failed to show special

circumstances warranting inclusion” of such capacity costs in

the reconciliation. The sole basis for this conclusion is found
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

in a portion of the examiner's report, which the Commission

adopted in its final order: The word “prospectively,” as used

in the final order in docket number 6350, meant from and after

July 31, 1985—the end of the reconciliation period covered

in docket number 6350—as opposed to the Company's

contention that the word meant from and after April 25, 1986,

the effective date of the rates set in the Commission's final

order in docket 6350.

The Company sued for judicial review of this aspect of the

Commission's final order in docket number 8588. The district

court reversed the agency order on the ground that it was

arbitrary and capricious in failing adequately to explain why

the capacity charges were admitted to reconciliation in the

one period and denied reconciliation in the next succeeding

period. The court remanded the case to the Commission to

supply an explanation. In the Commission's only point of

error and in the City's first point of error, they complain of

this aspect of the district-court judgment.

Discussion and Holdings

[1] In its final order in the present case, the Commission

gave a single ground for its decision regarding capacity costs:

the Company failed to demonstrate the requisite “special

circumstances” because the word “prospectively,” as used in

the final order adjudicating docket number 6350, meant from

and after July 31, 1985. The final order in the present case,

excluding capacity costs from reconciliation, must stand or

fall on that basis. We are not at liberty to sustain the order

on some other basis we might imagine as being sufficient

for the different treatment in the two cases—for example, an

apparent difference in the material factual circumstances as

between the two proceedings. We may judge the sufficiency

of the Commission's order solely on the basis given by

the agency itself for its decision; to do otherwise would

constitute an invasion of the agency's province. Morgan

Drive Away, Inc. v. Railroad Comm'n, 498 S.W.2d 147, 152

(Tex.1973); *900 Professional Mobile Home Transp. v.

Railroad Comm'n, 733 S.W.2d 892, 904 (Tex.App.—Austin

1987, writ ref'd n.r.e.).

[2] We note first that the examiner's purported explanation

—that the word “prospectively” meant from and after July

31, 1985—adds nothing to enlighten the Commission's naked

conclusion that the Company had failed to demonstrate the

necessary special circumstances. Both the conclusion and

the purported explanation are equally opaque. The word

“prospectively” was ambiguous in context, and nothing in

the record before us suggests why the Commission preferred

one date over another. We are left ultimately with the stark

conclusion that “prospectively” means from and after July

31, 1985, merely because that is what the examiner in docket

number 8588 decided it meant. Was the Commission legally

obliged to supply an actual reason or explanation for its choice

of meanings? We believe it was.

We cannot find that the legislature has imposed upon the

Commission, by an explicit statutory enactment, a duty

to supply an explanation or reason for its action. But

such a requirement need not have a statutory origin. It is

preeminently a concomitant of a court's duty of judicial

review, a duty assigned the trial court and this court in

PURA § 69. This statute contemplates meaningful judicial

review, not a charade of the real thing; therefore it implies

a power to require the Commission to supply any reasons or

explanations necessary for the reviewing court to understand

the Commission's final order.

If the administrative action is to be

tested by the basis upon which it

purports to rest, that must be set

forth with such clarity as to be

understandable. It will not do for a

court to be compelled to guess at

the theory underlying the agency's

action; nor can a court be expected to

chisel that which must be precise from

what the agency has left vague and

indecisive. In other words, “We must

know what a decision means before the

duty becomes ours to say whether it is

right or wrong.”

S.E.C. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575,

1577, 91 L.Ed. 1995 (1947) (emphasis added) (citations

omitted); see also S.E.C. v. Chenery Corp., 318 U.S. 80,

94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943) (“[T]he orderly

functioning of the process of review requires that the grounds

upon which the administrative agency acted be clearly

disclosed and adequately sustained.”) (emphasis added); see

generally Bernard Schwartz, Administrative Law § 7.29,

at 429 (2d ed. 1984); Kenneth C. Davis, Administrative

Law Text § 16.07, at 326 (3d ed. 1972). The requirement

of explanations or reasons is frequently imposed when it

appears to the reviewing court that an agency has departed

from its earlier administrative policy or there exists an

apparent inconsistency in agency determinations. Louis Jaffe,
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Judicial Control of Administrative Action 587 (1965); see,

e.g., Atchison, T. & S.F. Ry. Co. v. Wichita Bd. of Trade, 412

U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973);

Secretary of Agric. v. United States, 347 U.S. 645, 653, 74

S.Ct. 826, 831, 98 L.Ed. 1015 (1954). The requirement for

explanatory “reasons” should not be confused with a statutory

requirement that binds an agency to supply findings of fact

in support of its conclusions of law, as in APTRA § 16(b).

“Reasons differ from findings in that reasons relate to law,

policy, and discretion rather than to facts.” Davis, supra, at

326. Nevertheless, agencies frequently use findings of fact to

explain the conclusions which express their choices in matters

of discretion, law, and policy. Schwartz, supra, at 428–30.

[3] We believe the Supreme Court of Texas, in Public

Utility Commission v. Gulf States Utilities, 809 S.W.2d 201,

212 (Tex.1991), adopted a requirement that agencies must

supply explanations or reasons when these are necessary to an

intelligent understanding of their final orders. There, the court

reversed a Commission decision because the agency record

revealed that the Commission had apparently considered only

a single factor in taking a particular discretionary action

(dividing between a utility and its ratepayers the benefit

of proceeds received from the sale of a utility asset). The

court noted that numerous other factors, including equitable

considerations, *901 appeared applicable to the agency's

decision in the matter. In reversing the Commission's final

order, the court wrote that the agency “ignored” the other,

apparently applicable factors, while referring only to the

testimony of two witnesses whose conclusions were not

explained in the record, and “the Commission did not

articulate its reasons for” deciding the issue based on the

single factor alone. In its remand, the court refrained from

instructing the Commission to consider particular factors and

from prohibiting its consideration of other factors, leaving the

agency free to choose and “set forth the factors it considers

relevant” together with an explanation of “how these factors

are evaluated in the present case.” Id. at 211–12. While the

court nominally reversed the agency order for a want of

“substantial evidence,” it is readily apparent that the court did

so only because of the rather peculiar meaning “substantial

evidence” bears in Texas administrative law—a meaning

that generally incorporates into a single legal precept both

arbitrary and capricious agency action under APTRA § 19(e)

(6) and a true want of substantial evidence under APTRA §

19(e)(5). See generally Kerry McGrath, Substantial Evidence

Review in Texas—Still Insubstantial After All These Years, 44

Baylor L.Rev. 223 (1992).

We hold, therefore, that the Commission's final order

erroneously omitted to supply a necessary explanation for the

choice of meaning it assigned to the word “prospectively,”

producing thereby the inconsistent treatment of capacity costs

in the two back-to-back reconciliation periods. As in Gulf

States, the agency order in docket number 8588 referred

only to the statement of an individual (the hearing examiner

in docket number 6350) whose naked conclusion was not

explained in the record. We agree with the trial court that

the failure to supply the necessary explanation was an abuse

of discretion under APTRA § 19(e)(6); it is immaterial that

under the peculiar Texas view of “substantial evidence”

the omission would also amount to a want of “substantial

evidence” under APTRA § 19(e)(5).

The City and the Commission raise several arguments to

the contrary. They first complain the Company offered no

“evidence” of special circumstances. It is clear from the

record, however, that the Company was not relying upon

evidentiary grounds for its contention that such special

circumstances existed in docket number 8588, the case

we now review. Rather, the Company was relying upon

legal grounds—that the final order in docket number 6350,

properly construed, encompassed the nine months for which

reconciliation was requested in docket number 8588. Indeed,

the Commission in docket number 8588 rejected the claim

for reconciliation on legal grounds, not evidentiary or factual

grounds, by basing the agency ruling on a construction of the

previous order, albeit in a manner contrary to that advocated

by the Company. We do not understand that the term “special

circumstances” means evidentiary grounds exclusively, and

no party suggests that it does.

The City and the Commission argue next that the examiner's

report in docket number 6350 was “clear” in affirmatively

and expressly prohibiting “prospective recovery of capacity

charges,” meaning “all capacity charges not placed in issue in

that docket.” We disagree.

The relevant part of the examiner's report declares: (1)

the examiner agreed that capacity costs “should be treated

as a non-reconcilable expense prospectively”; (2) however,

that would be inequitable (for specified reasons) with

respect to “past payments” of such costs; (3) therefore, the

examiner recommends that “prior” capacity-cost expenses be

included “in the reconciliation balance.” These declarations

are clear on one point—capacity costs paid before July

31, 1985, the end of the reconciliation period in docket

number 6350, would be reconcilable expenses under the
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

examiner's recommendation. The declarations are not clear

in the sense urged by the City and the Commission—that

they affirmatively and expressly prohibit reconciliation of the

capacity costs presently in dispute. In fact, the City offers no

argument in support of its conclusion that the declarations

are “clear” in excluding these capacity *902 costs from

reconciliation; the Commission offers only the opaque

generality that an administrative agency's interpretation of its

order is entitled to judicial deference.

We find in the declarations nothing to suggest that the

Commission, by adopting its examiner's report in docket

number 6350, prohibited reconciliation of capacity-cost

expenses in the period July 31, 1985—April 25, 1986. Indeed,

the examiner's declarations reasonably imply in context that

capacity costs paid in the period were entitled to the same

equitable justification because April 25, 1986, was the date

when the examiner's declarations first acquired legal force

and effect by the Commission's adoption of them. The terms

of the examiner's recommendation do not suggest that the

equitable considerations became inoperable on July 31, 1985,

or that the expressions “past payments” and “prior” capacitycost expenses referred to a date other than the effective date

of the order in docket number 6350.

The City and the Commission argue that the Company's

contention amounts to no more than a complaint of

“regulatory lag” during the nine months between the end

of the reconciliation period in docket number 6350 and

the effective date of the final order in that contested case.

And, they properly point out, losses occasioned merely

by regulatory lag are not recoverable by a utility. We

disagree with the theory. “Regulatory lag” refers to delay

in the “decisional process” of a regulatory agency. Railroad

Comm'n v. Lone Star Gas Co., 656 S.W.2d 421, 423

(Tex.1983). The Company does not complain of any delay in

the “decisional process” in docket number 6350. It complains

instead of the apparently arbitrary meaning assigned in the

present case to the word “prospectively” as that word was

adopted in the Commission's final order in docket number

6350. That choice of meaning, and not any delay in the

“decisional process,” fixed the time period in dispute.

Finally, the City and the Commission argue that the

phrase “arbitrary and capricious,” recited in the district-court

judgment as the basis for reversing the Commission's final

order, does not encompass the agency's failure to explain its

different treatment of capacity costs as compared to docket

number 6350. Hence, they contend, apparently, that the

Commission's final order could not be reversed on the ground

that it was “arbitrary and capricious.” In support of their

argument, the City and the Commission cite judicial decisions

that were decided on arbitrary and capricious grounds on an

apparent theory that these exhaust the possibilities and define

the limits of arbitrary and capricious action under APTRA §

19(e)(6). See Lewis v. Metropolitan Sav. and Loan Ass'n, 550

S.W.2d 11 (Tex.1977); Railroad Comm'n v. Alamo Express,

158 Tex. 68, 308 S.W.2d 843 (1958); Public Util. Comm'n

v. South Plains Elec. Coop., 635 S.W.2d 954 (Tex.App.—

Austin 1982, writ ref'd n.r.e.). We disagree with the theory. In

any case, we are obliged to affirm the district-court judgment

if it is correct on any legal ground. We have discussed those

grounds above.

For the reasons given, we overrule the Commission's only

point of error and the City's first point of error.

OFF–SYSTEM SALES REVENUES

Section 23.23(b)(2)(A) requires that a utility maintain and

provide the Commission information showing, among other

things, the utility's “off-system sales revenues.” These are

revenues derived from a utility's sales of excess electric power

to other utilities. Under § 23.23(b)(2)(B)(i), the net revenues

from these sales may be set off against costs in calculating,

for reconciliation purposes, a utility's “known or reasonably

predictable fuel costs.”

In the reconciliation period of docket number 8588, the case

we now review, the Company received from off-system sales

a net revenue equal to $3,099,564 above its costs for fuel and

fuel-related items. In its final order, the Commission declined

to deduct any part of this sum in calculating the Company's

known or reasonably predictable fuel costs. The agency noted

in its order, however, that in future reconciliation periods the

agency would deduct 75 *903 percent of such revenues in

calculating known or reasonably predictable fuel costs. 3 In

its finding of fact 11, the Commission stated: (1) profits from

off-system sales result jointly from the Company's efforts to

make such sales and from the availability of electric power

generated from facilities paid for, in effect, by the Company's

customers; (2) consequently, in future reconciliation periods

the Commission would assign 75 percent of the profits to the

customers' benefit and 25 percent to the Company's benefit to

encourage the Company to continue making such sales; and

(3) for the reconciliation period covered in docket number
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

8588, however, the profits from off-system sales would

continue to be excluded from the reconciliation calculations.

In its second point of error, the City argues the Commission

erred by not deducting all off-system sales revenues from the

Company's known and reasonably predictable fuel costs and

contends the district court erred in affirming this aspect of the

agency order.

Discussion and Holdings

[4] The City argues the Commission was obliged to deduct

all profits from off-system sales, in calculating the Company's

known and reasonably predictable fuel costs, because the

agency lacked the power to divide such profits and to assign

one part to the Company's benefit and another part to its

customers' benefit. The City bases its argument on PURA

§ 41(c) which defines the “net income” factor used to fix a

utility's rates under PURA § 39(a). 4 PURA § 41(c) defines

“net income” as “the total revenues of the public utility less

all reasonable and necessary expenses as determined by the

Commission.” (emphasis added). The substance of the City's

argument is that the statutory term “total revenues” implies

an entirety; hence it is not divisible in an agency proceeding

that pertains to ratemaking. We disagree.

In PURA the Commission received from the legislature

powers that are broad and flexible:

The commission has the general power to regulate and

supervise the business of every public utility within its

jurisdiction and to do all things, whether specifically

designated in this Act or implied herein, necessary and

convenient to the exercise of this power and jurisdiction.

[PURA § 16(a) ]

The commission is hereby vested with all authority and

power ... to insure compliance with the obligations of

public utilities in this Act. [PURA § 37]

It shall be the duty of the [commission] to insure that every

rate ... shall be just and reasonable. [PURA § 38]

In fixing a reasonable return on invested capital, the

[commission] shall consider ... the efficiency of the utility's

operations, and the quality of the utility's management.

[PURA § 39(b) ].

The breadth of discretion implied by these statutory

expressions is contradicted absolutely by the straightjacket

theory that the City erects upon an implication imputed to

the term “total revenues.” Granted that some more particular

provision in PURA might have denied the Commission

discretion to apportion net revenues from off-system sales,

expressly or by necessary *904 implication, we believe the

term “total revenues” is not such a provision. We believe,

for example, that the legislature did not intend that any

implication imputed to the term “total revenues” should deny

the Commission discretion to divide such revenues if the

division was necessary to insure a rate that is “just and

reasonable” or to secure “efficiency” in utility operations and

an acceptable “quality” in utility management. And we point

out that efficient operations and high-quality management

were the Commission's express objectives in choosing to

apportion sales revenues in this case.

The City suggests no general principle which prohibits the

division and apportionments made in the present case; the

City relies solely upon the implication it attributes to the term

“total revenues.” This implication is not the Commission's

interpretation of that expression, for section 23.23(b)(2)(B)(i)

of that rule contemplates consideration of other “conditions

or events” that bear upon a utility's fuel and fuel-related costs

in the reconciliation context. The division and apportionment

of future revenues in this case amounts to an agency

interpretation of the fuel rule. We see nothing unreasonable

or ultra vires in that interpretation, and the fuel rule pertains

ultimately to a utility's operating expenses, not its revenues.

We, therefore, overrule the City's contention that the

Commission exceeded its power and discretion when it

apportioned the off-system sales revenues.

The City contends there was insufficient evidence adduced

in the agency proceeding to support a reasonable conclusion

that an allocation of a part of the benefit to the Company

would provide an incentive to make future sales of a like

kind for the ultimate benefit of its customers. The argument

refers to that part of the Commission's finding of fact 11

which stated the agency's reason for allocating 25 percent of

the profits to the benefit of the Company in the future. The

Commission's declaration merely explained why the agency

made the allocation; it does not purport to be the declaration

of a fact inferred by the agency from evidence adduced in

the contested case. See Davis, supra. We overrule the City's

contention.
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

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[5] The City contends finally that providing the Company

an incentive to make off-system sales was not a relevant

statutory factor in establishing reconcilable fuel costs;

consequently, the Commission's decision on that basis

amounted to an abuse of discretion under South Plains

Electric Cooperative, 635 S.W.2d at 957. We disagree.

In promulgating the fuel rule, the Commission responded

to the legislative prohibition against fuel-adjustment “passthroughs.” It has not been suggested that the fuel rule, based

in part upon predicted fuel costs with periodic reconciliations

to actual costs, is an unreasonable rule or one out of harmony

with PURA. We have held that the rule lay within the

Commission's statutory power to enact at its discretion.

The rule establishes, at bottom, an arrangement by which

a hypothetical cost of fuel may be used to calculate a

utility's “reasonable and necessary operating expenses” for

purpose of PURA § 39(a), while allowing concurrently for a

consideration of some of the stated factors listed in PURA §

39(b) “in addition to other applicable factors.” If nothing else,

the allocation refers directly to “the efficiency of the utility's

operation.” In the words of PURA § 39(a), it is at least another

“applicable factor.” We overrule the City's contention.

For the reasons given, we overrule the City's second point of

error.

Finding no error, we affirm the district-court judgment.

All Citations

851 S.W.2d 896

Footnotes

1 See 16 Tex.Admin.Code § 23.23(b)(2)–(8) (1981, since amended).

2 PURA § 43(g)(1) provides that “[a] rate or tariff set by the commission shall not authorize a utility to automatically adjust

and pass through to its customers changes in fuel or other costs of the utility.” The provision was added by Acts 1983,

68th Leg., p. 647, ch. 146, § 2, effective August 29, 1983.

3 No party suggests that the futurity aspect of this part of the agency order should preclude judicial review. We see no

reason why it should. See Bernard Schwartz, Administrative Law § 9.1, at 522–25 (2d ed. 1984).

4 In a determination of allowable fuel costs, the original version of the Fuel Rule listed six costs to be considered, plus “other

costs associated with generated and purchased power.” 8 Tex.Reg. 3540 (1983) (16 Tex.Admin.Code § 23.23(b)(2)(B),

since amended). The rule further instructed that “the commission shall consider revenues and costs from these other

activities, including off-system sales, to assure that the ratepayers receive an appropriate portion of benefits associated

with such revenues.” Id. (emphasis added). Nothing in PURA or in the Commission's current regulations deals explicitly

with the calculation of off-system sales in the reconciliation of fuel costs.

Although the current version of the Fuel Rule does not contain specific reference to off-system sales, the general

language has been amended to require consideration of “other costs and revenues associated with generated or

purchased power.” 16 Tex.Admin.Code § 23.23(b)(2)(B)(i) (emphasis added).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

48 Tex. Sup. Ct. J. 848

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

168 S.W.3d 802

Supreme Court of Texas.

The CITY OF KELLER, Petitioner,

v.

John W. WILSON, Grace S. Wilson, Johnny

L. Wilson and Nancy A. Wilson, Respondents.

No. 02–1012. | Argued Oct. 19,

2004. | Decided June 10, 2005.

| Rehearing Denied Sept. 2, 2005.

Synopsis

Background: Landowners brought action against city to

recover damages for inverse condemnation and for violations

of Water Code. The 96th District Court, Tarrant County,

Jeff Walker, J., entered judgment on jury verdict in favor of

landowners. City appealed. The Fort Worth Court of Appeals,

86 S.W.3d 693, affirmed. City filed petition for review.

Holdings: The Supreme Court, Brister, J., held that:

[1] both the “exclusive” and “inclusive” standards for noevidence review are correct, in that the two standards reach

the same result, and

[2] no evidence established that city's approval of revised

drainage plans, which resulted in flooding of landowners'

farm property, was an intentional taking.

Judgment of Court of Appeals reversed; case remanded.

O'Neill, J., filed concurring opinion in which Medina, J.,

joined.

Attorneys and Law Firms

*807 Dabney D. Bassel, Larry Bracken, Law Snakard &

Gambill, P.C., Fort Worth, Douglas H. Conner III, L. Stanton

Lowry, Boyle & Lowry, L.L.P., Irving, for petitioner.

James B. Barlow, Barlow & Garsek, Fort Worth, Robert L.

Russell Bush, Bush & Morrison, Arlington, David R. Casey,

Hurst, for respondents.

Jay Doegey, Assistant City Attorney for the City of Corpus

Christi, Texas, Corpus Christi, Theodore P. Gorski Jr., Office

of the City Attorney for City of Fort Worth, Mark G.

Daniel, Evans Gandy Daniel & Moore, Fritz Quast, Taylor

Olson Adkins Sralla & Elam, LLP, Fort Worth, Monte

Akers, Texas Municipal League, Austin, Michael A. Bucek,

Senior Assistant City Attorney, Irving, Robert F. Brown,

Brown & Hofmeister, L.L.P., Richardson, Bruce S. Powers,

Assistant County Attorney, Michael A. Stafford, Harris

County Attorney, Houston, for Amicus Curiae.

Opinion

Justice BRISTER delivered the opinion of the Court, in

which Chief Justice JEFFERSON, Justice HECHT, Justice

WAINWRIGHT, and Justice GREEN joined, and in which

Justice O'NEILL and Justice MEDINA joined as to Parts I

through IV.

Must an appellate court reviewing a verdict for legal

sufficiency start by considering all the evidence or only part?

Over the years, we have stated both as the proper scope

of review. While some see the standards as opposing, we

disagree; like a glass that is half-full or half-empty, both arrive

at the same point regardless of where they start.

But both standards must be properly applied. Rules and

reason sometimes compel that evidence must be credited

or discarded whether it supports a verdict or contradicts

it. Under either scope of review, appellate courts must

view the evidence in the light favorable to the verdict,

crediting favorable evidence if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could

not. As we find the evidence here meets neither standard, we

reverse.

I. Factual and Procedural History

The City of Keller is one of several fast-growing communities

on the outskirts of *808 Fort Worth. 1 As part of that growth,

the City approved plans for two new subdivisions, Estates of

Oak Run and Rancho Serena, including plans for storm water

drainage.

The Wilsons own property southeast of the new subdivisions,

with a tract owned by Z.T. Sebastian lying between. Before

development, surface water flowed generally north to south

from the land where the subdivisions were built, across the
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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Sebastian and Wilson properties, and into the Little Bear

Creek Watershed.

In 1991, the City adopted a Master Drainage Plan providing

for drainage easements across both the Sebastian and Wilson

properties, and thence into Little Bear Creek. The City's codes

require developers to comply with the Master Plan, to provide

drainage for a 100–year rain event, and to avoid increasing

the volume or velocity of water discharged upon downhill

properties.

The developers of Oak Run and Rancho Serena submitted

plans to the City indicating they would buy a drainage

easement and build a ditch forty-five feet wide and more

than two hundred yards long across the Sebastian property,

and deed both to the City upon completion. 2 The plans also

included detention basins on the subdivision properties, but

omitted any drainage easement or ditch across the Wilsons'

property. The City's director of public works approved

the developers' plans, and the City accepted the works on

completion.

In accordance with the Master Plan, the City built a box

culvert south of the Wilsons' property. But as the developers'

drainage ditch ended at the Wilsons' north property line, there

was no link between the two. The Wilsons alleged and the

jury found this omission increased flooding on the Wilsons'

property, ruining eight acres of farmland the jury valued at

almost $300,000.

[1] To recover damages for inverse condemnation, the

Wilsons had to prove the City intentionally took or damaged

their property for public use, or was substantially certain that

would be the result. 3 They do not allege the City intentionally

flooded their land, but do allege it approved revised plans that

it knew were substantially certain to have that effect.

The City contends no evidence supports the jury's finding of

an intentional taking. It presented evidence that engineers for

the developers, for the City, and for an outside firm the City

retained all certified that the revised drainage plan complied

with the City's codes and regulations—including the ban

against increasing downstream runoff. Thus, the City asserts

it had no reason to be substantially certain the opposite would

occur, until it did.

A divided court of appeals rejected this contention. 4 In its

legal sufficiency review, the court refused to consider the

various engineers' certifications because “we are to consider

only the evidence and inferences that tend to support the

finding and disregard all evidence and inferences to the

contrary.” 5 The City challenges *809 this omission as

applying the wrong scope of review.

We have on many occasions stated the scope of review

precisely as the court of appeals says (the “exclusive”

standard). 6 But we have also stated that a reviewing court

must consider “all of the evidence” in the light favorable to

the verdict (the “inclusive” standard). 7 Sometimes we have

mentioned neither reviewing all evidence nor disregarding

some part of it. 8 Finally, we have sometimes expressly

mentioned both. 9

Although this Court has used both the exclusive and

the inclusive standards interchangeably over the years,

commentators say the two are different. 10 Because this

*810 important issue is dispositive here, we address it in

some detail, and reserve for another day the City's arguments

that a governmental entity cannot be liable for approving a

developer's plans, or accepting rather than constructing the

works at issue.

II. Contrary Evidence That Cannot Be Disregarded

The question presented here is not a new one. More than

40 years ago, then Justice Calvert 11 addressed the standards

for reviewing legal and factual sufficiency in the most-cited

law review article in Texas legal history. 12 Frustrated that

despite this Court's efforts to explain those standards “a

growing number of recent decisions indicate a continuing

misunderstanding,” 13 the author summarized and attempted

to clarify Texas law up to 1960. 14 The article's impact

remains substantial today, having been cited more than 100

times by Texas courts in the last five years.

According to the article:

“No evidence” points must, and

may only, be sustained when the

record discloses one of the following

situations: (a) a complete absence

of evidence of a vital fact; (b) the

court is barred by rules of law or of

evidence from giving weight to the

only evidence offered to prove a vital
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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fact; (c) the evidence offered to prove

a vital fact is no more than a mere

scintilla; (d) the evidence establishes

conclusively the opposite of the vital

fact. 15

We have quoted a similar formulation on many occasions. 16

Notably, Justice Calvert then proceeded to put the question

before us in the proper context:

It is in deciding “no evidence”

points in situation (c) that the courts

follow the further rule of viewing the

evidence in its most favorable light in

support of the finding of the vital fact,

considering only the evidence and the

inferences which support the finding

and rejecting the evidence and the

inferences which are contrary to the

finding. 17

[2] Clearly, the traditional rule in Texas has never been

that appellate courts must reject contrary evidence in

every no-evidence review. Instead, the traditional scope of

review does not disregard contrary evidence if there is no

favorable evidence *811 (situation (a) above), or if contrary

evidence renders supporting evidence incompetent (situation

(b) above) or conclusively establishes the opposite (situation

(d) above).

[3] [4] As the following examples show, this has remained

the rule since. We do not presume to categorize all

circumstances in which contrary evidence must be considered

in a legal sufficiency review. Evidence can be disregarded

whenever reasonable jurors could do so, 18 an inquiry that is

necessarily fact-specific. But it is important that when courts

use the exclusive standard and disregard contrary evidence,

they must recognize certain exceptions to it.

A. Contextual Evidence

In Justice Calvert's first situation—a complete absence of

evidence of a vital fact—it is generally irrelevant whether a

reviewing court considers contrary evidence. 19 If supporting

evidence is absent, opposing evidence cannot change that

result. But in a number of cases, the lack of supporting

evidence may not appear until all the evidence is reviewed in

context.

[5] [6] For example, publications alleged to be defamatory

must be viewed as a whole—including accompanying

statements, headlines, pictures, and the general tenor and

reputation of the source itself. 20 A court reviewing

legal sufficiency cannot disregard parts of a publication,

considering only false statements to support a plaintiff's

verdict or only true ones to support a defense verdict. 21

[7] [8] Similarly, reviewing courts must construe contracts

as a whole; we do not consider only the parts favoring one

party and disregard the remainder, as that would render the

latter meaningless. 22 Even writings executed at different

times must be considered together if they pertain to the same

transaction. 23

[9] It is not just writings that reviewing courts must

consider in context. For example, in reviewing intentional

infliction of emotional distress claims for legal sufficiency,

“we consider the context and the relationship between the

parties.” 24 Acts that might constitute outrageous conduct

when dealing with a hearing-impaired consumer 25 may

be legally insufficient between *812 business parties. 26

In our no-evidence reviews of successful claims, we have

invariably reviewed not just evidence showing the conduct

was outrageous, but also evidence showing that, in context,

it was not. 27

[10] More generally, evidence cannot be taken out of context

in a way that makes it seem to support a verdict when in fact

it never did. 28 If a witness's statement “I did not do that”

is contrary to the jury's verdict, a reviewing court may need

to disregard the whole statement, but cannot rewrite it by

disregarding the middle word alone.

[11] Thus, if evidence may be legally sufficient in one

context but insufficient in another, the context cannot be

disregarded even if that means rendering judgment contrary

to the jury's verdict. Either “evidence contrary to the verdict”

must be defined to exclude material contextual evidence, or

it must be an exception to the general rule.

B. Competency Evidence
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

48 Tex. Sup. Ct. J. 848

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[12] [13] It has long been the rule in Texas that

incompetent evidence is legally insufficient to support a

judgment, even if admitted without objection. 29 Thus,

evidence showing it to be incompetent cannot be disregarded,

even if the result is contrary to the verdict. If the rule were

otherwise, incompetent evidence would always be legally

sufficient, because the evidence showing it to be incompetent

could never be considered.

Thus, for example, if an eyewitness's location renders a clear

view of an accident “physically impossible,” it is no evidence

of what occurred, even if the eyewitness thinks otherwise. 30

Similarly, an employee's testimony that he was in the course

and scope of his employment is legally insufficient to support

a verdict against his employer if the evidence shows that legal

conclusion to be incompetent. 31

[14] [15] This exception frequently applies to expert

testimony. When expert testimony is required, lay evidence

supporting liability is legally insufficient. 32 In *813

such cases, a no-evidence review cannot disregard contrary

evidence showing the witness was unqualified to give an

opinion. 33 And if an expert's opinion is based on certain

assumptions about the facts, we cannot disregard evidence

showing those assumptions were unfounded. 34

[16] After we adopted gate-keeping standards for expert

testimony, 35 evidence that failed to meet reliability standards

was rendered not only inadmissible but incompetent as

well. 36 Thus, an appellate court conducting a no-evidence

review cannot consider only an expert's bare opinion, but

must also consider contrary evidence showing it has no

scientific basis. 37 Similarly, review of an expert's damage

estimates cannot disregard the expert's admission on crossexamination that none can be verified. 38

[17] Thus, evidence that might be “some evidence” when

considered in isolation is nevertheless rendered “no evidence”

when contrary evidence shows it to be incompetent. Again,

such evidence cannot be disregarded; it must be an exception

either to the exclusive standard of review or to the definition

of contrary evidence.

C. Circumstantial Equal Evidence

As noted above, Justice Calvert believed the exclusive

standard applied only when a no-evidence challenge asserted

the evidence was no more than a scintilla. 39 But he went on

to note a “variation” that required contrary inferences to be

considered when the equal-inference rule applied. 40

[18] [19] In claims or defenses supported only by meager

circumstantial evidence, the evidence does not rise above

a scintilla (and thus is legally insufficient) if jurors would

have to guess whether a vital fact exists. 41 “When the

circumstances are equally consistent with either of two facts,

neither fact may be inferred.” 42 In such cases, we must “view

each piece of circumstantial *814 evidence, not in isolation,

but in light of all the known circumstances.” 43

Justice Calvert argued there was “no necessity for the

variation” because drawing an inference based on meager

evidence was unreasonable whether or not the reviewing

court considered the opposing inferences. 44 Nevertheless, he

recognized that “[t]he opposing inference is present and it

does no harm to note its presence.” 45

In subsequent cases this Court has continued to note rather

than disregard the presence of equal but opposite inferences,

often because lower courts have overlooked them. Thus,

for example, one might infer from cart tracks in spilled

macaroni salad that it had been on the floor a long

time, but one might also infer the opposite—that a sloppy

shopper recently did both. 46 Similarly, when injury or death

occurs without eyewitnesses and only meager circumstantial

evidence suggests what happened, we cannot disregard other

meager evidence of equally likely causes. 47

[20] Thus, when the circumstantial evidence of a vital fact

is meager, a reviewing court must consider not just favorable

but all the circumstantial evidence, and competing inferences

as well.

D. Conclusive Evidence

[21] [22] Next, Justice Calvert noted that Texas courts

conducting a no-evidence review traditionally do not

disregard contrary evidence that conclusively establishes the

opposite of a vital fact. 48 He argued that this is to some

extent not a “true” no-evidence claim, as proponents may

have to show not only that no evidence supports the verdict
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but that the opposite was proved as a matter of law. 49

There are several types of conclusive evidence. First, an

appellate court conducting a legal sufficiency review cannot

“disregard undisputed evidence that allows of only one

logical inference.” 50 By definition, such evidence can be

viewed in only one light, and reasonable jurors can reach only

one conclusion from it. Jurors are not free to reach a verdict

contrary to such evidence; 51 indeed, uncontroverted issues

*815 need not be submitted to a jury at all. 52

Reviewing legal sufficiency in such cases encompasses

a general no-evidence review, because if some evidence

supports the verdict then the contrary evidence was not

“undisputed.” But the review does not stop there; the evidence

must also have only one logical inference. Undisputed

evidence that reasonable jurors could disbelieve has two: (1)

it is true, or (2) it is not.

[23] Most often, undisputed contrary evidence becomes

conclusive (and thus cannot be disregarded) when it concerns

physical facts that cannot be denied. Thus, no evidence

supports an impaired-access claim if it is undisputed that

access remains along 90 percent of a tract's frontage. 53

Evidence that a buyer believed a product had been repaired

is conclusively negated by an accompanying letter to

the contrary. 54 And an insured's liability has not been

determined by an “actual trial” if the insured did not appear,

present evidence, or challenge anything presented by his

opponent. 55

[24] Undisputed contrary evidence may also become

conclusive when a party admits it is true. Thus, a claimant's

admission that he was aware of a dangerous premises

condition is conclusive evidence he needed no warning about

it. 56 Similarly, an ex-employee's admission that she obtained

other employment may prove conclusively that she did not

detrimentally rely on a defendant's promise to re-hire her. 57

And jurors may not find that an indictment was based on

a defendant's misleading report when the district attorney

admits it was his own mistake. 58

[25] It is impossible to define precisely when undisputed

evidence becomes conclusive. For example, an injured

employee's return to work may prove conclusively that an

injury was not total, 59 or it may not. 60 Circumstances in

which a body is found may conclusively establish suicide, 61

or allow *816 jurors to infer otherwise. 62 Evidence is

conclusive only if reasonable people could not differ in their

conclusions, 63 a matter that depends on the facts of each

case.

[26] There is another category of conclusive evidence, in

which the evidence is disputed. Undisputed evidence and

conclusive evidence are not the same—undisputed evidence

may or may not be conclusive, and conclusive evidence may

or may not be undisputed.

Thus, for example, in Murdock v. Murdock, we found no

evidence to support a verdict establishing the defendant's

paternity when blood tests conclusively proved he was not

the child's father. 64 The evidence was directly disputed—the

child's mother testified she had conjugal relations with no one

else during the relevant time. 65 Nevertheless, we held there

was no evidence to support the paternity verdict because of

conclusive evidence to the contrary. 66

Similarly, in Texas & New Orleans Railroad Co. v. Compton,

we found no evidence that a railroad's negligence caused an

automobile to slam into the sixtieth car of a slow-moving

train. 67 Again, the evidence was hotly disputed—while

railroad witnesses testified that warning signs were in place

at the crossing, the car's driver and a passenger testified they

saw nothing, and would have been able to stop if they had. 68

Nevertheless, we held there was no evidence to support the

claim because, if the driver could not see the side of a train

before he hit it, he could not have seen a crossing sign

either. 69

Of course, there are few instances in which disputed evidence

is conclusive, and many instances in which undisputed

evidence is not. As our sister court has noted, testimony

by a paid informant is legally sufficient to support a

conviction, even if “[t]wenty nuns testify that the defendant

was with them at the time, far from the scene of the

crime ... [and] [t]wenty more nuns testify that they saw the

informant commit the crime.” 70 But a more famous clerical

hypothetical by Judge Learned Hand shows the opposite

limit:

If, however, it were proved by twenty bishops that either

party, when he used the words [in a contract], intended
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something else than the usual meaning which the law

imposes upon them, he would still be held.... 71

While jurors may generally believe either sinners or saints,

their discretion is limited when it is proved beyond question

that an “eyewitness” was actually far away in prison or totally

blind on the day of the crime.

[27] [28] Proper legal-sufficiency review prevents

reviewing courts from substituting *817 their opinions

on credibility for those of the jurors, but proper review

also prevents jurors from substituting their opinions for

undisputed truth. When evidence contrary to a verdict is

conclusive, it cannot be disregarded.

E. Clear–and–Convincing Evidence

[29] Since the time of Justice Calvert's article, new claims

and burdens of proof have arisen that require additions

to the four types of no-evidence review Justice Calvert

considered exhaustive. Beginning with the United States

Supreme Court's opinion in Jackson v. Virginia, appellate

courts have recognized that, while “one slender bit of

evidence” may be all a reviewing court needs to affirm a

verdict based on the preponderance of the evidence, a higher

burden of proof requires a higher standard of review. 72 As

we recently stated, the standard for legal sufficiency works in

tandem with the standard of review—“whenever the standard

of proof at trial is elevated, the standard of appellate review

must likewise be elevated.” 73 If the rule were otherwise,

legally sufficient evidence to support a preponderance-of-theevidence verdict would satisfy the higher burdens as well,

thus rendering their differences meaningless. 74

Accordingly, we have held that a legal sufficiency review

must consider all the evidence (not just that favoring

the verdict) in reviewing cases of parental termination, 75

defamation, 76 and punitive damages. 77 In such cases, again,

evidence contrary to a verdict cannot be disregarded.

F. Consciousness Evidence

[30] Further, we have had to particularize legal-sufficiency

review in cases involving what a party knew or why it took a

certain course, as they are not amenable to review under the

exclusive standard.

Long before gross negligence had to meet a clear-andconvincing burden, we recognized in Burk Royalty Co. v.

Walls that no-evidence review of such findings had to include

“all of the surrounding facts, circumstances, and conditions,

not just individual elements or facts.” 78 As then Chief

Justice Greenhill noted in concurring, speeding and running

a red light may not be legally sufficient evidence of gross

negligence if one's wife and daughter are bleeding to death

in the back seat. 79 Reviewing courts assessing evidence of

conscious indifference cannot disregard part of what a party

was conscious of. 80

For the same reasons, the exclusive standard of review has

proven problematic in insurance bad-faith cases. Liability

in *818 such cases requires proof that the insurer denied

coverage after it became reasonably clear. 81 But that

standard will always be met if reviewing courts must

disregard any evidence that coverage was unclear. 82

Subsequent cases show that reviewing courts are in fact

looking at all the evidence to determine whether coverage was

reasonably clear. 83

This problem arises in other contexts as well. In

discrimination cases, discharged employees will never have

to prove that the reason given for termination was a

pretext if no-evidence review must disregard that reason. 84

Government officials will never be entitled to immunity

if we consider only evidence suggesting they should have

acted differently. 85 And limitations will never run under the

discovery rule if reviewing courts must disregard all evidence

that claimants knew of their claims. 86

This is not to say a reviewing court may credit a losing party's

explanations or excuses if jurors could disregard them. For

example, while an insurer's reliance on an expert report may

foreclose bad faith recovery, 87 it will not do so if the insurer

had some reason to doubt the report. 88 But a reviewing court

cannot review whether jurors could reasonably disregard a

losing party's explanations or excuses without considering

what they were.

III. Contrary Evidence That Must Be Disregarded
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As trials normally focus on issues that jurors could decide

either way, reviewing *819 courts must disregard evidence

contrary to the verdict far more often than they must consider

it. Just as no-evidence review that starts by disregarding

contrary evidence often must end up considering considerably

more, no-evidence review that begins by considering all the

evidence must usually end up considering considerably less.

Again, we do not presume to categorize all circumstances in

which contrary evidence must be disregarded; a few examples

serve to demonstrate that even under the inclusive standard,

viewing all the evidence in a light favorable to the verdict

often requires that much of it be disregarded.

A. Credibility Evidence

[31] [32] Jurors are the sole judges of the credibility of

the witnesses and the weight to give their testimony. 89 They

may choose to believe one witness and disbelieve another. 90

Reviewing courts cannot impose their own opinions to the

contrary. 91

[33] Most credibility questions are implicit rather than

explicit in a jury's verdict. Thus, reviewing courts must

assume jurors decided all of them in favor of the verdict if

reasonable human beings could do so. Courts reviewing all

the evidence in a light favorable to the verdict thus assume

that jurors credited testimony favorable to the verdict and

disbelieved testimony contrary to it. 92

For example, viewing the evidence in the light favorable to

the verdict means that if both parties in a traffic accident

testify they had the green light, an appellate court must

presume the prevailing party did and the losing party did

not. If the parties to an oral contract testify to conflicting

terms, a reviewing court must presume the terms were those

asserted by the winner. When all the evidence is viewed in

the light most favorable to the jury verdict, some of it must be

completely discounted. Though not disregarded at the outset,

the end result is the same.

This has always been our practice in cases using the inclusive

scope of review. Thus, we have concluded that a bailee

sold cotton without the bailor's consent, despite the former's

denials, because the jury verdict favored the latter. 93 And we

have affirmed a gross negligence verdict based on testimony

that the defendant's speed was 80 miles per hour, without

mentioning his own testimony to a speed half that. 94

[34] [35] Nor is it necessary to have testimony

from both parties before jurors *820 may disbelieve

either. Jurors may disregard even uncontradicted and

unimpeached testimony from disinterested witnesses. 95

Thus, an architect's uncontradicted testimony that he relied

on a 20–year warranty was not binding on jurors when the

bid specifications he prepared included only much shorter

warranties. 96 Nor was an insured's uncontradicted testimony

about lost furnishings binding on jurors when the fire scene

contained several indications of arson but few of burnt

furniture. 97 Even uncontroverted expert testimony does not

bind jurors unless the subject matter is one for experts

alone. 98

[36] [37] [38] [39] Of course, “[t]he jury's

decisions regarding credibility must be reasonable.” 99

Jurors cannot ignore undisputed testimony that is clear,

positive, direct, otherwise credible, free from contradictions

and inconsistencies, and could have been readily

controverted. 100 And as noted above, they are not free to

believe testimony that is conclusively negated by undisputed

facts. But whenever reasonable jurors could decide what

testimony to discard, a reviewing court must assume they did

so in favor of their verdict, and disregard it in the course of

legal sufficiency review.

B. Conflicting Evidence

[40] [41] It is the province of the jury to resolve conflicts

in the evidence. 101 Accordingly, courts reviewing all the

evidence in a light favorable to the verdict must assume

that jurors resolved all conflicts in accordance with that

verdict. 102

Again, this has always been the case even in those cases

using the inclusive scope of review. For example, in such

cases we have sometimes detailed only the evidence that

supported a jury's fraud finding. 103 We have affirmed a

bad-faith verdict for legal sufficiency despite “significant

evidence” that the insurer acted in *821 good faith. 104 We

have found some evidence of lost profits, even though income

tax returns showed the contrary. 105 And we have affirmed
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a jury's negligence finding despite a defendant's evidence

asserting it could not have prevented the accident. 106

In none of these cases did we state that the scope of review

required us to disregard evidence contrary to the verdict;

instead, we started by considering the entire record in each.

But in each case we either discounted or never mentioned

conflicting evidence contrary to the verdict because viewing

the evidence in the light favorable to the verdict required us

to do so.

Of course, it is not always clear whether evidence is

conflicting. Evidence is not conflicting just because the

parties cannot agree to it. For example, evidence that a

hospital controlled a doctor's rotation and patient assignments

raises no material conflict with evidence that a different

entity controlled the details of medical treatment, as only

the latter is material in a malpractice case. 107 Similarly,

evidence showing the terms of one loan does not conflict

with undisputed evidence that the parties never reached an

agreement regarding the terms of another. 108

[42] But in every circumstance in which reasonable jurors

could resolve conflicting evidence either way, reviewing

courts must presume they did so in favor of the prevailing

party, and disregard the conflicting evidence in their legal

sufficiency review.

C. Conflicting Inferences

[43] Even if evidence is undisputed, it is the province of

the jury to draw from it whatever inferences they wish, so

long as more than one is possible and the jury must not

simply guess. Thus, in product liability cases jurors may find

evidence of a defect from subsequent modifications, even

if there were plenty of other reasons for the changes. 109

Even if a defendant admits approaching an intersection from

the wrong way on a one-way street, jurors may infer the

plaintiff failed to keep a proper lookout, as that is one possible

inference from the accident itself. 110 Similarly, jurors may

infer that relatives tore down posters of a missing child to

assist the child's father, even though another inference was

that the signs simply embarrassed them. 111

[44] Accordingly, courts reviewing all the evidence in a

light favorable to the verdict must assume jurors made all

inferences in favor of their verdict if reasonable minds could,

and disregard all other inferences in their legal sufficiency

review.

IV. Reconciling the Standards

[45] Having noted the dual lines of authority stating the

scope of no-evidence review, and the proper application and

exceptions to each, we turn to the question of which one is

correct. For the reasons *822 discussed below, we believe

the answer is both.

A. Goals: The Standards Must Be The Same

[46] Whether a court begins by reviewing all the evidence

or disregarding part in a legal-sufficiency review, there can

be no disagreement about where that review should end. If

the evidence at trial would enable reasonable and fair-minded

people to differ in their conclusions, then jurors must be

allowed to do so. 112 A reviewing court cannot substitute its

judgment for that of the trier-of-fact, so long as the evidence

falls within this zone of reasonable disagreement. 113

[47] Similarly, there is no disagreement about how a

reviewing court should view evidence in the process of that

review. Whether a reviewing court starts with all or only part

of the record, the court must consider evidence in the light

most favorable to the verdict, and indulge every reasonable

inference that would support it. 114 But if the evidence allows

of only one inference, neither jurors nor the reviewing court

may disregard it. 115

Given these premises, it is no coincidence that the two

standards should reach the same result—indeed they must.

Any scope of appellate review smaller than what reasonable

jurors could believe will reverse some verdicts that are

perfectly reasonable; any scope of review larger than what

reasonable jurors could believe will affirm some verdicts that

are not.

[48] Further, the two must coincide if this Court is to

perform its constitutional duties. Although factual sufficiency

has been the sole domain of the intermediate appellate courts

in Texas since 1891, our jurisdiction has always included

legal sufficiency, as that is a question of law, not of fact. 116

Construing either standard to require us to do less would be
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just as unconstitutional as construing either to allow us to do

more.

This is not to say judges and lawyers will always agree

whether evidence is legally *823 sufficient. As discussed

more fully below, reasonable people may disagree about

what reasonable jurors could or must believe. But once those

boundaries are settled, any standard of review must coincide

with those boundaries—affirming jury verdicts based on

evidence within them and reversing jury verdicts based on

evidence that is not. Any standard that does otherwise is

improperly applied.

B. Other Motions: The Standards Must Be The Same

[49] Just as the scope of no-evidence review must coincide

with its goals, the scope of review should not depend upon the

motion in which it is asserted. Judgment without or against

a jury verdict is proper at any course of the proceedings

only when the law does not allow reasonable jurors to

decide otherwise. Accordingly, the test for legal sufficiency

should be the same for summary judgments, directed verdicts,

judgments notwithstanding the verdict, and appellate noevidence review.

Our statements of the standard for reviewing a directed

verdict present the same mixed bag found with general noevidence review. We have most often used the exclusive

standard, stating that courts reviewing directed verdicts must

consider only evidence supporting the nonmovant's case

and disregard all contrary evidence. 117 But we have also

stated that reviewing courts should use the inclusive standard,

considering all the evidence in a light contrary to the directed

verdict. 118 And we have sometimes stated both, requiring

reviewing courts to consider all the evidence in a light

contrary to the directed verdict and then to disregard all

conflicting evidence that supports it. 119

By contrast, cases concerning judgments non obstante

veredicto most often utilize the inclusive scope of review.

Beginning with the 1931 amendment authorizing trial judges

to grant them, 120 we have generally reviewed such orders

by considering all the evidence in a light favorable to the

*824 verdict that was set aside. 121 In later years we

have sometimes adopted the exclusive standard, 122 but our

opinions doing so usually cite to general no-evidence cases in

which no judgment n.o.v. was involved. 123

The one exception in which both standards do not expressly

appear is in the scope of review for summary judgments.

Here, there is only one standard—a reviewing court must

examine the entire record in the light most favorable to

the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion. 124 Reviewing

courts do not disregard the evidence supporting the motion;

*825 if they did, all summary judgments would be reversed.

In practice, however, a different scope of review applies

when a summary judgment motion is filed without supporting

evidence. 125 In such cases, evidence supporting the motion

is effectively disregarded because there is none; under the

rule, it is not allowed. Thus, although a reviewing court must

consider all the summary judgment evidence on file, in some

cases that review will effectively be restricted to the evidence

contrary to the motion.

The standards for taking any case from the jury should be the

same, no matter what motion is used. If only one standard

were proper, we would not expect both to appear in cases

reviewing directed verdicts, judgments notwithstanding the

verdict, and summary judgments. But both do.

C. Federal Courts: The Standards Are The Same

The federal courts have had a similar split of authority

between the inclusive and exclusive standards for scope

of review. But no longer—the United States Supreme

Court recently concluded in Reeves v. Sanderson Plumbing

Products, Inc. that the two tests are the same. 126

Under Rule 50 of the federal rules of procedure, a court should

render judgment as a matter of law when “there is no legally

sufficient evidentiary basis for a reasonable jury to find for

that party on that issue.” 127 In deciding whether all or only

part of the evidence should be considered, the Supreme Court

stated:

The Courts of Appeals have articulated differing

formulations as to what evidence a court is to consider in

ruling on a Rule 50 motion. Some decisions have stated

that review is limited to that evidence favorable to the
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nonmoving party, while most have held that review extends

to the entire record, drawing all reasonable inferences in

favor of the nonmovant.

On closer examination, this conflict seems more

semantic than real. Those decisions holding that review

under Rule 50 should be limited to evidence favorable to

the nonmovant appear to have their genesis in Wilkerson

v. McCarthy 128 . In Wilkerson, we stated that “in passing

upon whether there is sufficient evidence to submit an

issue to the jury we need look only to the evidence and

reasonable inferences which tend to support the case

of” the nonmoving party. 129 But subsequent decisions

have clarified that this passage was referring to the

evidence to which the trial court should give credence,

not the evidence that the court should review. In the

analogous context of summary judgment under Rule 56,

we have stated that the court must review the record

“taken as a whole.” And the standard for granting

summary judgment “mirrors” the standard for judgment

as a matter of law, such that “the inquiry under each is the

same.” It therefore follows that, in entertaining a motion

for judgment as a *826 matter of law, the court should

review all of the evidence in the record. 130

We address the Supreme Court's conclusion as to the

most appropriate standard below; the relevant point here

is its conclusion that differences between the inclusive and

exclusive standards are more semantic than real.

D. Objections: The Standards Are Not The Same

While we have used the two standards for the scope of review

interchangeably for many years in many different contexts,

several arguments suggest they are not the same.

First, the courts of appeals often use the two standards

in illustrations of the difference between legal and factual

sufficiency, with the exclusive standard tied to the former and

the inclusive standard to the latter:

When [reviewing] legal sufficiency,

we consider only the evidence and

inferences that tend to support the

award of damages and disregard

all evidence and inferences to the

contrary.... When we review factual

sufficiency, we consider and weigh

all of the evidence and will set aside

the verdict only if it is so against the

great weight and preponderance of the

evidence that it is clearly wrong and

unjust. 131

But there have always been exceptions to this distinction. 132

As demonstrated in Parts II and III above, it is generally

true that the result of legal-sufficiency review is to disregard

contrary evidence, but there are exceptions when a reviewing

court cannot. It is not surprising that in drawing the general

distinction between legal and factual sufficiency, courts

have not complicated that distinction by listing the several

exceptions in which the scope of review—though not the

standard of review—may overlap.

Second, it has been argued that the exclusive standard “is

an important prophylactic” against invasion of the jury's

province, as appellate judges are less likely to consider

contrary evidence when they should not if the exclusive

standard is used. 133 But if that is true, the opposite should

also be the case—appellate courts are less likely to consider

contrary evidence when they must (as shown in Part II) if the

exclusive standard is used. No matter which standard is used,

appellate courts must take care not to consider or disregard

too little or too much.

*827 Conversely, several factors appear to favor application

of the inclusive standard. First, when we have said “we

must look only at that evidence which tends to support the

judgment,” 134 we could not have been speaking literally;

no glasses filter evidence, and judges cannot abandon such

judgments to law clerks or litigants. It is often hard to

say whether evidence does or does not support a verdict

—the same facts may support different conclusions, 135 or

may support one part of a verdict but not another. 136 Nor

can evidence supporting a verdict be identified by which

party offered it—parties depend on admissions and crossexamination during their opponent's case, and minimize

damaging evidence by presenting it during their own. As a

practical matter, a court cannot begin to say what evidence

supports a verdict without reviewing it all.

Second, an appellate court that begins by disregarding one

party's evidence may strike many citizens as extending

something less than justice for all. Concerns about open

government and open courts suggest an appellate process

that considers all the evidence, though deferring to the jury's

verdict. While there is some dispute whether Lady Justice
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should wear a blindfold, 137 the metaphor was surely never

intended to suggest that justice disregards the facts.

In sum, the exclusive standard is helpful in recognizing

the distinctive roles of judge and jury, intermediate and

supreme court. By contrast, the inclusive standard is helpful

in recognizing what courts actually do, and must be seen to

do. Both are important; we should avoid choosing between

them if we can.

E. Conclusion: The Standards Are The Same

As both the inclusive and exclusive standards for the scope

of legal-sufficiency review have a long history in Texas, as

both have been used in other contexts to review matter-of-law

motions, as the federal courts have decided the differences

between the two are more semantic than real, and as both—

properly applied—must arrive at the same result, we see no

compelling reason to choose among them.

[50] [51] The key qualifier, of course, is “properly

applied.” The final test for legal sufficiency must always

be whether the evidence at trial would enable reasonable

and fair-minded people to reach the verdict under review.

Whether a reviewing court begins by considering all the

evidence or only the evidence supporting the verdict, legalsufficiency review in the proper light must credit favorable

evidence if reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not.

While judges and lawyers often disagree about legal

sufficiency in particular cases, *828 the disagreements are

almost always about what evidence jurors can or must credit

and what inferences they can or must make. It is inevitable

in human affairs that reasonable people sometimes disagree;

thus, it is also inevitable that they will sometimes disagree

about what reasonable people can disagree about. This is not

a new problem; Justice Calvert noted it almost fifty years ago:

The rule as generally stated is that if

reasonable minds cannot differ from

the conclusion that the evidence lacks

probative force it will be held to be

the legal equivalent of no evidence.

The application of the rule can lead

to strange results. It is theoretically

possible, and sometimes not far from

actual fact, that five members of the

Supreme Court will conclude that the

evidence supporting a finding of a

vital fact has no probative force, and

in reaching the conclusion through

application of the rule will thus hold,

in effect, that the trial judge who

overruled a motion for instructed

verdict, the twelve jurors who found

the existence of the vital fact, the three

justices of the Court of Civil Appeals

who overruled a “no evidence” point

of error and four dissenting justices of

the Supreme Court are not men 138 of

“reasonable minds.” 139

It is not hubris that occasionally requires an appellate court

to find a jury verdict has no reasonable evidentiary basis. As

Justice Frankfurter stated long ago:

Only an incompetent or a wilful judge

would take a case from the jury

when the issue should be left to the

jury. But since questions of negligence

are questions of degree, often very

nice differences of degree, judges of

competence and conscience have in

the past, and will in the future, disagree

whether proof in a case is sufficient

to demand submission to the jury. The

fact that [one] thinks there was enough

to leave the case to the jury does not

indicate that the other [is] unmindful

of the jury's function. The easy but

timid way out for a trial judge is to

leave all cases tried to a jury for jury

determination, but in so doing he fails

in his duty to take a case from the jury

when the evidence would not warrant

a verdict by it. A timid judge, like a

biased judge, is intrinsically a lawless

judge. 140

V. Application to the Facts

It remains to apply the scope of review to the facts presented.
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[52] A majority of the court of appeals affirmed the verdict

for the Wilsons, finding legally sufficient evidence that the

City knew increased flooding on the Wilsons' property was

substantially certain to occur. 141 The majority pointed to

the following proof. First, the Wilsons' expert testified that

the revised plan was certain to *829 create flooding. 142

Second, as the City admittedly knew that development would

increase runoff and the Sebastian ditch would channel it

toward the Wilsons, so it knew “with absolute certainty”

that flooding would be the result. 143 Third, the City “did

not explain” why the Master Plan required a drainage ditch

across the Wilsons' property but the revised plan did not,

thus allowing jurors to infer that the City knew this omission

would cause flooding. 144

[53] Of course, the City did explain why it approved the new

plan—because three sets of engineers said the omitted ditch

was unnecessary—but the court felt compelled by the scope

of review to disregard that evidence.

For several of the reasons stated earlier, we believe the court

of appeals did not properly apply the scope of review. The

critical question in this case was the City's state of mind—

the Wilsons had to prove the City knew (not should have

known) that flooding was substantially certain. A reviewing

court cannot evaluate what the City knew by disregarding

most of what it was told.

[54] Moreover, when a case involves scientific or technical

issues requiring expert advice (as this one does), jurors cannot

disregard a party's reliance on experts hired for that very

purpose without some evidence supplying a reasonable basis

for doing so. 145 Here, it was uncontroverted that three sets of

engineers certified that the revised plans met the City's codes

and regulations—and thus would not increase downstream

flooding. The same firm that drew up the original Master Plan

certified the revised one; unless the City had some reason to

know the first certification was true and the second one was

false (of which there was no evidence), there was only one

logical inference jurors could draw.

None of the evidence cited by the court of appeals showed

the City knew more than it was told by the engineers. The

Wilsons' expert testified that flooding was (in his opinion)

inevitable, but not that the City knew it was inevitable. The

Wilsons' expert gave no opinion on the latter point.

Second, ending a ditch at a neighbor's property line may

be evidence that a defendant was substantially certain of

the result in some cases, but not in the context of this

one. City witnesses admitted knowing development would

increase runoff at the head of this drainage system, but not

flooding at its foot. Calculating the effect of detention ponds

and absorption in a grassy drainage ditch forty-five feet

wide and over two hundred yards long required hydrological

formulas, computer models, and mathematical calculations.

The omission of the ditch across the Wilsons' property

obviously raised concerns that the City investigated, but was

no evidence that the City knew the advice it received in

response was wrong.

The Wilsons also point to a letter Sebastian's attorney wrote

the City demanding indemnity in case the new ditch flooded

the Wilsons. But attorneys must protect a client from potential

liability whether it is *830 real or imagined—and justly so.

In the letter, the attorney never purports to be an expert in

hydrology, or cite the opinions of anyone who was. This letter

may have required the City to investigate, but again is no

evidence it knew the advice it received was wrong. 146

Our concurring colleagues believe reasonable jurors could

nevertheless disregard what all the engineers certified

because the City had a financial incentive to believe them

rather than pay the Wilsons. Of course, defendants have a

financial incentive to avoid paying damages in every case;

if that incentive alone is some evidence of liability, then

plaintiffs create enough evidence to go to the jury every time

they file suit.

But more important, this ignores what the Wilsons had to

prove—not that the City might have disbelieved the engineers'

reports, but that it did. This requires evidence of “objective

indicia of intent” showing the City knew identifiable harm

was occurring or substantially certain to result. 147 Jurors'

doubts about the engineers' reports or the City's motives could

not supply them with objective indicia that the City knew

flooding would occur. Constitutional concerns about the roles

of judge and jury do not allow either to make such evidence

up.

We agree with the court of appeals that the Wilsons presented

some evidence that the City damaged their property, and that

in drawing up and approving drainage plans it was acting

for a public purpose. The missing piece in the evidence

here is proof that the City knew the plans it approved were

substantially certain to increase flooding on the Wilsons'
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properties. While the City certainly knew that fact after the

flooding started, the Wilsons never pleaded or submitted

to the jury any takings theory other than the City's initial

approval.

Crediting all favorable evidence that reasonable jurors could

believe and disregarding all contrary evidence except that

which they could not ignore, we hold there was no evidence

the City's approval of the revised drainage plan was an

intentional taking.

Accordingly, we reverse the court of appeals' judgment

against the City under article I, section 17 of the Texas

Constitution. Because the court of appeals declined to address

the jury's alternate verdict for the Wilsons on a claim under

the Texas Water Code, we remand the case to that court to

determine that issue.

Justice O'NEILL filed a concurring opinion in which Justice

MEDINA joined.

Justice JOHNSON did not participate in the decision.

Justice O'NEILL, joined by Justice MEDINA, concurring.

The Court does an excellent job of explaining the appropriate

scope of no-evidence review: the reviewing court “must

view the evidence in the light favorable to the verdict,

crediting favorable evidence if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could

not.” 168 S.W.3d at 807. I agree with this standard and join

Parts I through IV of the Court's opinion. But I cannot join

Part V, because the Court misapplies the standard that it so

carefully *831 articulates by crediting evidence the jury

could reasonably disregard.

The City of Keller's Master Drainage Plan required it

in part to condemn a 2.8–acre drainage easement on the

Wilson property for construction of an earthen channel

forty-five feet wide and five feet deep that would funnel

water from the adjoining Sebastian property over the

Wilson property into the Little Bear Creek Watershed. The

City chose not to proceed with this portion of the plan,

though, claiming reliance on engineers' assurances that the

developers' installation of retention ponds on neighboring

land could prevent flooding. The drainage channel that was

actually built ended at the edge of the Sebastian property and

funneled water directly onto the Wilsons' land, destroying

eight acres of farmland worth almost $300,000. The Court

holds that the jury was required to believe the City's testimony

that it relied on the engineers' assurances and thus did not

know flooding was substantially certain to occur, stating

that when a case requires expert testimony “jurors cannot

disregard a party's reliance on experts hired for that very

purpose without some evidence supplying a reasonable basis

for doing so.” 168 S.W.3d at 829. Even if this were an

appropriate review standard—which it hasn't been until today

—I believe the jury had a reasonable basis upon which

to disregard the City's professed reliance; the City had a

financial incentive to disclaim knowledge of the flooding,

and the Wilsons presented some evidence that the City had

independent knowledge flooding was substantially certain to

occur. In my view, the jury was the proper body to weigh the

witnesses' credibility and resolve these disputed fact issues. I

nevertheless agree that the City cannot be liable for a taking in

this case because I believe that a city's mere act of approving a

private development plan cannot constitute a taking for public

use. Accordingly, I concur in the Court's judgment but not its

reasoning.

I

Questions of intent are generally proved only by

circumstantial evidence; as the court of appeals in this

case aptly noted, “defendants will rarely admit knowing

to a substantial certainty that given results would follow

from their actions,” and therefore the jury must be “free to

discredit defendants' protestations that no harm was intended

and to draw inferences necessary to establish intent.” 86

S.W.3d 693, 704. I agree with the Court that the jury's

ability to disbelieve the City's protestations is not itself

“evidence of liability.” 168 S.W.3d at 830. Instead, the jury's

ability to weigh the witnesses' credibility means that the

City's testimony did not conclusively establish its lack of

liability. Because liability is not conclusively negated, we

must examine the record to see if there is legally sufficient

evidence from which the jury could infer that the City knew

flooding was substantially certain to occur. I would hold that

the evidence of intent that was presented in this case allowed

the jury to draw such an inference.

At trial, the Wilsons presented evidence that the City

had independent sources of knowledge that flooding was

substantially certain to occur. First, they demonstrated that

the developers' plan itself was flawed. Rather than incorporate

a drainage ditch running across the Wilson property, as the

City's Master Plan required, the developers' plan ended the
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drainage ditch abruptly at the edge of the Wilson property.

The Wilsons' expert testified that the plan's implementation

would necessarily “increase the volume and flow of water

across the Wilson property from the rate of fifty-five cubic

feet per second to ninety-three cubic feet per second.” *832

86 S.W.3d at 703. Second, the City was aware that water

flowed across the Wilson property before the development

commenced, and, as the court of appeals pointed out, the

City's Director of Public Works admitted that the City knew

the development would increase the water's flow and velocity;

specifically, he testified that “the City knew the upstream

water would be absorbed less and would flow faster due to

the removal of trees and vegetation from the developments

and from the forty-five-foot-wide earthen channel” that ended

at the Wilson property's edge. Id. at 705. Finally, there

was evidence that the City received a letter warning that

the developers' plan would subject the Wilson property to

flooding.

While I believe there is some evidence that the City knew

flooding was substantially certain to occur, there is also

some evidence that it did not. City officials testified that

they relied on the representations of engineers who assured

them retention ponds could substitute for a drainage easement

and the Wilson property would not be damaged. If the jury

accepted this evidence as true, I agree that the intent element

would be negated, which would preclude the City's takings

liability. But I do not agree that the jury was bound to

accept the City's testimony as true. The Court itself notes

that jurors “may choose to believe one witness and disbelieve

another,” and that “[c]ourts reviewing all the evidence in a

light favorable to the verdict thus assume that jurors credited

testimony favorable to the verdict and disbelieved testimony

contrary to it.” 168 S.W.3d at 819. This statement mirrors our

prior jurisprudence, which has long provided that a jury “has

several alternatives available when presented with conflicting

evidence” because it “may believe one witness and disbelieve

others,” “may resolve inconsistencies in the testimony of any

witness,” and “may accept lay testimony over that of experts.”

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986)

(citations omitted).

As the Court itself states, jurors are required to credit

undisputed testimony only when it is “clear, positive,

direct, otherwise credible, free from contradictions and

inconsistencies, and could have been readily controverted.”

168 S.W.3d at 820. The City's testimony does not meet this

standard. The City Manager did testify that the City “would

not have approved the developments unless [it was] assured

that the developments did not increase the velocity of water

or the flow of water” onto the neighboring property. 86

S.W.3d at 706. But the Wilsons disputed whether the City's

protestations were credible, pointing out that the City had a

powerful incentive to profess a lack of knowledge through

reliance on the engineers' assurances because it would then

avoid the considerable expense of compensating the Wilsons

for the property that would otherwise have been condemned

under the Master Drainage Plan. See id. at 705.

Moreover, the Court's conclusion that juries cannot disregard

a party's reliance on expert opinions is not consistent with our

jurisprudence. The Court cites two cases for this proposition,

but neither supports the Court's analysis; instead, both cases

support the conclusion that the jury, as the finder of fact,

should appropriately resolve factual disputes regarding a

party's reliance on hired experts. Provident Am. Ins. Co. v.

Castañeda, 988 S.W.2d 189, 194–95 (Tex.1998); State Farm

Lloyds v. Nicolau, 951 S.W.2d 444, 448–50 (Tex.1997).

In Castañeda, a bad-faith insurance case, there was no

question that the insurer had relied on an expert's assurances

and thus no dispute about whether the *833 jury could

have disregarded that evidence. Castañeda, 988 S.W.2d

at 194–95. In that case, we performed a traditional legal

sufficiency analysis and concluded there was no evidence that

the defendant acted in bad faith. Id. at 194. We did state that

reliance on an expert's opinion will not preclude a finding

of bad faith if the expert's opinion was “unreliable and the

insurer knew or should have known that to be the case.” Id.

However, we did not hold that the jury must credit a party's

testimony that it relied on an expert.

We reiterated this point in Nicolau, another bad-faith

insurance case. There, the Court noted “we have never held

that the mere fact that an insurer relies upon an expert's report

to deny a claim automatically forecloses bad faith recovery as

a matter of law,” and again concluded that purported “reliance

upon an expert's report, standing alone, will not necessarily

shield” the defendant from liability. Nicolau, 951 S.W.2d at

448. The Court conceded that “[w]ere we the trier of fact in

this case, we may well have concluded that [the insurer] did

not act in bad faith,” but concluded that the “determination is

not ours to make” because “the Constitution allocates that task

to the jury and prohibits us from reweighing the evidence.”

Id. at 450 (citing TEX. CONST. art. I, § 15, art. V, §§ 6, 10).

The same is true in this case. The jury was not required to

believe that the City did not know flooding was substantially
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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certain to occur because it relied on assurances to the

contrary; as a reviewing Court, we should “assume that jurors

credited testimony favorable to the verdict and disbelieved

testimony contrary to it.” 168 S.W.3d at 819. Such credibility

determinations are uniquely suited and constitutionally

committed to the fact finder. See TEX. CONST. art. I, § 15,

art. V, § 6; see also Nicolau, 951 S.W.2d at 450.

II

Although I disagree with the Court's conclusion that the jury

was required to credit the City's testimony, I agree with

its judgment in the City's favor because, in my view, the

City's mere approval of the private development plans did not

result in a taking for public use, as the constitutional standard

requires for a compensable taking. TEX. CONST. art. I, §

17. The City did not appropriate or even regulate the use

of the Wilsons' land, nor did it design the drainage plan for

the proposed subdivisions. Instead, the City merely approved

subdivision plans designed by private developers, and that

design included inadequate drainage capabilities. The City

argues, and I agree, that its mere approval of private plans did

not transfer responsibility for the content of those plans from

the developers to the City. Municipalities review subdivision

plats “to ensure that subdivisions are safely constructed and

to promote the orderly development of the community.” City

of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex.1985);

see TEX. LOC. GOV'T CODE § 212.002. Such a review

is intended to protect the city's residents; it is not intended

to transfer responsibility for a flawed subdivision design

from the developers to the municipality. See, e.g., City of

Round Rock, 687 S.W.2d at 302; see also Cootey v. Sun

Inv., Inc., 68 Haw. 480, 718 P.2d 1086, 1091 (1986) (holding

that “[t]he permit process by which the County approves

or disapproves the development of a proposed subdivision

reflects an effort by government to require the developer

to meet his responsibilities under the subdivision rules,

regulations, and laws,” and that “the primary responsibility of

providing an adequate and safe development rests with ... the

developer, and not with the County”).

Because the primary responsibility for a development's design

rests with the developer, *834 and because the platapproval process does not transfer such responsibility to the

municipality, mere plat approval cannot be a basis upon

which to predicate takings liability. We have held that, to

be liable for a taking, a governmental entity must “perform

certain acts in the exercise of its lawful authority ... which

resulted in the taking or damaging of plaintiffs' property,

and which acts were the proximate cause of the taking or

damaging of such property.” State v. Hale, 136 Tex. 29,

146 S.W.2d 731, 736 (1941) (emphasis added). In this case,

flooding resulted from the developers' defective drainage

design, not from the City's approval of the plat; thus, the City's

approval was not the proximate cause of the damage to the

Wilson property.

Other courts, faced with similar facts, have also concluded

that a governmental entity cannot be liable for a taking

when its only action is to approve a private development

plan. See Phillips v. King County, 136 Wash.2d 946, 968

P.2d 871, 879 (1998); see also Pepper v. J.J. Welcome

Constr. Co., 73 Wash.App. 523, 871 P.2d 601, 606 (1994).

In Phillips, the Washington Supreme Court observed that

there is no public aspect to a private development and

concluded that “[i]f the county or city were liable for the

negligence of a private developer, based on approval under

existing regulations, then the municipalities, and ultimately

the taxpayers, would become the guarantors or insurers for the

actions of private developers whose development damages

neighboring properties.” Phillips, 968 P.2d at 878. The court

in Pepper similarly examined an inverse condemnation claim

based upon a county's approval of private developments with

defective drainage plans; it, too, concluded that the county's

approval did not cause the resultant flooding and did not

result in an unconstitutional taking. Pepper, 871 P.2d at 606.

The court noted that the flooding was “not the result of the

County appropriating or regulating their use of the land,” and

held that “[t]he fact that a county regulates development and

requires compliance with road and drainage restrictions does

not transform a private development into a public project.”

Id. The court concluded that because “land use regulation

of [the plaintiffs'] property did not cause the damages, no

inverse condemnation was involved.” Id. I am persuaded by

the reasoning of the courts in Phillips and Pepper, and would

similarly conclude that the City's plat approval in this case did

not amount to an unconstitutional taking as a matter of law.

The court of appeals in this case advanced an alternative

reason for affirming the trial court's judgment, suggesting that

even if the City could not be liable for merely approving

a subdivision plat, it could nevertheless be held liable for

failing to condemn a drainage easement across the Wilson

property. 86 S.W.3d at 707. The court of appeals stated

that “the City chose not to condemn any of the Wilson

property,” but instead “allow[ed] the water flowing from

the Sebastian easement to discharge, uncontrolled, across the
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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Wilson property.” Id. As noted above, however, it was the

developers' plan—not the City's actions—that allowed the

water to flood the Wilson property. Because the City's action

did not cause the flooding, I disagree that the City's failure

to condemn an easement is relevant to takings liability. If

the City were responsible for the flooding but chose not

to condemn the property, it might be subject to inversecondemnation liability. See Tarrant County Reg'l Water Dist.

v. Gragg, 151 S.W.3d 546, 554 (Tex.2004) (“When the

government takes private property without first paying for it,

the owner may recover damages for inverse condemnation.”).

However, if a governmental entity's actions are not the *835

“proximate cause of the taking or damaging” of the property,

then the entity cannot be liable for a taking. Hale, 146 S.W.2d

at 736. Accordingly, the entity need not condemn property

merely because a private entity is causing damage. This rule

does not leave owners of flooded property without a remedy;

when a private development floods neighboring land, the

owner of the damaged property will ordinarily have recourse

against the private parties causing the damage. See TEX.

WATER CODE § 11.086(a), (b) (providing that “[n]o person

may divert or impound the natural flow of surface waters in

this state ... in a manner that damages the property of another

by the overflow of the water diverted or impounded” and that

“[a] person whose property is injured by an overflow of water

caused by an unlawful diversion or impounding has remedies

at law and in equity and may recover damages occasioned

by the overflow”). Because the developers' design of the plat

—not the City's approval—caused the flooding damage in

this case, I would hold that the City cannot be held liable for

an unconstitutional taking under Article I, Section 17 of the

Texas Constitution.

III

Because I believe the Court fails to give due regard to the

jury's right to make credibility determinations, I cannot join

Part V of the Court's opinion. But because I conclude that

the City's mere act of approving a private development plan

did not cause the Wilson property to be “taken, damaged or

destroyed for or applied to public use,” TEX. CONST. art. I,

§ 17, I agree that the City cannot be held liable for a taking in

this case. Accordingly, I concur in the Court's judgment.

All Citations

168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848

Footnotes

1 The City of Fort Worth asserts in an amicus brief that in 2001 alone it approved 325 subdivision plats creating 5,857

residential lots within its extraterritorial jurisdiction, which of course excludes surrounding communities.

2 Evidence at trial and briefs by amici indicate that cities normally acquire title to these easements to ensure they are

properly mowed and maintained after the developers' departure.

3 TEX. CONST. art. I, § 17; City of Dallas v. Jennings, 142 S.W.3d 310, 313–14 (Tex.2004).

4 86 S.W.3d 693, 715, 717.

5 Id. at 700.

6 See, e.g., Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003) (per curiam); Bradford v. Vento, 48 S.W.3d

749, 754 (Tex.2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.2000); Wal–Mart Stores, Inc. v. Gonzalez, 968

S.W.2d 934, 936 (Tex.1998); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Burroughs Wellcome

Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993); Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992); Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Havner

v. E–Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990);

Burkard v. ASCO Co., 779 S.W.2d 805, 806 (Tex.1989) (per curiam); Brown v. Edwards Transfer Co., 764 S.W.2d 220,

223 (Tex.1988); City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987); King v. Bauer, 688 S.W.2d 845, 846

(Tex.1985); Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex.1984); Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400,

401 (Tex.1981) (per curiam); Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Garza v. Alviar, 395 S.W.2d 821, 823

(Tex.1965); Wininger v. Ft. Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912).

7 See, e.g., St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Associated Indem. Corp. v. CAT

Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex.1998); State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40

(Tex.1998); Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262

(Tex.1983); Burk Royalty v. Walls, 616 S.W.2d 911, 922 (Tex.1981); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970);
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

48 Tex. Sup. Ct. J. 848

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De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 97 (1955); Hall v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d

497, 498 (1952).

8 Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Bostrom Seating, Inc. v. Crane Carrier Co., 140

S.W.3d 681, 684 (Tex.2004); Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); La.-Pac. Corp. v. Andrade,

19 S.W.3d 245, 247 (Tex.1999); Latham v. Castillo, 972 S.W.2d 66, 68 (Tex.1998); Brown v. Bank of Galveston, Nat'l

Ass'n, 963 S.W.2d 511, 513 (Tex.1998).

9 See, e.g., Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Szczepanik v. First

S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam); compare Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303

S.W.2d 359, 363 (1957) (“We may consider only that evidence, if any, which, viewed in its most favorable light, supports

the jury findings, and we must disregard all evidence which would lead to a contrary result.”) (emphasis added), with

Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 298 S.W.2d 79, 81 (1956) (“[T]he duty of this Court [is] to examine and

consider all of the evidence bearing on the controlling issues, and having done so to decide whether there is evidence

of probative value to support the answers made by the jury to the issues.”) (quotation omitted) (emphasis added), and

Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914) (“[W]e must reject all evidence favorable to the plaintiffs

in error, and consider only the facts and circumstances which tend to sustain the verdict.... In considering this question,

we must take into account all of the facts and circumstances attending the transaction.”).

10 See, e.g., W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY'S L.J. 1, 159–62 (2002); William V. Dorsaneo,

III, Judges, Juries, & Reviewing Courts, 53 SMU L.R. 1497, 1498, 1507–11 (2000); Phil Hardberger, Juries Under Siege,

30 ST. MARY'S L.J. 1, 40–41 (1998). But see William Powers, Jr., Judge & Jury in the Texas Supreme Court, 75 TEX.

L.REV. 1699, 1699–1700, 1704–19 (1997) (concluding the Court is not changing the no-evidence standard of review but

is moving away from broad definitions of duty and toward particularized definitions of duty).

11 Robert W. Calvert was an associate justice of this Court from 1950 to 1960, and Chief Justice from 1961 to 1972.

12 Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 TEX. L.REV. 361 (1960).

13 Id. at 361.

14 “Most of what has been said here is repetitious of what has been said before in the cited cases and articles. The purpose

of the writer here has been to try to bring former writings on the subject into compact form and under somewhat closer

analysis.” Id. at 371.

15 Id. at 362–63.

16 See, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Marathon Corp. v. Pitzner, 106 S.W.3d 724,

727 (Tex.2003) (per curiam); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998); Mar. Overseas

Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997);

Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991); Cecil v. Smith, 804 S.W.2d 509, 510 n. 2

(Tex.1991); Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990).

17 Calvert, supra note 12, at 364.

18 See In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002); Uniroyal, 977 S.W.2d at 340; Triton Oil & Gas Corp. v. Marine

Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

19 Calvert, supra note 12, at 364 (“If there is an absolute absence of evidence of a vital fact ... an appellate court has no

occasion to concern itself with an abstract rule such as how minds of reasonable men might view the situation.”).

20 New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158–59 (Tex.2004); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114

(Tex.2000); Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, 877–78 (1912).

21 Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.2002) (considering remarks in context of series of talk-show programs);

Turner, 38 S.W.3d at 115 (holding defamation includes story in which details are right but gist is wrong).

22 Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.2004).

23 DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex.1999).

24 Tiller v. McLure, 121 S.W.3d 709, 714 (Tex.2003) (per curiam); see also Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84

S.W.3d 604, 610–11 (Tex.2002); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex.1999).

25 See George Grubbs Enters., Inc. v. Bien, 881 S.W.2d 843, 852–53 (Tex.App.-Fort Worth 1994) (holding that efforts to

pressure deaf-mute consumer to buy car were legally sufficient evidence of intentional infliction), rev'd on other grounds,

900 S.W.2d 337, 338 (Tex.1995).

26 See Tiller, 121 S.W.3d at 714 (holding efforts to pressure widow of contracting party to complete project were legally

insufficient evidence of intentional infliction).
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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27 See, e.g., id. at 713–14 (discussing contrary evidence showing defendant's reasonable concerns about timeliness of

plaintiff's work); Sears, 84 S.W.3d at 612 (discussing contrary evidence that defendant believed claimant was involved

in suspicious dealings).

28 Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684, 685 (Tex.2004) (holding no evidence supported defect

as comments from deposition “were read out of context”).

29 Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 n. 1 (Tex.2004) (citing Henry v. Phillips,

105 Tex. 459, 151 S.W. 533, 538 (1912)). This rule was changed for hearsay evidence in 1983. See TEX.R. EVID. 802

(“Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.”).

30 Tex. & P. Ry. Co. v. Ball, 96 Tex. 622, 75 S.W. 4, 6 (1903).

31 Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 579 (Tex.2002) (holding defamation was not in course and scope

of employment as duties required employee to cooperate in investigation but not to lie); Robertson Tank Lines, Inc. v.

Van Cleave, 468 S.W.2d 354, 360 (Tex.1971) (holding truck driver was not in course of employment during social visit

to his father).

32 Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782–83 (1949) (affirming directed verdict against malpractice claim as

inadequate expert testimony from doctor of same school or practice as defendant rendered proof legally insufficient).

33 See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996).

34 See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499–500 (Tex.1995) (holding opinion that spray caused frostbite

was legally insufficient as it assumed absence of redness when plaintiff admitted the contrary); Roark v. Allen, 633 S.W.2d

804, 809 (Tex.1982) (holding opinion that physician should have warned of possible skull fracture was legally insufficient

as it assumed physician was aware of fracture when there was no proof he was).

35 See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995) (adopting reasoning of Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

36 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714, 720 (Tex.1997).

37 Id. at 711, 724–30.

38 Kerr–McGee Corp. v. Helton, 133 S.W.3d 245, 254–57 (Tex.2004).

39 Calvert, supra note 12, at 364.

40 Id. at 364–65.

41 Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (holding evidence that truck caught fire unaccompanied by

proof identifying any defect did not exceed a scintilla, as jurors would have to guess cause); Marathon Corp. v. Pitzner,

106 S.W.3d 724, 729 (Tex.2003) (per curiam); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997); W.

Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895, 900 (Tex.1937); Calvert, supra note 12, at 365.

42 Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex.1991); see also Litton Indus. Prods., Inc.

v. Gammage, 668 S.W.2d 319, 324 (Tex.1984) (citing Tex. Sling Co. v. Emanuel, 431 S.W.2d 538, 541 (Tex.1968)).

43 Lozano, 52 S.W.3d at 167.

44 Calvert, supra note 12, at 365.

45 Id.

46 Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 938 (Tex.1998).

47 See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003) (per curiam); McCann, 99 S.W.2d at 900.

48 Calvert, supra note 12, at 363–64. But other commentators disagree. See Powers, supra note 10, at 1703–10. We have

held that a “conclusively and as a matter of law” point may be asserted under a “no evidence” point. O'Neil v. Mack

Trucks, Inc., 542 S.W.2d 112, 113 (Tex.1976). And the cases in this section note that conclusive proof is often asserted

by parties that do not carry the burden of proof. See also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per

curiam) (court must first examine record for evidence supporting verdict, ignoring all evidence to the contrary; if there is no

such evidence, the court then examines the entire record to see if the contrary finding is established as a matter of law).

49 Calvert, supra note 12, at 363–64. But see, e.g., Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex.1991) (“Cecil's points

that (1) there was no evidence to support the findings and (2) the contrary of each finding was established as a matter

of law will hereinafter collectively be referred to as her “no evidence” points.”).

50 St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519–20 (Tex.2002) (plurality op.) (quoting Universe Life Ins. Co. v. Giles, 950

S.W.2d 48, 51 n. 1 (Tex.1997)).

51 Tex. & N.O.R Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 528, 530 (1947); see also Prudential Ins. Co. of Am. v. Krayer,

366 S.W.2d 779, 783 (Tex.1963) (finding evidence of suicide undisputed after disregarding disputed portion of facts).
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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52 Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517,

523 (1956) (“[T]he trial court is required to submit only controverted issues. No jury finding is necessary to establish

undisputed facts.”); Clark v. Nat'l Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 822 (1947) ( “Uncontroverted

questions of fact need not be and should not be submitted to the jury for its determination.”); S. Underwriters v. Wheeler,

132 Tex. 350, 123 S.W.2d 340, 341 (Tex.1939).

53 County of Bexar v. Santikos, 144 S.W.3d 455, 460–61 (Tex.2004).

54 PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 97–98 (Tex.2004).

55 State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40 (Tex.1998).

56 Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709–10 (Tex.2003) (per curiam).

57 See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 930 (Tex.1996).

58 King v. Graham, 126 S.W.3d 75, 78–79 (Tex.2003) (per curiam) (holding no evidence supported malicious prosecution

claim as district attorney admitted prosecution was due to item he overlooked rather than any false statements by

defendants).

59 Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex.1962) (return to regular job in which use of hand was required

conclusively established claimant did not suffer total loss of use).

60 Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309–10 (Tex.1986) (return to work did not conclusively establish

injury was not total as claimant could not do regular work and employer voluntarily accommodated her with lesser duties).

61 See, e.g., Prudential Ins. Co. of Am. v. Krayer, 366 S.W.2d 779, 783 (Tex.1963).

62 See Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 552 (Tex.1976).

63 Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340 (Tex.1998); Triton Oil & Gas Corp. v. Marine Contractors

& Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

64 811 S.W.2d 557, 560 (Tex.1991).

65 Id. at 558.

66 Id. at 560. In defense of jurors, it should be noted that the trier-of-fact in Murdock was a judge.

67 135 Tex. 7, 136 S.W.2d 1113, 1115 (1940).

68 Id.

69 Id.

70 Clewis v. State, 922 S.W.2d 126, 133 n. 12 (Tex.Crim.App.1996) (en banc) (citation omitted).

71 Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911).

72 443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

73 Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004).

74 Our sister court reviews the legal sufficiency of criminal convictions by considering “all evidence which the jury was

permitted, whether rightly or wrongly, to consider” in the light most favorable to the prosecution. Moff v. State, 131 S.W.3d

485, 488 (Tex.Crim.App.2004); see also Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005).

75 In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002).

76 Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex.2002); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000).

77 Garza, 164 S.W.3d at 627.

78 616 S.W.2d 911, 922 (Tex.1981).

79 Id. at 926 (Greenhill, C.J., concurring).

80 See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234–35 (Tex.2004).

81 Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 55–56 (Tex.1997).

82 See id. at 51 (noting same problem with previous test whether insurer had reasonable basis for denying claim).

83 See Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262–63 (Tex.2002) (finding no evidence of bad faith based

in part on defendant's correspondence showing misunderstanding regarding settlement terms); State Farm Fire & Cas.

Co. v. Simmons, 963 S.W.2d 42, 45 (Tex.1998)(affirming bad-faith verdict after noting that insurer gave contradictory

reasons for not interviewing potential arsonists); Minn. Life Ins. Co. v. Vasquez, 133 S.W.3d 320, 330 (Tex.App.-Corpus

Christi 2004, pet. filed) (finding some evidence of bad faith because, though insurer showed hospital stymied its efforts to

obtain records, insurer failed to seek same information from other sources); Allstate Tex. Lloyds v. Mason, 123 S.W.3d

690, 704–06 (Tex.App.-Fort Worth 2003, no pet.) (reversing bad-faith verdict for legal insufficiency because insurer

reasonably relied on expert report); Allison v. Fire Ins. Exch., 98 S.W.3d 227, 249–50 (Tex.App.-Austin 2002, pet. granted,

judgm't vacated w.r.m.) (affirming bad-faith verdict after reviewing insurer's reasons for delay and insured's responsive
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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evidence); Oram v. State Farm Lloyds, 977 S.W.2d 163, 167 (Tex.App.-Austin 1998, no pet.) (reversing bad-faith verdict

for legal insufficiency because insurer's interpretation of exclusion was reasonable though incorrect).

84 Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex.2003) (per curiam) (noting liability may be established

by proof of discrimination plus proof employer's reason was pretext); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d

444, 452 (Tex.1996) (same).

85 See, e.g., Univ. of Houston v. Clark, 38 S.W.3d 578, 583 (Tex.2000) (noting good-faith test considers all circumstances

on which official acted).

86 See, e.g., PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 94 (Tex.2004) (holding no evidence

supported jury verdict applying discovery rule based on contrary evidence that claimant's predecessor knew 3,000

windows had failed).

87 See, e.g., Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 194–95 (Tex.1998) (finding no evidence insurer denied

claim in bad faith due to conflicting medical evidence).

88 See, e.g., State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex.1997) (holding some evidence showed expert report

was pretext and thus denial of claim had no reasonable basis).

89 Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28

(Tex.1993); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Edrington v. Kiger, 4 Tex. 89, 93 (1849).

90 McGalliard, 722 S.W.2d at 697; Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex.1986); Ford v. Panhandle & Santa Fe Ry.

Co., 151 Tex. 538, 252 S.W.2d 561, 563 (1952) (holding it was up to jurors “to resolve conflicts and inconsistencies in the

testimony of any one witness as well as in the testimony of different witnesses”); Houston, E. & W.T. Ry. Co. v. Runnels,

92 Tex. 305, 47 S.W. 971, 972 (1898).

91 Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000).

92 Runnels, 47 S.W. at 972.

93 Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 907 (1942) (noting the Court “read the

entire statement of facts”).

94 Harbin v. Seale, 461 S.W.2d 591, 594 (Tex.1970); compare Harbin v. Seale, 454 S.W.2d 271, 272 (Tex.Civ.App.-Dallas

1970) (reporting defendant's testimony that he was traveling only 40 miles per hour), rev'd, 461 S.W.2d 591 (Tex.1970).

95 MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 653–54 (Tex.1999) (holding evidence allowed jurors to

disbelieve defendant's experts' testimony even though plaintiff's expert's testimony was shown to be in error); Runnels,

47 S.W. at 972; Cheatham v. Riddle, 12 Tex. 112, 118 (1854).

96 PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 100 (Tex.2004).

97 Anchor Cas. Co. v. Bowers, 393 S.W.2d 168, 169–70 (Tex.1965).

98 Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex.1998); McGalliard v. Kuhlmann, 722 S.W.2d 694,

697 (Tex.1986).

99 Bentley v. Bunton, 94 S.W.3d 561, 599 (Tex.2002).

100 See TEX.R. CIV. P. 166a(c); Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 817 (Tex.2002) (finding no evidence that

store knew of puddle based in part on uncontradicted testimony by only employee in the area); In re Doe 4, 19 S.W.3d 322,

325 (Tex.2000); WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 574 (Tex.1998) (holding reporter's detailed explanation

of foundation of report established lack of malice as matter of law).

101 See, e.g., Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 754 (Tex.1993); Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597,

601 (Tex.1993); Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 365 (1957); Howard Oil Co. v. Davis,

76 Tex. 630, 13 S.W. 665, 667 (1890) (holding reviewing court must uphold jury verdict despite strong evidence to the

contrary if evidence is conflicting).

102 See, e.g., Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 592 (Tex.1999); Caller–Times Publ'g Co. v. Triad

Communications, Inc., 826 S.W.2d 576, 580 (Tex.1992); Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex.1966).

103 Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48–49 (Tex.1998).

104 Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex.1998).

105 White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262–63 (Tex.1983).

106 Hall v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 502 (1952).

107 St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542–43 (Tex.2002) (plurality op.).

108 T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992).

109 Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341–42 (Tex.1998).

110 De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 98–99 (1955).
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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111 Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); id. at 162–63 (Hecht, J., concurring and dissenting).

112 See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Coastal Transp. Co. v. Crown Cent. Petroleum

Corp., 136 S.W.3d 227, 234 (Tex.2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Mobil Oil Corp.

v. Ellender, 968 S.W.2d 917, 922 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997);

Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25

(Tex.1994); Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63

(Tex.1983); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex.1983) (per curiam).

113 See William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” & “Insufficient Evidence,” 69 TEX. L.R. 515, 517–

20 (1991).

114 Gragg, 151 S.W.3d at 552; St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Southwestern Bell

Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998) (per curiam); Formosa Plastics Corp. USA v. Presidio Eng'rs

& Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Havner, 953 S.W.2d at 711; Universe Life Ins. Co. v. Giles, 950

S.W.2d 48, 75 (Tex.1997) (Hecht, J., concurring); Preferred Heating & Air Conditioning Co. v. Shelby, 778 S.W.2d 67,

68 (Tex.1989) (per curiam); Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981); Harbin v. Seale, 461 S.W.2d

591, 592 (Tex.1970); W. Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895, 898 (Tex.1937).

115 See St. Joseph Hosp., 94 S.W.3d at 519–20 (Tex.2002) (plurality op.); Giles, 950 S.W.2d at 51 n. 1 (citing Wininger v.

Ft. Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912) and Tex. & N.O. Ry. Co. v. Rooks, 293 S.W. 554,

556–57 (Tex.Comm'n.App.1927)).

116 Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620 (Tex.2004) (citing Choate v. San Antonio & A.P. Ry., 91 Tex.

406, 44 S.W. 69, 69 (1898); Muhle v. N.Y., T. & M. Ry., 86 Tex. 459, 25 S.W. 607, 608 (1894)).

117 Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Qantel Bus. Sys., Inc. v. Custom

Controls Co., 761 S.W.2d 302, 303 (Tex.1988); Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965); Triangle Motors v.

Richmond, 152 Tex. 354, 258 S.W.2d 60, 61 (1953); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d

561, 562 (1952); Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935, 938 (1940).

118 Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex.2004); S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996);

Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262

(Tex.1983); Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 753 (Tex.1970); Dunagan v. Bushey, 152 Tex. 630,

263 S.W.2d 148, 153 (1953); Fitz–Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 258 (1951); Kelly v. McKay, 149 Tex.

343, 233 S.W.2d 121, 122 (1950); White v. White, 141 Tex. 328, 172 S.W.2d 295, 296 (1943); McAfee v. Travis Gas

Corp., 137 Tex. 314, 153 S.W.2d 442, 445 (1941); Wellington Oil Co. v. Maffi, 136 Tex. 201, 150 S.W.2d 60, 61 (1941);

Chicago, R.I. & G. Ry. Co. v. Carter, 261 S.W. 135, 135 (Tex.Com.App.1924, judgm't adopted); Charles v. El Paso Elec.

Ry. Co., 254 S.W. 1094, 1094–95 (Tex.Com.App.1923, holding approved, judgm't adopted).

119 Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam); Vance v. My Apartment Steak House of

San Antonio, Inc., 677 S.W.2d 480, 483 (Tex.1984); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983);

Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex.1982); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978); Henderson

v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976); Jones v. Nafco Oil & Gas, Inc., 380 S.W.2d 570, 574 (Tex.1964).

120 Act of April 25, 1931, 42d Leg., R.S., ch. 77, § 1, 1931 Tex. Gen. Laws 119; Myers v. Crenshaw, 134 Tex. 500, 137

S.W.2d 7, 13 (Tex.1940); Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 971 (Tex.1936). Cf. Deal v. Craven, 277 S.W.

1046, 1047 (Tex.Com.App.1925, judgm't adopted) (“It has long been settled in this state that the judgment must follow

the verdict, and that the courts are without power to enter a judgment notwithstanding a verdict upon a material issue.”).

121 Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex.1998) (“[W]e consider the evidence in the light most

favorable to the verdict and reasonable inferences that tend to support it.”); Trenholm v. Ratcliff, 646 S.W.2d 927, 931

(Tex.1983) (“In acting on the motion [for judgment notwithstanding the verdict], all testimony must be viewed in a light

most favorable to the party against whom the motion is sought, and every reasonable intendment deducible from the

evidence is to be indulged in that party's favor.”) (emphasis added); Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 728

(Tex.1982) (same); Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974) (same); Leyva v. Pacheco, 163 Tex.

638, 358 S.W.2d 547, 550 (1962) (same); Houston Fire & Cas. Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603–04

(1953) (affirming trial court's implied disregard of one jury answer based on “consideration of the transcript as a whole”);

Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952) (“[W]e must consider all the testimony in the record from

the standpoint most favorable to the plaintiff.”) (emphasis added); Neyland v. Brown, 141 Tex. 253, 170 S.W.2d 207,

211 (Tex.1943) (considering judgment non obstante veredicto “in the light of the record as a whole”); Le Master v. Fort

Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224, 225 (1942) (“[W]e must view LeMaster's testimony, as well as all other

testimony in the record, from a standpoint most favorable to him.”) (emphasis added); McAfee v. Travis Gas Corp., 137
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

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Tex. 314, 153 S.W.2d 442, 445 (1941) (“[W]e must regard the evidence contained in this record in its most favorable light

for McAfee ... because of the instructed verdict and judgment non obstante veredicto.”); see also Ballantyne v. Champion

Builders, Inc., 144 S.W.3d 417, 424–29 (Tex.2004) (upholding judgment non obstante veredicto based on conclusive

evidence contrary to verdict).

122 See Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003) (per curiam); Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709

(Tex.2003) (per curiam); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Best v. Ryan Auto Group, Inc.,

786 S.W.2d 670, 671 (Tex.1990) (per curiam); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986);

Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex.1984); Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Freeman

v. Tex. Comp. Ins. Co., 603 S.W.2d 186, 191 (Tex.1980); Dodd v. Tex. Farm Prods. Co., 576 S.W.2d 812, 814–15

(Tex.1979); Campbell v. Northwestern Nat'l Life Ins. Co., 573 S.W.2d 496, 497 (Tex.1978); Miller v. Bock Laundry Mach.

Co., 568 S.W.2d 648, 650 (Tex.1977); Sobel v. Jenkins, 477 S.W.2d 863, 865 (Tex.1972); C. & R. Transp., Inc. v.

Campbell, 406 S.W.2d 191, 193 (Tex.1966).

123 See Tiller, 121 S.W.3d at 713 (citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001)); Miller, 102 S.W.3d at 709

(same); Best, 786 S.W.2d at 671 (citing King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985)); Tomlinson, 677 S.W.2d at 492

(citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981)); Campbell, 573 S.W.2d at 497 (citing Martinez

v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974)); Campbell, 406 S.W.2d at 193 (citing Cartwright v. Canode, 106

Tex. 502, 171 S.W. 696, 697–98 (1914)).

124 IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex.2003); Wal–Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002);

Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990); Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868

(Tex.1984).

125 See TEX.R. CIV. P. 166a(i).

126 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

127 FED.R.CIV.P. 50(a)(1).

128 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949).

129 Id. at 57, 69 S.Ct. 413.

130 Reeves, 530 U.S. at 149–50, 120 S.Ct. 2097 (citations omitted).

131 Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (emphasis added)

(citation omitted); accord Long v. Long, 144 S.W.3d 64, 67 (Tex.App.-El Paso 2004, no pet.); Gore v. Scotland Golf,

Inc., 136 S.W.3d 26, 29 (Tex.App.-San Antonio 2003, pet. denied); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438

(Tex.App.-Dallas 2002, pet. denied); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 113 n. 3 (Tex.App.-Beaumont

2001, pet. denied); Molina v. Moore, 33 S.W.3d 323, 329 (Tex.App.-Amarillo 2000, no pet.); Wal–Mart Stores, Inc. v. Itz,

21 S.W.3d 456, 470 n. 3 (Tex.App.-Austin 2000, pet. denied); see also In re King's Estate, 150 Tex. 662, 244 S.W.2d

660, 661 (1951) (per curiam) (holding court of appeals erred in failing to distinguish between legal and factual sufficiency

review by not weighing all the evidence when conducting the latter).

132 Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981) (noting that review of gross negligence finding by considering

all the evidence appeared to but did not conflict with traditional no-evidence test).

133 Dorsaneo, supra note 10, at 1503; see also Hardberger, supra note 10, at 17 (arguing exclusive standard is “designed

to afford high deference to jury verdicts”).

134 State v. Biggar, 873 S.W.2d 11, 13 (Tex.1994).

135 See, e.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex.2000) (noting plaintiff argued defendant's frequent

inspections of stairs showed knowledge of inherent danger, while court held it showed the opposite as inspections found

nothing); State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 45 (Tex.1998) (affirming bad-faith verdict after noting

insurer's reasons for denial were contradictory).

136 See, e.g., Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex.1993) (noting evidence of single previous minor

stumble supported negligence finding but not gross negligence).

137 See Judith Resnik, Managerial Judges, 96 HARV. L.R.. 374, 382–83 (1982) (noting that images of justice appeared

blindfolded only within the last four hundred years).

138 Justice Calvert's use of the masculine in 1960 may perhaps be forgiven, for although Hattie Hennenberg, Hortense Ward,

and Ruth Brazzil served temporarily on this Court in 1925, and Sarah T. Hughes was appointed as a state district judge

ten years later, it was not until 1954 that the Texas Constitution was amended to allow women to serve as jurors, and

not until 1973 that Mary Lou Robinson became the first women to serve as a state appellate judge. See James T. “Jim”
City of Keller v. Wilson, 168 S.W.3d 802 (2005)

48 Tex. Sup. Ct. J. 848

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Worthen, The Organizational & Structural Development of Intermediate Appellate Courts in Texas, 46 S. TEX. L.REV.

33, 75 (2004); Robert L. Dabney, Jr. We Were There, HOUSTON B.J. Nov.-Dec.1999, at 42, 44.

139 Calvert, supra note 12, at 364.

140 Wilkerson v. McCarthy, 336 U.S. 53, 65, 69 S.Ct. 413, 93 L.Ed. 497 (1949) (Frankfurter, J., concurring).

141 86 S.W.3d 693, 709.

142 Id. at 703, 705.

143 Id. at 705.

144 Id. at 704–05.

145 Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189, 194–95 (Tex.1998); see also State Farm Lloyds v. Nicolau,

951 S.W.2d 444, 448 (Tex.1997) (holding reliance on expert report did not foreclose bad-faith claim because claimant

“presented evidence from which a fact-finder could logically infer that Haag's reports were not objectively prepared, that

State Farm was aware of Haag's lack of objectivity, and that State Farm's reliance on the reports was merely pretextual.”).

146 Cf. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 140 (Tex.2004) (holding complaint letters may require

manufacturer to investigate, but are not evidence complaints are true).

147 Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004) (emphasis added).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

419 S.W.3d 597

Court of Appeals of Texas,

San Antonio.

CITY OF SAN ANTONIO, Appellant

v.

GREATER SAN ANTONIO BUILDERS

ASSOCIATION and Indian Springs

Greater San Antonio Builders Association

and Indian Springs Ltd., Appellees.

No. 04–13–00013–CV. | Nov. 20, 2013.

Synopsis

Background: Builders' association and owner of land within

city limits brought declaratory judgment action against city

seeking declaration that city's fair notice ordinance, which

required all development project permit seekers to complete

city's fair notice form, conflicted with and was preempted

by provisions of Local Government Code. The 37th Judicial

District Court, Bexar County, denied city's plea to the

jurisdiction, and city appealed. The Court of Appeals, 2013

WL 2247468, affirmed. The 37th Judicial District Court,

David A. Berchelmann, Jr., J., granted summary judgment in

favor of builders' association and landowner. City appealed.

Holdings: The Court of Appeals, Karen Angelini, J., held that

[1] city's fair notice ordinance, which required all

development project permit seekers to complete city's fair

notice form in addition to an original application for the

project under vested rights chapter of Local Government

Code, conflicted with and was preempted by provisions of

Local Government Code;

[2] trial court was not required to apply severance clause in

fair notice ordinance in order to strike any invalid parts of

ordinance and leave remainder of ordinance in effect;

[3] terms of fair notice ordinance altered manner in which

vested rights accrued, and were not merely “technical

requirements” relating to the form and content of permit

applications; and

[4] trial court did not abuse its discretion in awarding attorney

fees to builders' association and landowner.

Affirmed.

Attorneys and Law Firms

*599 Norbert J. Hart, Michael D. Bernard, City Attorney's

Office, R. Gaines Griffin, Law Offices of Davidson, Troilo,

Ream & Garza, Dan Pozza, Law Offices of Dan Pozza, San

Antonio, TX, for Appellant.

S. Mark Murray, Law Office of S. Mark Murray, San

Antonio, TX, for Appellee.

Sitting: KAREN ANGELINI, MARIALYN BARNARD, and

REBECA C. MARTINEZ, Justices.

OPINION

Opinion by: KAREN ANGELINI, Justice.

The City of San Antonio appeals from a declaratory judgment

invalidating its fair notice ordinance. We affirm.

BACKGROUND

Chapter 245 of the Texas Local Government Code

In Texas, title 7 of the local government code governs the

regulation of land use, structures, businesses, and related

activities. Chapter 245, which is contained in title 7 of the

local government code, governs the issuance of local permits

by a regulatory agency. TEX. LOC. GOV'T CODE ANN..

§§ 245.001–.007 (West 2005). In 2005, the Texas Legislature

amended chapter 245 to include a provision stating that

certain development rights accrue “on the filing of an original

application or plan for development or plat application that

gives the regulatory agency fair notice of the project and

the nature of the permit sought.” See id. § 245.002(a–1).

Thus, under chapter 245, a development project is governed

by the regulations in effect at the time of the application

for the project's first permit, rather than by any intervening

regulations passed by the regulatory agency. See id. Chapter

245 expressly provides that it may be enforced through

declaratory relief. Id. § 245.006(a).

Fair Notice Ordinance
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

In February 2006, the City of San Antonio passed the fair

notice ordinance. Section 35–410 of the ordinance requires

permit applicants to complete a form, the fair notice form,

with all permit applications. San Antonio, Tex., Unified

Development Code, § 35–410 (2006). The express purpose

of section 35–410 is “to provide standard procedures for

an applicant to accrue rights under Chapter 245 of the

Texas *600 Local Government Code.” Id. The provisions

of section 35–410 apply to “any application for a permit by

which an applicant desires to accrue rights under Chapter

245 of the Texas Local Government Code.” Id. § 35–410(a).

“To accrue rights under Chapter 245 of the Texas Local

Government Code, an applicant shall submit a complete

application for a required permit ... within 45 days of the

submission of the Fair Notice Form.” Id. § 35–410(e).

Declaratory Judgment Action

In July 2006, the Greater San Antonio Builders Association

(GSABA) and Indian Springs, Ltd., filed the underlying

declaratory judgment action, alleging the fair notice

ordinance conflicted with chapter 245. GSABA is a nonprofit organization whose members include individuals and

entities who are concerned with issues affecting the real estate

industry in the greater San Antonio area. Many members

also own real property in the City. Indian Springs is a Texas

limited partnership that owns real property in the City. The

City is a regulatory agency as that term is defined in chapter

245. See id. § 245.001(4) (providing that “regulatory agency”

“means the governing body of, or a bureau, department,

division, board, commission, or other agency of, a political

subdivision acting in its capacity of processing, approving, or

issuing a permit”).

The City filed a plea to the jurisdiction challenging the

standing of GSABA and Indian Springs. The trial court

denied the City's plea to the jurisdiction, and the City appealed

this interlocutory order. We affirmed the order denying the

plea to the jurisdiction. City of San Antonio v. Greater San

Antonio Builders Ass'n, No. 04–12–00745–CV, 2013 WL

2247468, at *4 (Tex.App.-San Antonio 2013, no pet.).

Summary Judgment Motions

GSABA and Indian Springs presented the merits of their

declaratory judgment action in two traditional summary

judgment motions. The first summary judgment motion

addressed the ordinance as it affected two categories of

plaintiffs: (1) those who had vested rights in their property

and had such rights before the enactment of the ordinance

and whose rights had been previously acknowledged by the

City by way of a vested rights permit or similar document,

and (2) those who had vested rights in their property before

the enactment of the ordinance but whose vested rights had

not been previously acknowledged by the City. The second

summary judgment motion addressed the ordinance as it

affected a third category of plaintiffs: those who owned a

project, but had not yet obtained vested rights at the time

the fair notice ordinance was enacted. Cumulatively, the

summary judgment motions asserted that, in passing the

fair notice ordinance, the City substantively impaired or

encumbered vested rights that had already accrued under

chapter 245, and substantively impaired or encumbered

vested rights that would accrue under chapter 245 in the

future. The trial court granted both summary judgment

motions, and rendered a final judgment in favor of GSABA

and Indian Springs. The City appealed.

STANDARD OF REVIEW

We review a trial court's summary judgment de novo. Joe

v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156–

57 (Tex.2004); City of San Antonio v. En Seguido, Ltd.,

227 S.W.3d 237, 240 (Tex.App.-San Antonio 2007, no

pet.). When reviewing a summary judgment we take as true

all evidence favorable to the nonmovant, and we indulge

every reasonable inference and resolve any doubts in the

nonmovant's favor. Joe, 145 S.W.3d at 156–57; En Seguido,

227 S.W.3d at 240. The party moving for a “traditional”

summary *601 judgment bears the burden to show that no

genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. Joe, 145 S.W.3d at 156–57; En

Seguido, 227 S.W.3d at 240; TEX.R. CIV. P. 166a(c).

DECLARATORY JUDGMENT

On appeal, the City argues the fair notice ordinance, like all

ordinances, was entitled to a presumption of validity, and

GSABA and Indian Springs failed to satisfy their burden

to overcome this presumption in the summary judgment

proceedings below. The City further argues there is no

conflict between chapter 245 and the fair notice ordinance;

to the contrary, the fair notice ordinance is consistent and in

harmony with chapter 245. In response to these arguments,

GSABA and Indian Springs argue they met their summary

judgment burden by conclusively establishing that the fair

notice ordinance conflicts with chapter 245. 1
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

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[1] [2] [3] [4] When reviewing the validity of a city

ordinance, we begin with the presumption that the ordinance

is valid. City of Brookside Village v. Comeau, 633 S.W.2d

790, 792 (Tex.1982); RCI Entm't, Inc. v. City of San Antonio,

373 S.W.3d 589, 595 (Tex.App.-San Antonio 2012, no pet.).

The party challenging the ordinance bears the burden to

establish its invalidity. RCI Entm't, 373 S.W.3d at 595. An

ordinance that attempts to regulate a subject matter preempted

by a state statute is unenforceable to the extent it conflicts with

a state statute. Dallas Merchant's & Concessionaire's Ass'n

v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex.1993); RCI

Entm't, 373 S.W.3d at 595. We will not hold an ordinance

and a state statute repugnant to each other if we can reach a

reasonable construction leaving both in effect. In re Sanchez,

81 S.W.3d 794, 796 (Tex.2002); RCI Entm't, 373 S.W.3d

at 595–96. However, if it is not possible to reconcile the

ordinance and the state statute, the state statute trumps the

ordinance. See Dallas Merchant's, 852 S.W.2d at 490–92.

[5] [6] [7] Historically, the right to develop property

in Texas was subject to regulatory changes brought by the

local regulatory agency. Harper Park Two, LP v. City of

Austin, 359 S.W.3d 247, 249 (Tex.App.-Austin 2011, pet.

denied). However, the Texas legislature modified this rule

by enacting chapter 245. See id.; TEX. LOC. GOV'T CODE

ANN.. § 245.002(a–1). The effect of chapter 245 is to freeze

most of the regulatory agency's land-use regulations as they

existed at the time the first permit application is filed through

completion of the project. City of San Antonio v. Rogers

Shavano Ranch, Ltd., 383 S.W.3d 234, 245–46 (Tex.App.-

San Antonio, 2012, pet. denied); Harper Park Two, 359

S.W.3d at 250. The rights to which a permit applicant is

entitled under chapter 245 are commonly referred to as

“vested rights.” Vested rights attach to a project, not to

a particular property owner. Rogers Shavano Ranch, 383

S.W.3d at 246; Harper Park Two, 359 S.W.3d at 250.

Thus, vested rights follow any conveyances or transfer of

rights related to the project. Rogers Shavano Ranch, 383

S.W.3d at 246; *602 Harper Park Two, 359 S.W.3d at

250. Chapter 245 defines a “project” as “an endeavor over

which a regulatory agency exerts its jurisdiction and for which

one or more permits are required to initiate, continue, or

complete the endeavor.” TEX. LOC. GOV'T CODE ANN..

§ 245.001(3). “Because the term project is defined as an

endeavor, rights vest in a particular project and are no longer

vested if the project changes.” En Seguido, 227 S.W.3d at

242–43 (emphasis in original).

In enacting chapter 245, the legislature found the statute's

requirements were necessary to prevent “administrative and

legislative practices that often result[ed] in unnecessary

governmental regulatory uncertainty that inhibit[ed] the

economic development of the state[,] increased the costs of

housing and other forms of land development[,] and often

resulted in the repeal of previously approved permits causing

decreased property and related values, bankruptcies, and

failed projects.” See Act of May 11, 1999, 76th Leg., R.S., ch.

73, § 1(b), 1999 Tex. Gen. Laws 432; see also Harper Park

Two, 359 S.W.3d at 250.

[8] In the case before us, the City asserts the fair notice

ordinance is necessary for it to carry out its responsibilities

under chapter 245. According to the City, the fair notice

ordinance ensures it will have enough information about

a project to determine whether the project has changed

and, therefore, is subject to current development regulations.

GSABA and Indian Springs counter that the fair notice

ordinance impairs and encumbers important substantive

rights. They take the position that the fair notice ordinance

allows the City to prevent owners from obtaining or utilizing

vested rights that have already been authorized by the

legislature.

The summary judgment evidence submitted by GSABA and

Indian Springs included the deposition testimony of Roderick

J. Sanchez, the City's Director of Development Services.

Sanchez testified that his department interprets and enforces

the fair notice ordinance. Sanchez acknowledged that what

constituted vested rights was defined by state statute, and

the definition of vested rights did not vary based on the

location of the project. Nevertheless, Sanchez stated there

were no circumstances under which the City would recognize

vested rights in the absence of a completed fair notice

form. If an owner seeking recognition of vested rights did

not submit the fair notice form, his application would be

deemed incomplete and the City would not begin its review

to determine whether or not the owner had vested rights.

Sanchez noted that the information an owner was required

to provide under the fair notice ordinance was much more

detailed than the information that was required before the

passage of the fair notice ordinance. Before the passage of the

fair notice ordinance, an owner could identify an endeavor

without having all the information required on the City's fair

notice form, and the City would issue vested rights permits

without all of this information. Sanchez also acknowledged

that before the passage of the fair notice ordinance, but after

chapter 245 was enacted, the City required only “evidence of
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

a project” to recognize vested rights, and this evidence could

have been as simple as a master development plan.

The summary judgment evidence submitted by GSABA and

Indian Springs also included the fair notice ordinance and

the fair notice form mandated by the ordinance. The fair

notice ordinance provides that the City will not recognize

vested rights unless and until the owner completes and

submits the fair notice form. *603 See San Antonio, Tex.,

Unified Development Code § 35–712(a)(1)–(b)(2) (2006).

The fair notice form requires an owner to identify any

existing vested rights permit numbers if such permits have

already been approved for the proposed project. The form also

requires a site plan for most types of development projects.

According to the form, this site plan “shall include lot layout,

general building footprint with approximate square footage

of building(s), and land use.” 2 The fair notice form provides

that all fields on the form must be completed for the form to

be valid.

Under chapter 245, the filing of the first permit, or plan for

development, or plat application, in a development project

determines the regulations that will be used to govern the

remainder of the project. Specifically, section 245.002(a–1)

provides: “Rights to which a permit applicant is entitled under

this chapter accrue on the filing of an original application

or plan for development or plat application that gives the

regulatory agency fair notice of the project and the nature

of the permit sought.” TEX. LOC. GOV'T CODE ANN..

§ 245.002(a–1). When read in context, it is clear that the

term “original application” contemplates an original permit

application. Chapter 245 further provides: “If a series of

permits is required for a project, the orders, regulations,

ordinances, rules, expiration dates, or other properly adopted

requirements in effect at the time the original application for

the first permit in that series is filed shall be the sole basis

for consideration of all subsequent permits required for the

completion of the project.” Id. § 245.002(b). Thus, chapter

245 expressly defines the documents that cause the accrual of

vested rights and the time when this accrual occurs. 3

Nevertheless, as shown above, the fair notice ordinance

creates an additional procedure for obtaining recognition of

vested rights under chapter 245. This additional procedure

may wholly preclude the recognition of vested rights accruing

under chapter 245. In other words, the fair notice ordinance

effectively redefines the manner in which vested rights accrue

under chapter 245. Under the fair notice ordinance, the City

can deny the exercise of vested rights based upon the owner's

failure to provide information beyond that which was required

to vest rights in the first place. Thus, the fair notice ordinance

directly conflicts with chapter 245.

For these reasons, we hold that GSABA and Indian Springs

overcame the presumption of validity and conclusively

established that the fair notice ordinance conflicts with

chapter 245.

In arguing that the summary judgments were improperly

granted, the City criticizes the trial court for not trying to

harmonize *604 the ordinance and the statute. However,

the City does not explain how the ordinance and the statute

could be harmonized. Having examined chapter 245, the

ordinance, and the summary judgment evidence, we conclude

the ordinance and chapter 245 cannot be harmonized.

The City also faults the trial court for not severing the

objectionable provisions from the fair notice ordinance. The

City, however, did not present the severance clause argument

in its response to the first summary judgment motion. “Issues

not expressly presented to the trial court by written motion,

answer or other response shall not be considered on appeal as

grounds for reversal.” TEX.R. CIV. P. 166a(c). Thus, because

this argument was not presented to the trial court, we may

not consider it on appeal as a ground for reversal of the first

summary judgment motion.

[9] The City did present the severance clause argument

in its response to the second summary judgment motion.

There, the City argued that “[i]f the court believes that some

of the requirements of the [f]air [n]otice [o]rdinance are

so burdensome that vested rights might be prevented from

recognition, the [c]ourt should use the severability clause

contained in Section 6 of [the] [o]rdinance [ ] to strike out only

the invalid parts and leave the remainder of the [o]rdinance in

effect.” The severance clause provides:

Should any Article, Section, Part,

Paragraph, Sentence, Phrase, Clause

or Word of this ordinance, for any

reason be held illegal, inoperative,

or invalid, or if any exception

to or limitation upon any general

provision herein contained be held

to be unconstitutional or invalid

or ineffective, the remainder shall,

nevertheless, stand effective and valid

as if it had been enacted and

ordained without the portion held
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

to be unconstitutional or invalid or

ineffective.

San Antonio, Tex., Ordinance 2006–02–16–0241 (February

16, 2006).

Here, GSABA and Indian Springs challenged the validity of

the entire ordinance; they did not challenge the validity of a

particular article, section, part, paragraph, sentence, phrase,

clause, or word of the ordinance. Additionally, the trial court

concluded the entire ordinance was invalid, not merely part

of it. Under these circumstances, we conclude the trial court

did not err in failing to apply the severance clause to salvage

parts of the ordinance.

[10] Finally, the City claims that section 245.002(f)

expressly authorizes its fair notice ordinance. 4 We disagree.

Section 245.002(f) does not go so far as to authorize a

regulatory agency to wholly redefine the manner in which

vested rights accrue under chapter 245. It merely provides

that a regulatory agency is not prohibited from requiring

compliance with technical application requirements. See

TEX. LOC. GOV'T CODE ANN.. § 245.002(f).

We hold the trial court did not err in granting summary

judgment in favor of GSABA and Indian Springs.

ATTORNEY'S FEES

[11] Next, the City challenges the trial court's attorney's fees

award. The trial court awarded GSABA and Indian Springs

$115,000.00 in attorney's fees incurred at the trial level, and

additional amounts in *605 the event of an appeal. The City

stipulated that $115,000.00 was a reasonable and necessary

attorney's fee for the work performed at the trial level. On

appeal, the City argues the attorney's fees award was neither

equitable nor just. The City argues the taxpayers should not

be burdened with paying attorney's fees because the City

was merely attempting to regulate development in accordance

with the law.

We review the award of attorney's fees for an abuse

of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21

(Tex.1998); Peacock v. Schroeder, 846 S.W.2d 905, 912

(Tex.App.-San Antonio 1993, no writ). Attorney's fees

awarded under the Declaratory Judgment Act must be

“equitable and just.” TEX. CIV. PRAC. & REM.CODE

ANN. § 37.009 (West 2008). As we concluded earlier in this

opinion, the fair notice ordinance conflicts with chapter 245.

GSABA and Indian Springs were successful in demonstrating

this conflict between the ordinance and the state statute, and in

obtaining a declaratory judgment in their favor. See Peacock,

846 S.W.2d at 912 (holding the trial court did not clearly

abuse its discretion in awarding all of the stipulated attorney's

fees to a party who obtained a declaratory judgment in his

favor). We hold the trial court did not abuse its discretion in

awarding GSABA and Indian Springs attorney's fees.

CONCLUSION

The trial court's judgment is affirmed.

All Citations

419 S.W.3d 597

Footnotes

1 GSABA and Indian Springs also argue the summary judgments should be upheld because the fair notice ordinance is

an unconstitutional retroactive law. Arguably, this issue is not properly presented because GSABA and Indian Springs

did not specifically make this argument in the first summary judgment motion. And, as to the second summary judgment

motion, GSABA and Indian Springs only raised this issue in their brief, which was not filed until after the City filed its

response. Nevertheless, we need not reach this argument because we uphold the summary judgments on the ground

that the ordinance conflicts with chapter 245.

2 The undisputed summary judgment evidence showed that this information would generally not be available at the early

stages of a project when a first permit application would be submitted.

3 Chapter 245 defines “permit” as “a license, certificate, approval, registration, consent, permit, contract or other agreement

for construction related to, or provision of, service from a water or wastewater utility owned, operated, or controlled by

a regulatory agency, or other form of authorization required by law, rule, regulation, order, or ordinance that a person

must obtain to perform an action or initiate, continue, or complete a project for which the permit is sought.” TEX. LOC.

GOV'T CODE ANN. . § 245.001(1) (emphasis added). However, the fair notice ordinance omits a utility service agreement
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

as a document that may trigger the accrual of vested rights. According to the fair notice ordinance, there are only four

acceptable documents that trigger the accrual of vested rights: a master development plan, a plat application, a plat, or

a building permit. San Antonio, Tex., Unified Development Code § 35–712(b)(3)(A)–(D) (2006).

4 Section 245.002(f) provides:

This chapter does not prohibit a regulatory agency from requiring compliance with technical requirements relating to

the form and content of an application in effect at the time the application was filed even though the application is

filed after the date an applicant accrues rights under Subsection (a–1).

TEX. LOC. GOV'T CODE ANN.. § 245.002(f).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

598 S.W.2d 681

Court of Civil Appeals of Texas, Waco.

The CITY OF WEST LAKE HILLS, Texas, Appellant,

v.

WESTWOOD LEGAL DEFENSE FUND, Appellee.

No. 6157. | April 17, 1980.

City appealed from judgment entered in the 126th District

Court, Travis County, James F. Dear, Jr., J., permanently

enjoining city from enforcing by criminal action an ordinance

requiring licensing of private sewage facilities located within

city's extraterritorial jurisdiction. The Court of Civil Appeals,

James, J., held that: (1) city could not enforce ordinance by

criminal action; (2) city ordinance was not valid exercise

of powers granted to city under statute allowing each

city to pass ordinances regulating tapping of sewers and

cesspools and regulating house draining and plumbing, or

under statute generally granting to cities power to license; and

(3) municipal court had no jurisdiction to try violations of

ordinance which might occur in extraterritorial jurisdiction.

Affirmed.

Attorneys and Law Firms

*682 John McAllen Scanlan, Scanlan & Buckle, Austin, for

appellant.

David H. Walter, Bender, Walter & Wahlberg, Austin, for

appellee.

OPINION

JAMES, Justice.

This is an appeal from a judgment permanently enjoining

the Appellant, City of West Lake Hills, from enforcing by

criminal action an ordinance which requires the licensing

of private sewage facilities located within the city's

extraterritorial jurisdiction. We affirm the judgment.

The Appellant, City of West Lake Hills, is a general law city

having a population of less than 5000 people. On or about

October 12, 1977, the City Council passed an ordinance,

108-B, attempting to control pollution flowing from private

sewage facilities. Ordinance 108-B, among other things, sets

forth standards for the operation and construction of private

sewage facilities 1 and required inspection and licensing of

all such facilities existing within the city's limits or within

the city's extraterritorial jurisdiction. Inspections were to be

made by the city for a fee of $25 unless an owner hired his

own engineer or registered sanitarian to inspect the facility,

in which case a fee of $15 would be levied to cover the cost

of processing reports required to be submitted by a private

inspector. If the facility met the express standards of the

ordinance, a license immediately issued; if not, the city was

required to specify the reasons for rejecting the application for

license and the city was authorized to issue interim licenses

while the facility was modified to comply with the standards.

Most licenses were to be issued for a 5-year period, but a

license could be revoked at any time for non-compliance.

Enforcement of the ordinance was by criminal action brought

in the city's municipal court. Offenses proscribed by the

ordinance included, inter alia: 1) using or permitting the use

of an unlicensed private sewage facility on property owned

or possessed by the offender; and 2) failure of an owner to

make application for a license for an existing private sewage

facility on property within 90 days after notice by the city.

Convictions were punishable by a fine of not more than $200

for each separate offense.

The evidence establishes that the ordinance in question was

passed solely upon *683 the city's initiative and not as a joint

effort between the city and any state or county authority.

The Appellee, Westwood Legal Defense Fund, is a coalition

of homeowners, all of which reside in a subdivision known

as Westwood, which is located entirely outside the corporate

limits but within the extraterritorial jurisdiction of the City of

West Lake Hills. The Appellee filed this suit to enjoin West

Lake Hills from enforcing its Ordinance 108-B insofar as it

applied to facilities located outside the city's corporate limits,

pleading that the city lacks express or implied legislative

authority to regulate by licensing any private sewage facilities

located outside the city's corporate limits; that the ordinance

is hopelessly in conflict with state law since the Legislature

has granted exclusive authority for the regulation of private

sewage facilities to the Texas Water Commission and the

commissioners court of any county, citing Secs. 26.031

and 26.032 of the Texas Water Code; that the ordinance

imposes a fine not to exceed $200 for any violation thereof,

that such a fine is penal in nature and is prohibited by

state law, citing Art. 970a, Sec. 4; that the penalty further

conflicts with state law since Sec. 26.214 of the Texas

Water Code provides the exclusive remedy as well as proper
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

venue for violations of private sewage facility orders; that

the scheme of the ordinance is arbitrary, capricious and

unreasonable; that the ordinance represents a violation of the

constitutional prohibition against the enactment of retroactive

or ex post facto laws; and that the ordinance constitutes an

unconstitutional taking of property without due process.

The case was submitted to the trial court on stipulated facts

and written briefs and the court rendered judgment granting

a permanent injunction prohibiting the City of West Lake

Hills from enforcing by criminal action that provision of

Ordinance 108-B which requires the licensing of private

sewage facilities located within the city's extraterritorial

jurisdiction. The trial court's judgment recited that “the CITY

OF WEST LAKE HILLS, TEXAS, Ordinance 108-B is a

valid exercise of legislatively granted powers to the CITY OF

WEST LAKE HILLS, TEXAS, and that such Ordinance is in

all respects valid and enforceable except as hereinafter set out:

“a. That DEFENDANT CITY OF WEST LAKE HILLS,

TEXAS, Ordinance 108-B exceeds the authority granted

to the DEFENDANT CITY OF WEST LAKE HILLS

by the State of Texas only in its attempt to require the

licensing of private sewage facilities in the DEFENDANT'S

extraterritorial jurisdiction.

“b. That the Municipal Court of the CITY OF WEST

LAKE HILLS, TEXAS, has no jurisdiction to try violations

of Ordinance 108-B alleged to have occurred in the

DEFENDANT CITY'S extraterritorial jurisdiction.”

Further the judgment expressly recited that “Nothing

contained herein should be interpreted as expressing any

opinion over any of the provisions of Ordinance 108-B as they

apply within the city limits of the CITY OF WEST LAKE

HILLS, TEXAS.”

The City appeals claiming simply that the court erred in

finding its Ordinance 108-B invalid in the two respects set

forth above. We overrule the City's contentions.

[1] [2] A city can exercise only those powers that are

expressly or impliedly conferred by law, and a power will be

implied only when such power is reasonably incident to those

expressly granted or is essential to the object and purposes

of the corporation. Davis v. City of Taylor, 67 S.W.2d 1033,

123 Tex. 39 (1934); Anderson v. City of San Antonio, 67

S.W.2d 1036, 123 Tex. 163 (1934); Foster v. City of Waco,

255 S.W. 1104, 113 Tex. 352 (1923). Furthermore, any fair,

reasonable, or substantial doubt as to the existence of a power

will be resolved against the municipality. Foster v. City of

Waco, cited supra. The City argues that the power exercised

in Ordinance 108-B is in fact expressly or at least impliedly

conferred by Sec. 26.177 of the Texas Water Code, which in

its pertinent parts provides:

*684 “(a) Every city in this state having a population of

5,000 or more inhabitants shall, and any city of this state may,

establish a water pollution control and abatement program for

the city.

“(b) The water pollution control and abatement program of

a city shall encompass the entire city and may include areas

within its extraterritorial jurisdiction which in the judgment

of the city should be included to enable the city to achieve

the objectives of the city for the area within its territorial

jurisdiction. The city shall include in the program the services

and functions which, in the judgment of the city or as may be

reasonably required by the commission, will provide effective

water pollution control and abatement for the city, including

the following services and functions:

“(1) the development and maintenance of an inventory

of all significant waste discharges into or adjacent to the

water within the city and, where the city so elects, within

the extraterritorial jurisdiction of the city, without regard

to whether or not the discharges are authorized by the

department;

“(2) the regular monitoring of all significant waste discharges

included in the inventory prepared pursuant to Subdivision

(1) of this subsection;

“(3) the collecting of samples and the conducting of periodic

inspections and tests of the waste discharges being monitored

to determine whether the discharges are being conducted in

compliance with this chapter and any applicable permits,

orders or rules of the department, and whether they should be

covered by a permit from the commission;

“(4) in cooperation with the department, a procedure

for obtaining compliance by the waste discharges being

monitored, including where necessary the use of legal

enforcement proceedings; and

“(5) the development and execution of reasonable and

realistic plans for controlling and abating pollution or

potential pollution resulting from generalized discharges of
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

waste which are not traceable to a specific source, such as

storm sewer discharges and urban runoff from rainwater.”

The city contends that this statute constitutes a broad, general

grant of power to cities to formulate plans for the control of

pollution and that such plans can reasonably include licensing

of private sewage facilities and enforcement by criminal

action. The city supports its argument by citing Attorney

General's Opinion No. H-304 (1974), wherein the Attorney

General concludes that:

“A city has broad powers to establish

water pollution control programs

under (Sec. 26.177), Texas Water

Code. These powers can include

regulation of private sewage facilities

in the city and in its extraterritorial

jurisdiction.”

[3] [4] [5] [6] In construing a statute, it is our duty

to examine the entire act and construe it as a whole. One

provision of a statute will not be given a meaning out of

harmony or inconsistent with other provisions, even though

it might be susceptible to such construction if standing alone.

Merchants Fast Motor Lines, Inc. v. Railroad Commission

of Texas, 573 S.W.2d 502 (Tex.1978); Barr v. Bernhard,

562 S.W.2d 844 (Tex.1978); Gerst v. Oak Cliff Savings &

Loan Assn., 432 S.W.2d 702 (Tex.1968). For this reason we

cannot accept the City's argument, nor can we agree with

the Attorney General's Opinion to the extent that it may

support the City's position in this case. If Sec. 26.177 of the

Texas Water Code were the only statutory provision relating

to the control and abatement of pollution, there might be

some merit to the argument. However, Sec. 26.177 is only

one provision in a much more complex and comprehensive

legislative scheme. When Chapter 26 is viewed in its entirety,

regardless of the broad, general language of Sec. 26.177, it

is clear that the section was not intended to authorize cities

on their own initiative to regulate private sewage facilities

by licensing such facilities. For example, Sec. 26.031 of the

Texas Water Code, relating to “private sewage facilities,”

provides that:

*685 “(b) Whenever it appears that the use of private sewage

facilities in an area is causing or may cause pollution or

is injuring or may injure the public health, the commission

may hold a public hearing in or near the area to determine

whether an order should be entered controlling or prohibiting

the installation or use of private sewage facilities in the area.

“(d) If the commission finds after the hearing that the use of

private sewage facilities in an area is causing or may cause

pollution or is injuring or may injure the public health, the

commission may enter an order as it may consider appropriate

to abate or prevent pollution or injury to public health.

“(f) The commission may provide in the order for a system

of licensing of private sewage facilities in the area, including

procedures for cancellation of a license for violation of this

section, the license, or the orders or rules of the department.

The commission may also provide in the system of licensing

for periodic renewal of the licenses, but this may not be

required more frequently than once a year.

“(g) The commission may delegate the licensing function and

the administration of the licensing system to the executive

director or to any local government whose boundaries include

the area or which has been designated by the commission

under Sections 26.081 through 26.086 of this code as the

agency to develop a regional waste disposal system . . .

“(h) The board also may prescribe and require the payment of

reasonable license fees. . . .

“(i) If the commission or the executive director has the

responsibility for performing the licensing function, the

license fees shall be paid to the department. . . .

“(j) If a local government has the responsibility for

performing the licensing function, the fees shall be paid to the

local government.” (emphasis ours)

Sec. 26.032 of the Texas Water Code further provides that:

“(a) Whenever it appears to the commissioners court of any

county that the use of private sewage facilities in an area

within the county is causing or may cause pollution or is

injuring or may injure the public health, the county may

proceed in the same manner and in accordance with the same

procedures as the commission to hold a public hearing and

enter an order, resolution, or other rule as it may consider

appropriate to abate or prevent pollution or injury to public

health.

“(b) The order, resolution, or other rule may provide the same

restrictions and requirements as are authorized for an order of

the commission entered under this section.
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

“(c) Before the order, resolution, or other rule becomes

effective, the county shall submit it to the commission and

obtain the commission's written approval.

“(e) Where a system of licensing has been ordered by the

commission or the commissioners court of a county, no

person may install or use private sewage facilities required to

be licensed without obtaining a license.”

These two sections of the Water Code (Secs. 26.031 and

26.032) specifically grant the power to license private

sewage facilities to the Texas Water Commission and to the

Commissioners Courts of Texas counties. On the other hand,

Sec. 26.177, granting the power to “control and abate water

pollution,” does not specifically grant the power to license

such facilities nor does the language of Sec. 26.177 in any

way track or resemble the language of Secs. 26.031 or 26.032.

Furthermore, Sec. 26.031 expressly states that the power to

license may be delegated to a city by the commission. In order

to give any effect to this specific provision, we would have to

conclude that the power granted to the cities by Sec. 26.177

does not include the power that can be delegated by the Water

Commission under Sec. 26.031.

*686 [7] The city contends that Secs. 26.031 and 26.032

cannot be construed to limit the powers granted under Sec.

26.177 since neither 26.031 nor 26.032 expressly prohibits

regulation of private sewage facilities by cities. As a general

rule, however, in the construction of statutes a general clause

is limited or controlled by a special provision. It is said that

this rule is based upon the principle that a specific clause or

statute more clearly evidences the intention of the Legislature.

City of Baytown v. Angel (Houston 14th CA 1971) 469

S.W.2d 923, NRE.

In the instant case the specific assignment of the power to

license private sewage facilities (Secs. 26.031 and 26.032)

limits the more general grant of power to the cities. In our

opinion it is clear that the Legislature intended to reserve to

the State the ultimate power to regulate in the area of pollution

control. Even though the counties have express authority

to develop licensing requirements, such requirements must

be approved by the state. Sec. 26.032(c). Even though the

cities may assist in obtaining compliance with pollution

standards, these efforts must be in cooperation with the Texas

Department of Water Resources. Sec. 26.177(b)(4). Although

the Legislature recognized the importance of cooperative

efforts between state and local governmental bodies, the

state is assigned responsibility for promulgating rules and

regulations to control pollution problems. Sec. 26.177 lists

five specific functions and services that are or may be

assigned to the cities. None of these functions and services

specifically requires passage of rules and regulations for

controlling pollution. Instead, the functions and services

listed in Sec. 26.177 are in the nature of “information

gathering” functions which would ultimately be very valuable

to assist the state in designing and in enforcing its rules

and regulations. Sec. 26.177(b)(3), for example, expressly

states that the city's inspection and collection services are

designed to determine whether the discharges are meeting

applicable permits, rules, or orders of the state department

and whether they should be covered by a permit from the

state commission. In our opinion, Sec. 26.177 requires (in

the case of cities over 5000) or allows (in the case of cities

less than 5000) cities to monitor pollution levels both in their

corporate limits and in their extraterritorial jurisdictions. The

information gathered in this monitoring could (or should) be

used by cities in developing plans for growth and expansion,

which may of course include consideration of problems in the

extraterritorial jurisdiction. The information would further

be vital to the initiation of action by the state under Sec.

26.031(b), or by the county under Sec. 26.032(a), if pollution

problems were detected by the city in regard to private

or public sewage facilities within or surrounding the city.

However, the legislative scheme simply does not contemplate

independent regulatory action by a city.

[8] [9] The city argues alternatively that Ordinance 108-

B is a valid exercise of powers granted to it under Art. 1076

and Art. 1015(39), R.C.S. Art. 1076 directs that “Every city

in this State, however organized, having underground sewers

or cesspools, shall pass ordinances regulating the tapping

of said sewers and cesspools, regulating house draining and

plumbing”; and Art. 1015(39) is a general grant of the power

to license. All powers granted to a city can only be exercised

within the corporate limits of a city unless the power is

expressly extended to apply to areas outside these limits. City

of Sweetwater v. Hamner (Ft. Worth CA 1924) 259 S.W.

191, writ dismissed; Ex parte Ernest, 138 Tex.Cr.R. 441, 136

S.W.2d 595 (1940). The Appellees in this case only challenge

the power of the city to regulate private sewage facilities

located wholly within the city's extraterritorial jurisdiction

rather than within the city's corporate limits. Neither Art. 1076

nor Art. 1015(39) expressly authorizes regulations applying

outside the corporate limits and cannot therefore be relied on

in this case. The question of the validity of Ordinance 108-B

as it applies to facilities located within the city limits of City

of West Lake Hills is not raised by this case and we do not

decide that issue.
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

*687 [10] [11] The Appellant City assigns as a

separate point of error the conclusion of the trial court that

the municipal court has no jurisdiction to try violations

of Ordinance 108-B alleged to have occurred in the

extraterritorial jurisdiction of the city. As a general rule, a

municipal court only has jurisdiction to enforce violations

occurring within the corporate limits of the city. Art. 1195,

R.C.S. A municipal court may, however, have jurisdiction

to try offenses occurring outside the corporate limits if the

offenses constitute violations of city ordinances which validly

apply to the area in which the offense occurred. Treadgill v.

State, 160 Tex.Cr.R. 658, 275 S.W.2d 658 (1955); Parker v.

City of Ft. Worth (Ft. Worth CA 1955) 281 S.W.2d 721, no

writ. Having found that the city had no authority to apply

its licensing regulations in the extraterritorial jurisdiction, we

must also hold that the municipal court has no jurisdiction

to try violations of the ordinance which may occur in the

extraterritorial jurisdiction.

Judgment of the trial court is affirmed.

AFFIRMED.

All Citations

598 S.W.2d 681

Footnotes

1 “Private sewage facility” was defined as “any septic system, or other facility, system, or method for the storage, treatment,

or disposal of sewage other than an organized disposal system.” (An “organized disposal system” being “any public or

private system for the collection, treatment, and disposal of sewage operated in accordance with the terms and conditions

of a permit from the Water Quality Board.”)

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

535 S.W.2d 758

Court of Civil Appeals of Texas,

Tyler.

COFFEE CITY et al., Appellants,

v.

B. J. THOMPSON, Appellee.

No. 882. | March 25, 1976.

| Rehearing Denied April 22, 1976.

Property owner brought action against town, mayor, town

secretary and member of town council, seeking to have

zoning ordinance declared null and void and seeking writ of

mandamus or mandatory injunction for issuance of building

permit. The 3rd Judicial District Court, Henderson County,

R. W. Lawrence, J., entered judgment for plaintiff, and

defendants appealed. The Court of Civil Appeals, McKay,

J., held that town zoning ordinance was vague, uncertain,

indefinite and incomplete, and therefore invalid; and that city

zoning ordinance was invalid because of its failure to provide

for zoning commission, and such defect was not cured by

validating act.

Affirmed.

Attorneys and Law Firms

*759 F. Wilbert Lasater, Potter, Lasater, Guinn, Minton

& Knight, Tyler, Jack Y. Hardee, Fields, Fields & Hardee,

Athens, for appellants.

A. D. Henderson, Palestine, for appellee.

Opinion

McKAY, Justice.

Appellee, B. J. Thompson, brought suit against the Town

of Coffee City, Texas; Roland Wayne Phillips, individually

and as mayor of Coffee City; Mary Phillips, individually and

as city secretary of Coffee City; Paul Phillips and Wilbert

Davis. Appellee sought to have the zoning ordinance of the

Town of Coffee City declared null and void, and prayed for

a writ of mandamus or mandatory injunction for the issuance

of a building permit for the construction of a building in

which to operate a package store for the sale of alcoholic

beverages. The property of appellee was zoned ‘residential’

by the zoning ordinance of Coffee City. Trial was before the

court without a jury.

The trial court rendered judgment that the zoning ordinance

was invalid and null and void, and ordered the Town of Coffee

City, Mary Phillips, city secretary, and all other officials to

grant appellee's building permit to construct a building for

the operation of a package liquor store. Appellants bring this

appeal from the portion of the judgment holding the zoning

ordinance, being Ordinance No. 1, null and void, and of no

further force and effect. We affirm.

The trial court made and filed Findings of Fact and

Conclusions of Law. The Town *760 of Coffee City

was incorporated under the laws of Texas on December

18, 1969. At the first election Wayne Phillips was elected

mayor, Paul Phillips was elected councilman, and Mary

Phillips was appointed city secretary, all of whom are parties

individually and in their official capacities. On January 19,

1970, Ordinance No. 1 1 was adopted by the Town Council.

Under the local option provisions of the Texas Liquor *761

Control Act, the Town of Coffee City legalized the sale of all

alcoholic beverages, for off-premises consumption only, on

February 22, 1970.

Under the provisions of Ordinance No. 1 appellee's property

was classified as ‘residential’. On August 2, 1973, appellee

filed with the city secretary and Town Council an application

and request that his property be changed from ‘residential’

classification to ‘commercial’ classification, and such request

was denied on September 12, 1973, by the Council. 2

On October 4, 1973, appellee filed an application for a

building permit with the city secretary to construct a building

for use as a package store and the sale of other alcoholic

beverages. The appropriate filing fee was tendered with such

application. On October 25, 1973, the application for the

building permit was refused on the ground that the property

in question was zoned ‘residential’ under Ordinance No. 1.

At the time of the adoption of Ordinance No. 1, January

19, 1970, the town did not have a Zoning Commission or

a Planning and Zoning Commission, nor did it have such a

commission at the time of trial.

Cora Bradley had an undivided interest in appellee's property

at the time of the adoption of Ordinance No. 1 and had

actual notice of the proposed ordinance and requested that the

property be zoned ‘residential’.
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

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The appellants, Roland Wayne Phillips, mayor, and his

brother, Paul Phillips, a member of the Town Council, jointly

own the package store, Kilo Drive-In, in Coffee City, and it

is the only package store in the Town of Coffee City located

on Highway No. 155. At all times material to this case Coffee

City had a population not less than 200 nor more than 1,000

inhabitants.

Prior to the meeting of the Council on January 19, 1970,

written notices of such meeting were posted in three public

places *762 in the Town of Coffee City at least three

days prior to such meeting. No personal notice was given to

any property owner prior to the council meeting of January

19, 1970, regarding the proposed adoption of Ordinance

No. 1. Subsequent to the passage of Ordinance No. 1,

the entire ordinance was published in the Athens Review,

Athens, Texas, a weekly newspaper of general circulation in

Henderson County, Texas.

The trial court found in conclusions of law that Ordinance

No. 1 is invalid (1) because it is vague and indefinite in that

it does not contain a prohibition of commercial use such as

the use sought by appellee in a residential area nor does it

define or furnish guidelines for commercial or residential use;

(2) because the Town of Coffee City failed to provide for a

Zoning Commission in order to exercise zoning powers as

required by Art. 1011f;

3

 (3) because of the failure of the

Town of Coffee City to follow the procedural requirements of

Art. 1011d; (4) because of the failure of the Town of Coffee

City to give personal notice to the appellee's predecessors in

title and for failure to comply with the notice requirements of

Art. 1011d. The Court also found that Art. 974d—18, does

not validate Ordinance No. 1 in that the validating act has no

application to an invalid ordinance such as the instant one.

Appellant brings three points of error contending that the

trial court erred in declaring Ordinance No. 1 invalid (1)

for vagueness, (2) for failure of the Town of Coffee City to

provide for a Zoning Commission, and (3) for failure of the

Town of Coffee City to give personal notice to appellee's

predecessors in title and for failure to comply with the

procedural requirements of Art. 1011d.

Appellants' first point complains that the trial court erred

in finding Ordinance No. 1 invalid because it is vague

and indefinite. Appellants argue that the ordinance is not

uncertain simply because it does not define ‘residential’

and ‘commercial’, and that the word ‘residential’ has a

clear and well understood meaning—that is, the use of

property for living purposes as distinguished from use for

business or commercial purposes. Appellants further say that

an ordinance may be adequate as a rule of civil conduct

even though it may be too indefinite and uncertain to be

enforced by criminal prosecution. Appellants cite Vaccaro v.

Rougeou, 397 S.W.2d 501 (Tex.Civ.App.—Houston 1966,

writ ref'd n.r.e.), a restrictive covenant case, as authority for

the meaning of the words ‘residential’ and ‘commercial’.

Appellants make the further argument that appellee knew

his property was zoned residential before he acquired it and

before he applied for a building permit, and that he does not

have standing to assert the rights of others.

On the other hand, appellee contends that the ordinance is

vague, ambiguous, uncertain and incomplete because (1) it

fails to prohibit commercial uses of property classified or

zoned residential; (2) it fails to provide any guideline for

the city secretary in either issuing or denying a building

permit; and (3) it fails to define uses permitted in the areas

zoned residential and the areas zoned commercial. Appellee

argues that since the ordinance fails to expressly restrict the

use of properties zoned residential to residential use, that

is, it fails to prohibit a commercial use of property zoned

residential, it would have to be implied that a commercial

use is not permitted in a residential area, and be implied that

a residential use is not permitted in area zoned commercial.

Appellee points out that the ordinance has no provision

making it unlawful or prohibiting the use of property for

commercial purposes in a residential area, nor does Ordinance

1 contain a directive to the city secretary requiring her to deny

a building permit for construction of a commercial building

simply because it is located in the residential zone.

[1] [2] [3] In Lone Star Gas Co. v. Kelly, 140 Tex. 15,

165 S.W.2d 446 (Tex.Comm'n.App.1942, opinion adopted),

it is said, ‘A statute *763 which either forbids or requires

the doing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ

as to its application violates the first essential of due process

of law.’

Sanders v. State Department of Public Welfare, 472 S.W.2d

179 (Tex.Civ.App.—Corpus Christi 1971, writ dism'd),

contains this language:

'It is a general principle of law that a

statute or regulation must be definite

to be valid. Due process of law

in legislation requires definiteness or

certainty. If a regulation is incomplete,
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

vague, indefinite and uncertain, and it

forbids the doing of an act which is so

vague, that men of common intelligence

must necessarily guess at its meaning and

that such men differ as to application, it

violates the first essential of due process

of law.'

See 56 Am.Jur.2d Municipal Corporations, Sec. 367, p. 394.

Applying the above principles to the ordinance here in

question, we are of the opinion such ordinance is vague,

uncertain, indefinite and incomplete and, therefore, invalid.

It does not prohibit the building of a residence upon a

commercially zoned area, nor does it prohibit the erection

of a commercial building upon an area zoned residential. It

simply describes a certain area as commercial, and then it

declares all other property is zoned residential. It does not

describe what type or kind of residential structures may be

built. Some buildings, such as an apartment building, may

have both residential and commercial use.

[4] The ordinance does not provide any criteria or guidelines

for the city secretary to follow in granting or refusing

building permits; and, therefore, it must be implied that the

city secretary has discretionary authority without restriction

in issuing or denying such permits. An ordinance leaving

the question of issuing or denying building permits to the

arbitrary discretion or determination of the city secretary

without any rule or standard to follow is invalid. Spann v. City

of Dallas, 111 Tex. 350, 235 S.W. 513, 517, 19 A.L.R. 1387

(1921); Crossman v. City of Galveston, 112 Tex. 303, 247

S.W. 810, 815, 26 A.L.R. 1210 (1923); City of Houston v.

Freedman, 293 S.W.2d 515 (Tex.Civ.App.—Galveston 1956,

writ ref'd n.r.e.); 56 Am.Jur.2d Municipal Corporations, Sec.

369, p. 396.

The only provision (Sec. IV) in the ordinance for an

application for a building permit to come before the Town

Council results from the withholding of the issuance of a

building permit by the city secretary if she ‘shall conclude

that the applicant is not truthfully representing the cost of

construction . . .’

We overrule appellants' point one.

Appellants say by their point two that the trial court erred

in declaring Ordinance No. 1 invalid for failure of the Town

Council to provide for a Zoning Commission.

Art. 1011a, provides that, ‘For the purpose of promoting

health, safety, morals, and for the protection and preservation

of places and areas of historical and cultural importance

and significance, or the general welfare of the community,

the legislative body of cities and incorporated villages

is hereby empowered’ to regulate the use of property.

Art. 1011b, provides that the municipal legislative body

may divide the municipality into districts, and that ‘within

such districts it may regulate and restrict the erection,

construction, reconstruction, alteration, repair, or use of

buildings, structures, or land. All such regulations shall be

uniform for each class or kind of building throughout each

district, but the regulations in one district may differ from

those in other districts.’

Art. 1011f, reads in part as follows:

'In order to avail itself of the powers conferred by this

Act, such legislative body Shall appoint a commission, to

be known as the Zoning Commission, to recommend the

boundaries of the various original districts and appropriate

regulations to be enforced therein. Such Commission Shall

make a preliminary report and hold public hearings thereon

before submitting its final report, and such legislative body

Shall not hold its public *764 hearings or take action until it

has received the final report of such Commission; . . . Written

notice of all public hearings before the Zoning Commission

on proposed changes in classification Shall be sent to owners

of real property lying within two hundred (200) feet of the

property on which the change in classification is proposed,

such notice to be given, not less than ten (10) days before the

date set for hearing, to all such owners who have rendered

their said property for city taxes as the ownership appears on

the last approved city tax roll . . .' (Emphasis added.)

Appellants contend that Art. 974d—18, a validation statute

affecting cities and towns of 1,000 inhabitants or less, which

became effective in 1973, cured any failure by Coffee City

to appoint a Zoning Commission or give notice to property

owners and validated the act of the Town Council in enacting

Ordinance No. 1. Section 3 of Art. 974d—18 provides:

'All governmental proceedings and acts

performed by the governing bodies of

such cities and towns and all officers

thereof since their incorporation, or

attempted incorporation, are hereby in all

respects validated as of the respective

date of the proceedings and acts.'
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Since the provisions of Art. 1011f relating to a Zoning

Commission are made mandatory in character by using

the word Shall concerning the appointment of such a

Commission, it appears that the Town Council of Coffee

City, in order to avail itself of the power to enact a zoning

ordinance, was required to appoint a Zoning Commission. No

Zoning Commission was appointed; therefore, Ordinance No.

1 can be valid only if it is made valid by Art. 974d—18. We

have found no Texas case, nor have we been cited one, which

directly decides this question.

[5] Validating acts are remedial and are to be liberally

construed. Perkins v. State, 367 S.W.2d 140, 147 (Tex.1963).

It was held in State v. Bradford, 121 Tex. 515, 50 S.W.2d

1065, 1078 (1932) that:

'. . . where the act of some agent

of the state or of some agency which

must derive its power to act from the

Legislature is void for the reason that, at

the time the act was performed legislative

power therefor had not been given,

the Legislature may, in the absence

of constitutional prohibition, supply by

law operating retrospectively the power

originally lacking so that the act which

was originally void is valid and binding.'

The case of State v. Town of Bullard, 312 S.W.2d 435

(Tex.Civ.App.—Texarkana 1958, writ ref'd n.r.e.), cited by

Appellant cites, follows and quotes from Bradford.

Burch v. City of San Antonio, 518 S.W.2d 540 (Tex.1975)

held that the Legislature has the power to enact curative or

remedial legislation and that such legislation should be given

liberal construction.

There seems to be no question that if the Town Council of

Coffee City had attempted to appoint a Zoning Commission

or Board and there were irregularities in such procedure such

irregularities would be cured by the validation statute. And if

the Town Council had appointed a Zoning Commission and

then there had been some irregularity in the adoption of a

zoning ordinance it was the intention of the Legislature that

such irregularities would be cured. But it is difficult for us

to see an intention on the part of the Legislature to permit

the Town Council of Coffee City to ignore a mandatory

statute requiring the appointment of a Zoning Commission.

The Town Council had not availed itself of the powers to

enact a zoning ordinance, and we see no intention on the part

of the Legislature to permit the Council to totally ignore Art.

1011f.

In City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970),

the court held that a validation act like the one here did not

authorize the City Council to change a zoning classification

of property by resolution—that there was no intent seen on

the part of the Legislature to change a resolution into an

ordinance, and that the property remained as it had been zoned

before the resolution, and the resolution was not ‘validated’

into an ordinance.

*765 The case of City of Mason v. West Texas Utilities Co.,

237 S.W.2d 273 (Tex.1951), held that curative or remedial

statutes should generally ‘be given the most comprehensive

and liberal construction possible,’ but also held:

'The fundamental rule controlling the construction of a statute

is to ascertain the intention of the Legislature expressed

therein. That intention should be ascertained from the entire

act, and not from isolated portions thereof. This Court

has repeatedly held that the intention of the Legislature in

enacting a law is the law itself; and hence the aim and object of

construction is to ascertain and enforce the legislative intent,

and not to defeat, nullify, or thwart it . . . It is settled that

the intention of the Legislature controls the language used in

an act, and in construing such act the court is not necessarily

confined to the literal meaning of the words used therein, and

the intent rather than the strict letter of the act will control.'

See 62 C.J.S. Municipal Corporations s 432, pp. 827—8.

In City of Waco v. City of McGregor, 523 S.W.2d 649

(Tex.1975), McGregor maintained that a validating act, Art.

974d—12, validated its attempted annexation by ordinance

of a strip of land 261 feet wide down U.S. Highway 84

approximately five miles and then extending northerly to

include a 900 acre tract owned by McGregor and used as a

municipal airport. Under Art. 970a McGregor could annex

an unincorporated area contiguous to its corporate limits, not

a part of any other city, within its extraterritorial limits of

one-half (1/2) mile, ‘provided, however, that such limitation

shall not apply to the annexation of property owned by the

city annexing the same.’ The 900 acre McGregor airport was

within the extraterritorial limits of Waco. After stating that

‘curative statutes are liberally construed only to effectuate

the intent of the legislature in enacting them and not to other

ends', the court held that legislative intent must be applied,

and that the McGregor ordinance violated Art. 970a, and that

the validating statute, Art. 974d—12, ‘was not intended to
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

and did not validate the annexation of either noncontiguous or

nonadjacent territory,’ and that ‘the portion of the stem along

Highway 84 which intrudes into the exclusive extraterritorial

jurisdiction of Waco is not adjacent to McGregor and so

McGregor's attempted annexation of that portion of the stem

was not validated by Article 974d—12. Since that part of the

stem is not validly annexed, the airport is not contiguous to

McGregor and so McGregor's attempted annexation of the

airport was not validated by Article 974d—12.’ See City of

West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d

722 (Tex.1971).

This court held in Rogers v. Raines, 512 S.W.2d 725 (1974,

writ ref'd n.r.e.), that the same validating act as here involved,

Art. 974d—18, did not validate an attempted incorporation of

a town or village where the area sought to be incorporated did

not constitute a town or village.

Appellant concedes ‘that initially Ordinance No. 1 was not

legally enacted because of the failure of the town of Coffee

City to follow the various procedural requirements,’ but relies

entirely upon Art. 974d—18 to validate the ordinance.

In Bolton v. Sparks, 362 S.W.2d 946 at page 950 (Tex.1962),

the court said:

'The courts of this State have

held ordinances and amendments to

ordinances invalid where the express,

mandatory provisions of our zoning

statute have not been complied with. The

steps directed to be taken for notice and

hearing, when provided for in the law,

are intended for the protection of the

property owner, and are his safeguards

against the exercise of arbitrary power.

Each act required is essential to the

exercise of jurisdiction by the City

Council, and each must be rigidly

performed. . . .'

In Storm Bros. v. Town of Balcones Heights, 239 S.W.2d

842 (Tex.Civ.App.—El Paso 1950, writ ref'd n.r.e.), there

was some question raised about the procedure followed in

appointing the members of the Zoning Commission, and

the court held that the members of the Zoning Commission

having been appointed and being de facto *766 members

and serving as such, the validating act cured the defects

complained of.

[6] As is said in Lawton v. City of Austin, 404 S.W.2d

648 (Tex.Civ.App.—Austin 1966, writ ref'd n.r.e.), the police

powers of the State are exercised by the Legislature enacting

zoning laws, and the State has delegated some of this

legislative authority to municipalities. Arts. 1011a—1011j.

‘The Legislature, of course, may put such restrictions on and

provide the manner in which municipalities may exercise the

delegation of this authority as it sees fit.’ Lawton v. City of

Austin, supra.

63 Tex.Jur.2d Zoning, Sec. 69, p. 836, reads in part:

'In order to avail itself of the powers

conferred by the Zoning Enabling Act,

the governing body of a municipality

must appoint a zoning commission

to recommend the boundaries of the

various original districts and appropriate

regulations to be enforced therein.

The zoning commission must make

a preliminary report and hold public

hearings thereon before submitting its

final report, and the governing body

of the municipality may not hold its

public hearings or take action until it has

received the final report of the zoning

commission . . .'

The case of Peters v. Gough, 86 S.W.2d 515 (Tex.Civ.App.

—Waco 1935, no writ), opinion by Judge Alexander, held

that the statutory requirements in Arts. 1011a—1011j ‘are

intended for the protection of the property owner and are his

safeguards against an arbitrary exercise of the powers granted

by the statute. Hence, it would appear that such preliminary

steps required by the statute are essential to the exercise of

such jurisdiction.’ To the same effect is Tonroy v. City of

Lubbock, 242 S.W.2d 816 (Tex.Civ.App.—Amarillo 1951,

writ ref'd n.r.e.); City of Amarillo v. Wagner, 326 S.W.2d 863

(Tex.Civ.App.—Amarillo 1959, writ ref'd n.r.e.); City of San

Antonio v. Pope, 351 S.W.2d 269 (Tex.Civ.App.—Eastland

1961, no writ).

Some of the above cases point out that Art. 1011f provides

that, ‘In order to avail itself of the powers conferred by this

Act, such legislative body Shall appoint a commission,’ and

certain order steps must be taken.

In City of Kermit v. Spruill, 328 S.W.2d 219 (Tex.Civ.App.

—El Paso 1959, writ ref'd n.r.e.), the court said:
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

'While the legislature may validate

an ordinance passed by a municipal

corporation which would otherwise be

void, because of procedural defects

in the manner of enactment, notice

and public hearing, provided there is

no constitutional objection to an act

which would have embraced every power

exercised in the ordinance; it does not

follow that every such validating act

is sufficient to cure substantive defects

which render the application or subject

of the ordinance ambiguous, vague or

uncertain.'

In Richardson v. State, 199 S.W.2d 239 at page 244

(Tex.Civ.App.—Dallas 1946, writ ref'd n.r.e.), is found this

language:

'Acts curing defects in the incorporation

of municipalities under the general law

apply where a legal incorporation was

sought to be established—that is, where

the law was attempted to be followed, but

in some particulars was not followed, and

where, if the forms of law had not been

omitted, the incorporation would have

been valid. They do not apply where it

was sought to incorporate in violation of

law.'

We have concluded that it was not the intention of the

Legislature to validate Ordinance No. 1 of the town of

Coffee City when Coffee City had not availed itself of the

power to enact a zoning ordinance and that such failure

was a substantive defect. It had not appointed a Zoning

Commission nor had it attempted to do so. There was no

Zoning Commission to make a preliminary report or to hold

public hearings or to make a final report to the Town Council.

[7] We are of the opinion that the reasoning in Richardson v.

State, supra, pertaining to a validating act attempting to cure

defects in the incorporation of a municipality, is applicable

here. The analogy is that acts curing defects in zoning

ordinances *767 apply where a legal zoning ordinance

was sought to be established—that is, where the law was

attempted to be followed, and where, if the town of Coffee

City had availed itself of the power to zone and then certain

procedures had not been followed, the ordinance would have

been validated. The validating act did not apply where it was

sought to zone in violation of law.

[8] Accordingly, we find Ordinance No. 1 of the town of

Coffee City to be invalid because of the failure of the Town

Council to provide for a Zoning Commission. We overrule

appellants' point two.

Appellants' third point complains of the finding of the trial

court that Ordinance No. 1 is invalid for failure to give

personal notice to appellee's predecessor in title and for failure

to comply with the procedural requirements of Art. 1011d.

In view of disposition of points one and two, this point is

overruled.

Appellee presents a cross-point complaining of the failure

of the trial court to find Ordinance No. 1 invalid because

it does not have any substantial relationship to the public

health, safety, morals and general welfare of the public as

required by Art. 1011a. Appellee points out that the only

property in the town of Coffee City located on Highway

155 which was zoned commercial belongs to Mayor Phillips,

his brother (who is a member of the Town Council) and

to Mayor Phillips' mother, and that Highway 155 is heavily

traveled and carries substantially all of the traffic through the

town. Moreover, there are only three tracts of land within

the corporate limits located on Highway 155 and one of

these is owned by the Phillips family, one by Henderson

County used as a park, and the third tract is the tract known

as the Cora Bradley tract involved here. The Phillips' tract

had three residential houses located on it and was zoned

commercial while the Bradley tract had one house on it, and

it was zoned residential. Ordinance No. 1 provides for seven

(7) specifically described areas zoned commercial, and there

are six (6) alcoholic beverage stores located in these areas

which are scattered at random over the town. The record

reflects that the property in the town was zoned residential or

commercial according to the request of the individual owner.

In our opinion this does not show an attempt to regulate in

accordance with a comprehensive plan as required by Art.

1011c.

The witness, Street, a Council member at the time the

ordinance was adopted testified that, as zoned, Mayor Phillips

and his brother would have the only liquor store on Highway

155, and that this result was known and discussed at the time

the ordinance in question was adopted.
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

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Exhibit P—1 shows that the corporate limits of the town

consists mainly of long, narrow strips along public roads and

such strips have no regular shape and appear to be several

miles in length.

[9] A zoning ordinance must bear a substantial relation

to the public health, safety, morals or general welfare, and

if by the terms of the ordinance or as established by the

evidence as a matter of law it does not do so, then such

ordinance is void. Weaver v. Ham, 149 Tex. 309, 232 S.W.2d

704 (1950); City of Corpus Christi v. Jones, 144 S.W.2d

388, 397 (Tex.Civ.App.—San Antonio 1940, writ dism'd); 56

Am.Jur.2d Municipal Corporations, Sec. 438, p. 487.

[10] The record reveals that the Town of Coffee City was

incorporated on December 18, 1969; that the first election of

officers was held on January 7, 1970; that Ordinance No. 1

was passed January 19, 1970; and that a local option election

for the sale of all alcoholic beverages was held on February

22, 1970.

In Vol. 1, Antieau, Municipal Corporation Law, Sec. 516, p.

5—48, is found this language:

'When the judiciary finds it fairly obvious

that a municipal ordinance was motivated

by a desire to advance the interests of

a particular individual, corporation or

group, the courts have been quite willing

to invalidate the particular exercise

of municipal power as not having a

reasonable *768 tendency to protect the

public health, safety, morality or general

welfare.'

If it could be said the trial court erred in failing to find the

ordinance invalid because it bore no substantial relation to the

public health, safety, morals or general welfare, in view of

our disposition of this cause, it was harmless error. Rule 434,

T.R.C.P.

The judgment of the trial court is affirmed.

All Citations

535 S.W.2d 758

Footnotes

1 ‘ORDINANCE I.

'AN ORDINANCE FOR THE ISSUANCE OF BUILDING PERMITS PRESCRIBING REGULATIONS CONCERNING

THE SETBACK OF COMMERCIAL IMPROVEMENTS FROM HIGHWAY AND ROAD RIGHT-OF-WAY DEFINING

COMMERCIAL PROPERTY, AND RESIDENTIAL PROPERTY, PROVIDING THAT NO PERSON MAY BE ISSUED

A BUILDING PERMIT FOR A STRUCTURE TO BE USED FOR A LIQUOR OR PACKAGE STORE OR A STORE

FOR THE SALE OF BEER AND/OR WINE ON OR OFF PREMISES UNLESS SUCH PERSON SHALL HAVE BEEN

A RESIDENT OF COFFEE CITY, TEXAS, FOR AT LEAST ONE (1) YEAR PRIOR TO FILING SUCH APPLICATION,

PROVIDING THAT NO PERSON SHALL ENGAGE IN THE RETAIL LIQUOR BUSINESS OR IN THE BUSINESS OF

RETAILING BEER AND/OR WINE ON OR OFF PREMISES UNLESS SAID PERSON SHALL HAVE BEEN A RESIDENT

OF COFFEE CITY, TEXAS, FOR AT LEAST ONE (1) YEAR, ESTABLISHING FEES FOR BUILDING PERMITS AND

PROVIDING PENALTIES FOR THE VIOLATION OF THIS ORDINANCE IN ANY SUM NOT LESS THAN TEN ($10.00)

DOLLARS AND NOT MORE THAN ONE HUNDRED ($100.00) DOLLARS EACH AND EVERY DAY OR A FRACTION

THEREOF DURING WHICH THIS ORDINANCE IS VIOLATED IN DECLARING EACH SUCH DAY TO BE A SEPARATE

OFFENSE.

'BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF COFFEE CITY, TEXAS:

'SECTION I.

'This entire ordinance is and shall be deemed an exercise of the police power of the State of Texas, and of the Town of

Coffee City, for the public safety, comfort, convenience and protection of the town and citizens of said town, and all of

the provisions hereof shall be construed for the accomplishment of that purpose.

'SECTION II.

'The following property in the city limits of Coffee City, Texas, shall be and is hereby zoned commercial property:

(The metes and bounds description is omitted.)

'All of the rest of the property in the city limits of Coffee City, Texas, not hereinabove zoned as commercial property is

hereby zoned as residential property and shall hereafter be residential property.

'SECTION III.
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

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'No person shall erect any structure of any nature upon any commercial property within the limits of the town of Coffee

City, Texas, unless said structure is set back from the boundary of the highway or public road right-of-way a minimum

of forty (40) feet distance. No part of any structure shall extend or obtrude toward the highway or public road so as to

be within the forty feet limit herein prescribed.

'SECTION IV.

'No person shall commence the construction of any building or structure of any nature whatsoever within the limits of the

town unless that person has first obtained a building permit. Any person desiring a building permit shall make application

to the City Secretary and shall accompany said application by the fee hereinafter prescribed. The City Secretary shall

determine whether the proposed structure complies with all ordinances of the town and shall upon the receipt of the

proper fee then issue a building permit. Each application for a building permit shall state the cost of the construction

of the proposed building or other structure and the fee for such building permit shall be One Dollar ($1.00) for each

Thousand Dollars ($1,000.00). If the City Secretary shall conclude that the applicant is not truthfully representing the cost

of construction, she may withhold the issuance of the building permit, in which event the issuance of a permit shall be

determined by the town council at its next regular or called meeting.

'SECTION V.

'All applications for building permits shall specify the purpose for which the proposed structure is to be used. Such

application shall further state the name in full of the applicant, the age of applicant, and the length of residence in the

corporate city limits of Coffee City. No permit shall be issued to any person for the construction of a building to be used

as a package store or liquor store and no permit shall be issued to any person for the construction of a building to be

used as a place of business for the retail sale of beer and/or wine either on or off premises as such terms are defined

in the Liquor Control Act of the State of Texas unless the owner of such building shall have been a resident of the City

of Coffee City, Texas, for not less than one (1) year prior to the filing of such application. No person shall engage in the

retail sale of liquor or engage in the retail sale of beer and/or wine either on or off premises unless such person shall

have been a bona fide resident of Coffee City, Texas, for at least one (1) year prior to the commencement of business.

Nothing in this section, however, shall apply to or affect any person who is engaged in the business of retailing liquor,

beer and/or wine on or off premises on the effective date of this act in Coffee City, Texas, and this section further does

not affect any person who has heretofore made application for a building permit for the purpose of constructing a building

to be used as a package or liquor store or for retailing beer and/or wine for on or off premises consumption.

'SECTION VI.

'Any person, firm or corporation violating any of the provisions of this ordinance of (sic) failing to observe any of the

provisions hereof, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than

Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00) and each and every day or fraction of a day during

which this ordinance or any part thereof shall be violated shall be deemed a separate offense and punishable as such.

'SECTION VII.

'Each and every provision, paragraph, sentence and clause of this ordinance has been separately considered and passed

by the Town Council of the Town of Coffee City, and each said provision, paragraph, sentence and clause would have

been separately passed without any other provision, and if any provision, paragraph, sentence or clause hereof should

be ineffective, invalid, or unconstitutional for any cause, it shall not impair or affect the remaining portion nor any other

part hereof, but the valid portion shall be enforced in the manner as if it had been passed alone.

'SECTION VIII.

'The fact that the Town of Coffee City, Texas, now has no ordinance governing the matters regulated herein and the fact

that construction of building (sic) and other structures is not now regulated so as to protect the citizens of the Town of

Coffee City in their property and persons as aforesaid, creates an emergency, which is here and now declared, and this

ordinance shall take effect and be in force, from and after its passage and publication, as provided by law. ‘PASSED

AND APPROVED THIS THE 19TH DAY OF JANUARY, 1970.’

2 Among the reasons given for denying the request to rezone were:

(1) that the property is best suited for residential property, there being a residence close by; (2) that a tract of land adjacent

to the land sought to be rezoned has been set aside for a public park and the best use of the property would be to remain

residential since it is adjacent to and would be close to a public park; (3) that to rezone this property would constitute spot

zoning; (4) that to rezone the property would interfere with the best interest and welfare of the citizens of Coffee City,

Texas; (5) that the application to rezone the property is not in proper form and order; (6) a request was made when the

property was originally zoned for residential, that it be zoned residential; (7) there have been complaints from citizens in

Coffee City, Texas, to leave the property as residential property.
Coffee City v. Thompson, 535 S.W.2d 758 (1976)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

3 All references are to Vernon's Texas Annotated Civil Statutes unless otherwise noted.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

852 S.W.2d 489

Supreme Court of Texas.

DALLAS MERCHANT'S AND CONCESSIONAIRE'S

ASSOCIATION et al., Petitioners,

v.

CITY OF DALLAS, Respondent.

No. D–2159. | April 7, 1993. |

Rehearing Overruled June 3, 1993.

Merchants association challenged validity of home-rule

city's zoning ordinance dispersing location of alcohol-related

businesses. The 134th District Court, Dallas County, Anne

Ashby Packer, J., granted relief, and city appealed. The Court

of Appeals, 823 S.W.2d 347, reversed and rendered, and

further appeal was taken. The Supreme Court, Hightower,

J., held that ordinance of home-rule city prohibiting sale of

alcoholic beverages within 300 feet of residential areas was

preempted by Texas Alcoholic Beverages Code.

Reversed.

Enoch, J., dissented and filed opinion in which Hecht and

Cornyn, JJ., joined.

Attorneys and Law Firms

*489 Richard M. Lannen, Diane Snelson, Eric V. Moy#e,

Eric R. Cromartie, David C. Godbey, Andrew L. Siegel,

Dallas, for petitioners.

Dan Morales, Austin, John Rogers, Dallas, W. Reed

Lockhoof, Austin, Analeslie U. Muncy, Fort Worth, Angela

Washington, *490 Sam A. Lindsay, Dallas, for respondent.

OPINION

HIGHTOWER, Justice.

In this cause, we consider whether an ordinance of a

home-rule city prohibiting the sale of alcoholic beverages

within 300 feet of a residential area is preempted by

the Texas Alcoholic Beverage Code (TABC). In 1990,

the Dallas Merchants and Concessionaires Association, the

Texas Package Stores Association, and other individuals

(hereinafter “Merchants”) filed suit against the City of Dallas

(“City”) for declaratory and injunctive relief. The trial court

held that the ordinance was preempted by the TABC. The

court of appeals reversed. 823 S.W.2d 347. We hold that an

ordinance of a home-rule city prohibiting the sale of alcoholic

beverages within 300 feet of a residential area is preempted

by the TABC. Consequently, we reverse the judgment of the

court of appeals and affirm the judgment of the trial court.

On September 30, 1987, the Dallas City Council (“Council”)

passed Ordinance No. 19694 (“Ordinance”), which created

new zoning categories for South Dallas. The Ordinance

imposed a D–1 overlay on certain areas of South Dallas and

exempted certain areas that are outside of and do not effect

the residential areas of South Dallas. In this D–1 overlay area,

no business is allowed to sell or serve alcoholic beverages

within 300 feet of residentially zoned properties not located

on a freeway service road or other specified road. However,

a business in a D–1 overlay area may sell or serve alcoholic

beverages if the Council grants a specific use permit (SUP).

On October 12, 1988, the Council approved Resolution

883306, which established the guidelines for evaluating SUP

applications for selling or serving alcoholic beverages in areas

of South Dallas affected by the D–1 overlay. In June 1990,

the Merchants filed suit against the City.

Following a bench trial, the trial court rendered judgment

which, among other things, granted the declaratory and

injunctive relief requested by the Merchants. The trial court

concluded that the D–1 overlay provisions of the Ordinance

conflicted with the TABC and was void to that extent under

article XI, section 5 of the Texas Constitution.

1

 The trial

court also permanently enjoined the City from enforcing

the D–1 overlay provisions of the Ordinance. The court of

appeals reversed and rendered judgment.

I.

The Merchants argue that the Ordinance is preempted by the

TABC. We agree.

PREEMPTION OF HOME–RULE CITIES

[1] To determine whether the Ordinance is preempted by the

Texas Alcoholic Beverage Code, we must decide whether the

Legislature, by enacting and amending the TABC, preempted

ordinances of home-rule cities that prohibit the sale of

alcoholic beverages under these circumstances. Home-rule
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

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cities have broad discretionary powers, provided that no

ordinance “shall contain any provision inconsistent with the

Constitution of the State, or of the general laws enacted by the

Legislature of this State.” TEX. CONST. art. XI, § 5. Homerule cities possess the full power of self government and look

to the Legislature not *491 for grants of power, but only for

limitations on their power. MJR's Fare of Dallas v. City of

Dallas, 792 S.W.2d 569, 573 (Tex.App.—Dallas 1990, writ

denied).

[2] [3] [4] [5] An ordinance of a home-rule city that

attempts to regulate a subject matter preempted by a state

statute is unenforceable to the extent it conflicts with the state

statute. See City of Brookside Village v. Comeau, 633 S.W.2d

790, 796 (Tex.1982), cert. denied, 459 U.S. 1087, 103 S.Ct.

570, 74 L.Ed.2d 932 (1982). However, “the mere fact that the

legislature has enacted a law addressing a subject does not

mean the complete subject matter is completely preempted.”

City of Richardson v. Responsible Dog Owners, 794 S.W.2d

17, 19 (Tex.1990). “[A] general law and a city ordinance will

not be held repugnant to each other if any other reasonable

construction leaving both in effect can be reached.” City of

Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206 (1927).

Thus, if the Legislature chooses to preempt a subject matter

usually encompassed by the broad powers of a home-rule

city, it must do so with unmistakable clarity. See City of

Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.1964).

TEXAS ALCOHOLIC BEVERAGE CODE

[6] In 1977, the Legislature codified the Texas Liquor

Control Act into the TABC. 2 Prior to the codification,

several courts of appeals held that various ordinances of

home-rule cities prohibiting the sale of alcoholic beverages

were not preempted by the Texas Liquor Control Act.

See, e.g., City of Clute v. Linscomb, 446 S.W.2d 377

(Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Louder

v. Texas Control Board, 214 S.W.2d 336 (Tex.Civ.App.

—Beaumont 1948, writ ref'd n.r.e.); Eckert v. Jacobs,

142 S.W.2d 374 (Tex.Civ.App.—Austin 1940, no writ).

Subsequent to the codification, the Eleventh Court of Appeals

held that the TABC did not preempt ordinances prohibiting

the sale of alcoholic beverages. See Young, Wilkinson &

Roberts v. City of Abilene, 704 S.W.2d 380, 383 (Tex.App.

—Eastland 1985, writ ref'd n.r.e.) (“We hold that the

Constitution and general statutes of this State do not deny the

City [a home rule city] the right to regulate the area of the City

in which liquor could be sold.”); Abilene Oil Distributors v.

City of Abilene, 712 S.W.2d 644 (Tex.App.—Eastland 1986,

writ ref'd n.r.e.).

Subsequently, in 1987, the Legislature added section 109.57

to the TABC and further amended it in 1991 to read in part:

(a) Except as expressly authorized by this code, a

regulation, charter, or ordinance promulgated by a

governmental entity of this state may not impose stricter

standards on premises or businesses required to have a

license or permit under this code than are imposed on

similar premises or businesses that are not required to have

such a license or permit.

(b) It is the intent of the legislature that this code shall

exclusively govern the regulation of alcoholic beverages

in this state, and that except as permitted by this code,

a governmental entity of this state may not discriminate

against a business holding a license or permit under this

code.

(c) Neither this section nor Section 1.06 of this code affects

the validity or invalidity of a zoning regulation that was

formally enacted before June 11, 1987 and that is otherwise

valid, or any amendment to such a regulation enacted after

June 11, 1987 if the amendment lessens the restrictions

on the licensee or permittee or does not impose additional

restrictions on the licensee or permittee. For purposes of

this subsection, “zoning regulation” means any charter

provision, rule regulation, or other enactment governing

the location or use of buildings, other structures, and land.

TEX.ALCO.BEV.CODE ANN. § 109.57(a), (b) & (c)

(Vernon Supp.1992). The Legislature's intent is clearly

expressed in section 109.57(b) of the TABC—the

regulation of alcoholic beverages is exclusively governed

by the provisions of the TABC unless otherwise *492

provided. 3 TEX.ALCO.BEV.CODE ANN. § 109.57(b)

(Vernon Supp.1992). Section 109.57 clearly preempts an

ordinance of a home-rule city that regulates where alcoholic

beverages are sold under most circumstances. 4 Accordingly,

we hold that, to the extent of any conflict, the TABC preempts

the Ordinance. 5

II.

The City argues that if section 109.57 preempts an ordinance

of a home-rule city regulating where alcoholic beverages
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

are sold, sections 61.37, 109.31, 109.32, and 109.33 will be

rendered meaningless. 6 We disagree.

*493 [7] Section 109.57 expressly states that the

TABC will exclusively govern the regulation of

alcoholic beverages except as otherwise provided by the

TABC. 7 TEX.ALCO.BEV.CODE ANN. § 109.57 (Vernon

Supp.1992). Thus, the TABC allows ordinances of homerule cities to prohibit the sale of alcoholic beverages only

under limited circumstances. Pursuant to section 109.31, the

sale of liquor may be prohibited within residential areas

only by charter. TEX.ALCO.BEV.CODE ANN. § 109.31

(Vernon 1978). Under section 109.32, the sale of beer may

be prohibited within residential areas by ordinance or charter.

TEX.ALCO.BEV.CODE ANN. § 109.32 (Vernon 1978).

These options are still available to the City. However, in

this case, the Ordinance attempts to prohibit the sale of

liquor and beer in non-residential areas. An ordinance may

not prohibit the sale of beer in non-residential areas or

the sale of liquor in residential or non-residential areas.

See TEX.ALCO.BEV.CODE ANN. §§ 109.31–32 (Vernon

1978).

[8] Section 109.33 permits a county or city to prohibit

the sale of alcoholic beverages by a dealer whose place

of business is within 300 feet of a church, school,

or public hospital. TEX.ALCO.BEV.CODE § 109.33(a)

(Vernon Supp.1992). This option is still available to the

City. 8 However, in this case, the Ordinance attempts to

prohibit the sale of alcoholic beverages within 300 feet of a

residential area—not within 300 feet of a church, school or

public hospital.

[9] Likewise, section 61.37 does not conflict with section

109.57. Section 61.37 states that a city secretary will merely

certify whether an ordinance or charter prohibits the sale of

alcoholic beverages in the area where alcoholic beverages

will potentially be sold. TEX.ALCO.BEV.CODE ANN. §

61.37 (Vernon 1978). Under this section, certification is

properly withheld only if an ordinance or charter prohibits the

*494 sale of alcoholic beverages in a manner allowed by the

TABC. See TEX.ALCO.BEV.CODE ANN. § 61.37 (Vernon

1978).

We recognize the benefits of ordinances which prohibit

the sale of alcoholic beverages under these circumstances.

However, the express language of section 109.57 compels

this court to give effect to the Legislature's clear intent—

the Ordinance is preempted to the extent it conflicts with the

TABC. Therefore, we reverse the judgment of the court of

appeals and affirm the judgment of the trial court.

Dissenting opinion by ENOCH, J., joined by HECHT and

CORNYN, JJ.

ENOCH, Justice, dissenting.

The city of Dallas faces a severe impediment to its

redevelopment efforts for a portion of its community

(South Dallas) that suffers disproportionately from poverty

and crime. The Dallas Merchant's and Concessionaire's

Association, the Texas Package Stores Association, Inc.,

and the five grocery and liquor store owners 1 who are

petitioners in this Court all readily concede that alcoholrelated businesses are overly concentrated in certain areas of

the City of Dallas, that this concentration of such businesses

causes severe problems in these areas, and that the City

of Dallas adopted Ordinance No. 19694 to reduce this

concentration and alleviate these problems. Today the Court

adopts petitioners' argument that, regardless, the Legislature

requires these matters to only be addressed by the Texas

Alcoholic Beverage Commission in Austin, and not by the

Dallas City Council. As much as we all are concerned about

community restoration, I too would have joined the majority

if the law required this result. But, the Court's decision is not

mandated by the law. Therefore I dissent.

Ordinance No. 19694 prohibits the location of businesses

selling or serving alcoholic beverages within 300 feet of

residentially zoned property in certain areas of the city

without a special use permit. The issue before us is

whether this limited restriction on the location of alcoholrelated businesses is preempted by TEX.ALCO.BEV.CODE

§ 109.57(a) and (b). Section 109.57(a) provides that an

ordinance “may not impose stricter standards on premises

or businesses” required to be licensed under the Code than

on similar premises or businesses. (emphasis added). Section

109.57(b) states that “it is the intent of the legislature that

this code shall exclusively govern the regulation of alcoholic

beverages in this state, and that except as permitted by this

code, a governmental entity of this state may not discriminate

against a business holding a license or permit under this

code.” (Emphasis added.)

In my view, Ordinance No. 19694 does not “impose stricter

standards on alcohol-related businesses or premises” within

the meaning of section 109.57(a). Rather, it restricts the
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

location of such businesses in some areas under some

conditions. Nor does the ordinance attempt a “regulation of

alcoholic beverages.” The ordinance has nothing to do with

beverages. Nor does the ordinance “discriminate” against

alcohol-related businesses. It merely imposes a restriction

on their location to alleviate community problems which

petitioners concede such businesses cause. 2 This Ordinance

is not, on its face, inconsistent or in conflict with state law.

The ordinance is a reasonable supplement to state law to

address a local problem. Both should remain in effect.

Assuming for the sake of argument that “location” may be

considered a type of *495 “standard” governing businesses,

the law would still not mandate the outcome claimed by the

Court. The Local Government Code states:

If a zoning regulation adopted under

this subchapter ... imposes higher

standards than those required under

another statute or local ordinance

or regulation, the regulation adopted

under this subchapter controls. If the

other statute or local ordinance or

regulation imposes higher standards,

that statute, ordinance, or regulation

controls.

TEX.LOC.GOV'T CODE ANN. § 211.013(a) (Vernon 1988)

(emphasis added).

The Court's reading of section 109.57 of the Alcoholic

Beverage Code creates a direct conflict between it and section

211.013(a). 852 S.W.2d 489, 493 n. 7. Where possible, courts

are to construe language used in statutes so as to harmonize all

relevant laws, not create conflict. La Sara Grain Co. v. First

Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984);

State v. Standard Oil Co., 107 S.W.2d 550, 559 (Tex.1937).

Since it is possible, this court must construe the Local

Government Code and the Alcoholic Beverage Code so that

both provisions are given effect.

Section 109.57(a) prohibits a city from imposing stricter

standards on premises or businesses licensed under the

Alcoholic Beverage Code than are imposed on similar

premises or businesses not required to have a license.

TEX.ALCO.BEV.CODE ANN. § 109.57(a) (Vernon 1978)

(emphasis added). The Alcoholic Beverage Code defines

“premises” as “the grounds and all buildings, vehicles,

and appurtenances pertaining to the grounds, including any

adjacent premises if they are directly or indirectly under the

control of the same person.” TEX.ALCO.BEV.CODE ANN.

§ 11.49(a) (Vernon 1978). Section 11.49(a) refers only to the

physical premises; it does not define “premises” to include

the location of a licensed business. The Ordinance does

not attempt to regulate the physical premises. Additionally,

nothing in the Ordinance addresses how the business of

selling alcohol is to be conducted. The Ordinance only

regulates the location of the business.

The Court recognizes that a city ordinance will not be

held repugnant to a general law of the state “if any

other reasonable construction leaving both in effect can be

reached,” 852 S.W.2d at 491, (citing to City of Richardson

v. Responsible Dog Owners, 794 S.W.2d 17 (Tex.1990)).

Because a reasonable reading of these two statutes prevents

the conflict the reasoning of the Court creates, there is no

basis for restricting the City of Dallas' grant of authority to

promulgate zoning regulations under sections 211.001–.013

of the Local Government Code.

The Court's holding seriously hampers the ability of

municipalities to combat problems associated with the sale

of alcohol. The City of Dallas did not seek to prohibit the

sale of alcohol, merely to disperse the locations for its sale

in order to achieve a reduction in the problems associated

with the sale of alcohol such as increased crime, drinking

on premises, litter, loitering, public intoxication, urinating in

public, and harassment of children and elderly residents. 3

As petitioners admit, if cities cannot restrict the location of

alcohol-related businesses, then only the Texas Alcoholic

Beverage Commission can, in the course of granting licenses

to businesses. Yet it would be virtually impossible for the

Commission to obtain sufficient information in licensing

proceedings to determine whether, how and where to impose

such restrictions in the dozens of cities where they might

be used. Petitioners admit that the Commission has not

undertaken this responsibility to date, and it is farfetched

to think the Commission would even try. The suggestion

that the Legislature has decided that the Commission should

address the local problems involved here instead of home-rule

cities is most unlikely. Only those local planning, zoning and

legislative bodies have, or can be expected to have, a pulse on

the particular land use needs of their jurisdiction.

*496 I agree with the Court that “if the Legislature chooses

to preempt a subject matter encompassed by the broad

powers of a home-rule city, it must do so with unmistakable

clarity.” 852 S.W.2d at 491. Whatever may be said of section

109.57, it cannot seriously be argued that the statute makes
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

unmistakably clear that the Legislature has preempted the

City of Dallas from exercising its broad zoning powers to

improve living conditions within its borders. Preemption is

even less likely when one considers the result.

I would affirm the judgment of the court of appeals, thus I

respectfully dissent.

HECHT and CORNYN, JJ., join in this dissenting opinion.

All Citations

852 S.W.2d 489

Footnotes

1 In the findings of fact, the trial court stated in part:

14. None of the SUPs filed by any Establishment within the areas zoned D–1 by Ordinance 19694 had been granted.

15. The criteria adopted by the Dallas City Council make it virtually impossible for any existing Establishment to

qualify for a SUP.

16. Ordinance 19694 conflicts with and is preempted by the Texas Alcoholic Beverages Code (“TABC”), in that: the

Ordinance and the SUP standards impose location restrictions that are inconsistent with the TABC; the Ordinance

and the SUP standards attempt to regulate the sale of alcoholic beverages, other than beer, by ordinance; the

Ordinance and the SUP standards discriminate against establishments holding permits issued under the TABC, and;

the Ordinance and the SUP standards impermissibly attempt to disenfranchise the choice of the voters of the areas

affected by Ordinance 19694 in violation of the Local Option provisions and procedures set forth in the TABC.

2 “[The TABC] is intended as a recodification only, and no substantive change in the law is intended by this Act.” Acts

1977, 65th Leg., ch. 194, § 7.

3 While the dissent contends that the legislature did not deny home rule cities the ability to regulate with unmistakable

clarity under these circumstances, how much more clear must the legislature be than Section 109.57(b), which states:

“It is the intent of the legislature that this code [TABC] shall exclusively govern the regulation of alcoholic beverages in

this state....” TEX.ALCO.BEV.CODE ANN. § 109.57(b) (Vernon Supp.1992). In addition, Senator McFarland, who was a

member of the Conference Committee on H.B. 1652 which enacted Section 109.57, indicated that Section 109.57 was

intended to clarify that the TABC governed the location of licensees and permittees and that cities could only regulate

the location of licensees and permittees in the instances provided by the TABC. Specifically, Senator McFarland stated,

[I]t [Section 109.57] says except as authorized by this code [a governmental entity may not regulate the location of

a business holding a license or a permit] and there's numerous provisions throughout the code which governmental

entities have the authority by zoning or other ordinances, to limit the location of businesses or the type of businesses

selling alcoholic beverage.

Debate of conference committee report on Tex.H.B. 1652 on the floor of the Senate, 70th Leg. (June 1, 1987) (colloquy

between Senators McFarland and Washington).

4 Section 109.57(d) of the TABC states:

(d) This section does not effect the authority of a governmental entity to regulate, in a manner as otherwise permitted

by law, the location of:

(1) a massage parlor, nude modeling studio, or other sexually oriented business; or

(2) an establishment that derives 75 percent or more of the establishment's gross revenue from the on-premise sale

of alcoholic beverages.

Because none of the parties assert that the Ordinance implicates this provision, we express no opinion concerning

its applicability.

Since the following cases pre-date the enactment of section 109.57, they are not applicable when determining the

preemptive effect of section 109.57. See Abilene Oil Distributors v. City of Abilene, 712 S.W.2d 644 (Tex.App.—

Eastland 1986, writ ref'd n.r.e.); Young, Wilkinson & Roberts v. City of Abilene, 704 S.W.2d 380 (Tex.App.—Eastland

1985, writ ref'd n.r.e.); T & R Assoc., Inc. v. City of Amarillo, 688 S.W.2d 622, 625 (Tex.Civ.App.—Amarillo, writ

ref'd n.r.e.); Massengale v. City of Copperas Cove, 520 S.W.2d 824, 829 (Tex.Civ.App.—Waco 1975, writ ref'd n.r.e.;

Derkard v. City of Port Lavaca, 491 S.W.2d 748, 751 (Tex.Civ.App.—Corpus Christi 1973, no writ); City of Clute v.

Linscomb, 446 S.W.2d 377 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Discount Liquors No. 2, Inc. v. Texas

Liquor Control Board, 420 S.W.2d 422, 423, 425 (Tex.Civ.App.—Amarillo 1967, writ ref'd n.r.e.); Louder v. Texas
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Liquor Control Board, 214 S.W.2d 336 (Tex.Civ.App.—Beaumont 1948, writ ref'd n.r.e.); Eckert v. Jacobs, 142 S.W.2d

374 (Tex.Civ.App.—Austin 1940, no writ).

5 The dissent argues that if this court holds that the TABC preempts an ordinance regulating where alcoholic beverages

are sold, sellers of alcoholic beverages will not have to comply with any city ordinance. This argument is without merit.

Section 109.57(a) provides that an ordinance may not impose stricter standards on alcohol related businesses than on

non-alcohol related businesses. TEX.ALCO.BEV.CODE § 109.57(a) (Vernon Supp.1992). For example, under section

109.57(a), an ordinance requiring all businesses with the same kind of premises to have a fire extinguisher on their

premises would not violate section 109.57(a). On the other hand, an ordinance requiring an alcohol related business to

have two fire extinguishers and only required a non-alcohol related business with the same kind of premises to have one

fire extinguisher would violate section 109.57(a).

6 Section 61.37 reads in pertinent part:

(a) The County Clerk of the county in which an application for a license is made shall certify whether the location or

address given in the application is in a wet area and whether the sale of alcoholic beverages for which the license

is sought is prohibited by any valid order of the commissioners court.

(b) The city secretary or clerk of the city in which an application for a license is made shall certify whether the location

or address given in the application is in a wet area and whether the sale of alcoholic beverages for which the license

is sought is prohibited by charter or ordinance.

TEX.ALCO.BEV.CODE ANN. § 61.37 (Vernon 1978). Section 109.31 reads:

A city by charter may prohibit the sale of liquor in all or part of the residential sections of the city.

TEX.ALCO.BEV.CODE ANN. § 109.31 (Vernon 1978). Section 109.32 reads in pertinent part:

(a) An incorporated city or town by charter or ordinance may:

(1) prohibit the sale of beer in a residential area; and

(2) regulate the sale of beer and prescribe hours when it may be sold, except a city or town may not permit the sale

of beer when its sale is prohibited by this code.

TEX.ALCO.BEV.CODE ANN. § 109.32 (Vernon 1978). Section 109.33 reads in pertinent part:

(a) The commissioners court of a county may enact regulations applicable in areas in the county outside an

incorporated city or town, and the governing board of a city or town may enact regulations applicable in the city or

town, prohibiting the sale of alcoholic beverages by a dealer whose place of business is within 300 feet of a church,

public school, or public hospital.

TEX.ALCO.BEV.CODE ANN. § 109.33 (Vernon Supp.1992).

7 The dissent incorrectly asserts that Section 211.013 of the Local Government Code allows a home rule city to impose

higher standards upon licensees and permittees. This conclusion is erroneous because of Section 109.57(a) of the TABC.

Section 109.57(a) states than an ordinance promulgated by a governmental entity may not impose stricter standards on

premises or businesses of a permittee than on similar premises and businesses not required to have a license or permit.

The Ordinance imposes a stricter standard than allowed by the TABC, specifically, by regulating the location of businesses

required to have licenses or permits under the TABC in circumstances not allowed by the TABC. Section 109.57(a) was

by its terms enacted to exempt licensees and permittees from Section 211.013 of the Local Government Code.

The application of the doctrine of expressio unius est exclusio alterius further demonstrates the weakness of the

dissent's conclusion that the City may regulate in this instance. That doctrine provides that the inclusion of a specific

limitation excludes all others. Royer v. Ritter, 531 S.W.2d 448, 449 (Tex.Civ.App.—Beaumont 1976, writ ref'd n.r.e.).

Sections 109.31–33 and 109.57(d) provide specific instances when a governmental entity, such as a home-rule city,

may regulate the location of an alcohol related business. Thus, by expressly stating under what circumstances a

governmental entity may regulate the location of an alcohol related business, it follows that there are no other instances

when a governmental entity may regulate the location of an alcohol related business. The parties do not assert and

we can not find any applicable grant of power to governmental entities to regulate the location of the sale of alcohol

in this case.

8 In addition to regulating alcoholic beverages pursuant to sections 109.31–33, a city may make recommendations or

protest the issuance of a permit by the Texas Alcoholic Beverage Commission. See TEX.ALCO.BEV.CODE ANN. §

11.41(a) (Vernon 1978).

1 The five business owners are Solomon Tadesse, d/b/a S & M Grocery, Nguyen Ha Lam, d/b/a M & D Liquor, Son Ngoc

Nguyen, d/b/a Bingo Liquor, Youg Suk Bragdon, d/b/a K & B Grocery, and Thung Vam Tarn, d/b/a Lee's Grocery.

2 This is not to say that any ordinance restricting the location of alcohol-related businesses would be allowed by state law.

Obviously, an ordinance that prohibited the location of such businesses within a much larger distance from residential
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

property might have the effect of eliminating those businesses altogether. Such an ordinance would conflict with state

law. But an ordinance which is both written and applied to impose a limited restriction on location for a valid purpose

does not conflict with section 109.57.

3 Several community leaders in the South Dallas/Fair Park area testified that these problems were exacerbated by the

excessive concentration of alcohol related businesses in the area.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Hager v. Romines, 913 S.W.2d 733 (1995)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

913 S.W.2d 733

Court of Appeals of Texas,

Fort Worth.

Anthony Ray HAGER, Individually and

d/b/a Hager's Flying Service, Appellant,

v.

Thomas R. ROMINES and

Betty Romines, Appellees.

No. 2–95–066–CV. | Dec. 28, 1995.

Farmers whose crop was allegedly damaged by aerial

applicator's crop dusting of nearby field sued applicator for

negligence. The 97th District Court, Clay County, Roger E.

Towery, J., denied defendant's motion for instructed verdict

and awarded damages on jury verdict for plaintiffs. Defendant

appealed. The Court of Appeals, Livingston, J., held that

plaintiffs could not recover absent evidence that defendant did

not act as reasonably prudent aerial applicator.

Reversed and rendered.

Attorneys and Law Firms

*734 Stephen C. Howell, Stephen L. Tatum, Geffrey W.

Anderson, Brown, Herman, Scott, Dean & Miles, L.L.P., Fort

Worth, for appellant.

Ron Poole, William K. Altman & Associates, Wichita Falls,

for appellee.

Before LIVINGSTON, BRIGHAM and HOLMAN, JJ.

OPINION

LIVINGSTON, Justice.

Thomas and Betty Romines grew tomatoes and jalapeños

on one-half acre of land in Clay County, Texas. When their

plants began dying from exposure to herbicide, they sued

Hager Flying Service and Anthony Ray Hager, who had

applied herbicide from a crop dusting airplane to a nearby

field the same day the Romineses noticed that their tomato

plants were sick. At trial, the court denied Hager's motion

for instructed verdict. The jury awarded Thomas and Betty

Romines $45,000 as damages. Hager appeals in five points

of error. We sustain point of error one, reverse the judgment

entered for the Romineses, and render judgment for Hager.

[1] In his first point of error, Hager argues that the trial

court erred when it overruled his motion for instructed verdict

because the Romineses presented no evidence of a violation

of the standard of care applicable to their claim of negligence.

The Romineses claimed that Hager was negligent in his

application of herbicide to a nearby field and that their tomato

and jalapeño plants were damaged because of the negligence.

In reviewing whether the trial court erred in refusing to

instruct a verdict in Hager's favor, our task is to determine

whether: (1) a specified defect in the opponent's pleading

makes it insufficient to support a judgment; (2) the evidence

conclusively establishes the right of the movant to judgment

or negates the right of the opponent; or (3) the evidence

is insufficient to raise a fact issue that must be established

before the opponent is entitled to judgment. Boswell v. Farm

& Home Sav. Ass'n, 894 S.W.2d 761, 768 (Tex.App.—Fort

Worth 1994, writ denied); Rowland v. City of Corpus Christi,

620 S.W.2d 930, 932–33 (Tex.Civ.App.—Corpus Christi

1981, writ ref'd n.r.e.); see also TEX.R.CIV.P. 268.

[2] [3] To avoid an instructed verdict, the Romineses had

to offer evidence for each element of their negligence claim.

The elements of a negligence claim are: (1) the existence

of a duty on the part of one party to another; (2) a breach

of the duty; (3) damages to whom the duty was owed; and

(4) causation. See Rosas v. Buddies Food Store, 518 S.W.2d

534, 536 (Tex.1975). For breach of duty, they must have

presented evidence that Hager did not exercise the care that

a reasonably prudent aerial applicator would have exercised

under the same or similar circumstances. See Parkway Co.

v. Woodruff, 857 S.W.2d 903, 919 (Tex.App.—Houston [1st

Dist.] 1993, no writ), aff'd as modified, 901 S.W.2d 434

(Tex.1995). We find that the standard of care in the aerial

*735 application of herbicide, as well as the violation

of such standard, must be established by expert testimony.

Expert testimony is necessary when the alleged negligence

is of such a nature that it is not within the experience of a

layman. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). Not

only is flying an airplane not within the realm of experience

of the ordinary, prudent person or juror, 1 applying herbicide

and pesticide aerially requires use of specialized equipment

and techniques that are not familiar to the ordinary person.

[4] [5] Thus, the question before us is whether the

Romineses presented sufficient evidence of breach of the duty

of care to raise a fact issue on that element. We hold that
Hager v. Romines, 913 S.W.2d 733 (1995)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

they did not. Hager testified as an expert about the standard

of care applicable to aerial applicators. He also testified that

he had not breached that standard of care. A party may give

expert testimony if the party is qualified to do so. See, e.g.,

Tijerina v. Wennermark, 700 S.W.2d 342, 347 (Tex.App.

—San Antonio 1985, no writ), overruled on other grounds

by Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex.1989).

Further, if expert testimony is required on an issue, and

that expert testimony is uncontroverted, the testimony is

considered conclusively established. Mack v. Moore, 669

S.W.2d 415, 419 (Tex.App.—Houston [1st Dist.] 1984, no

writ). The Romineses needed to controvert Hager's testimony

with their own expert testimony so that Hager's testimony

about his compliance with the standard of care would not be

conclusive.

[6] The Romineses called two expert witnesses, Floyd

Mahaney and Ricks Pluenneke. Mahaney was a herbicide and

pesticide specialist with the Texas Department of Agriculture

who testified about the effect of herbicide on tomato plants.

He also testified about a possible “drift pattern” between the

Romineses' tomato field and the field to which Hager had

applied herbicide. He concluded that herbicide might have

drifted because weeds between the two fields showed effects

from herbicide. However, he could not identify the herbicide

that hurt the tomatoes as Grazon P + D, the herbicide that

Hager had sprayed. He did not testify about herbicide effects

on jalapeño plants. Also, he did not give any testimony that

showed that Hager had not acted as a reasonably prudent

aerial applicator.

Pluenneke was an expert on plant physiology and agronomy.

He testified that Hager had caused the damage to the tomato

and jalapeño plants based on his knowledge of the plants

involved and of the herbicide. However, this is not testimony

that Hager had not acted as a reasonably prudent aerial

applicator. In fact, Pluenneke did not even know whether

Hager had applied the herbicide with a coarse or fine spray,

which could affect the herbicide's ability to drift.

On appeal, the Romineses claim that Hager's testimony on

cross-examination shows that he violated the standard of care.

The Romineses' attorney asked Hagar, “[W]ould you agree

that, if it was some Grazon P + D out of your airplane on

June 3rd, 1990, that got on the Romines tomato field, that you

would have been negligent?” Hagar agreed. The Romineses

say that this is expert testimony of a violation of the standard

of care because they proved that it was Hager's Grazon P +

D that caused the damage to the tomato and jalapeño plants.

Two witnesses observed from one-half mile away that Hager's

crop dusting airplane flew over the Romineses' home. Two

witnesses testified that they could smell the spray even though

they were upwind from the field that Hager sprayed. One

testified that he could see “stuff” drifting in the air. However,

independent of causation evidence, Hager's testimony does

not indicate that he did not adhere to the standard of care.

The Romineses' argument is an attempt to bootstrap lay

witnesses' testimony on causation into expert testimony on

a violation of the standard of care. No expert witness ever

testified that Hager had violated the standard of care. Because

the Romineses failed to present evidence on a breach of the

standard *736 of care, their claim should not have been

submitted to a jury.

Accordingly, we reverse the judgment of the trial court and

render judgment that the Romineses take nothing against

Hager.

All Citations

913 S.W.2d 733

Footnotes

1 McKinney v. Air Venture Corp., 578 S.W.2d 849, 851 (Tex.Civ.App.—Fort Worth 1979, writ ref'd n.r.e.).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Jackson v. Neal, Not Reported in S.W.3d (2009)

2009 WL 140507

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2009 WL 140507

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

Court of Appeals of Texas,

Corpus Christi-Edinburg.

Phillip JACKSON and Mary Jackson, Appellants,

v.

Mayor Samuel Loyd NEAL and District

Attorney Carlos Valdez, Appellees.

No. 13-07-00164-CV. | Jan. 22, 2009.

On appeal from the 28th District Court of Nueces County,

Texas, Nanette Hasette, J.

Attorneys and Law Firms

Phillip Jackson, Mary J. Jackson, Corpus Christi, TX, pro se.

Jenny C. Boyd, Asst. County Atty., Carol Estes Bray, Asst.

City Atty., Corpus Christi, TX, for Appellees.

Before Chief Justice VALDEZ and Justices RODRIGUEZ

and BENAVIDES.

MEMORANDUM OPINION

Memorandum Opinion by Justice RODRIGUEZ.

*1 Appellant, Phillip Jackson, a prison inmate, appeals,

pro se, on behalf of himself and his mother, appellant

Mary Jackson. The Jacksons filed suit in DeWitt County

against appellees, former Mayor Samuel Loyd Neal and

District Attorney Carlos Valdez. 1By their suit, the Jacksons

challenged civil forfeiture proceedings. The trial court

granted summary judgment in favor of Neal and dismissed,

without prejudice, the Jacksons' claims under chapter 14 of

the Texas Civil Practice and Remedies Code. SeeTEX. CIV.

PRAC. & REM.CODE ANN. § 14.001-.014 (Vernon 2002)

(setting out the process for certain inmate litigation). Eight

issues are presented for our review. We affirm.

I. Background

A. Order Transferring Venue

Valdez filed a motion to transfer venue from DeWitt County

to Nueces County asserting that DeWitt County was not a

county of proper venue because the Jacksons pleaded no facts

to support venue there. Valdez pleaded facts supporting venue

in Nueces County under the general venue statute and also

urged that transfer of venue was for the convenience of the

parties. See id. § 15.002(a)(1)-(3), (b) (Vernon 2002). Without

challenging the facts relied upon by Valdez, the Jacksons

argued in their response that venue was proper in DeWitt

County because they would be prejudiced by the transfer.

Prior to submission of the motion, Phillip requested that a

bench warrant be issued. It appears from the record, however,

that no hearing was held and, on November 16, 2006, after

considering the motion by written submission, the trial court

transferred the case to Nueces County. The order did not

specify the grounds upon which the transfer was granted.

On December 19, 2006, the Jacksons appealed the order

transferring venue. In March 2007, this Court dismissed

the appeal for lack of jurisdiction. See Jackson v. Neal,

No. 13-06-700-CV, 2007 Tex.App. LEXIS 1786, *2, 2007

WL 687289 (Tex.App.-Corpus Christi Mar.8, 2007, no

pet.)(mem.op.) (per curiam) (dismissing the appeal because

the law does not provide for judicial review of an

interlocutory order transferring venue) (citing TEX. CIV.

PRAC. & REM.CODE ANN. § 15.064 (Vernon 2002);

TEX.R.APP. P. 42.3(a)).

B. Order Granting Neal's

Motion for Summary Judgment

Neal filed a motion for summary judgment and severance.

In his supporting affidavit, Neal set out that he had neither

involvement in nor knowledge of the seizure or forfeiture

proceedings relevant to this case. The Jacksons responded

arguing that Neal was the “head of” and the “key factor in” the

civil conspiracy, “was directly involved with the theft, grand

theft and fraud,” and entered “into [an] agreement with all

other defendant[s] to take [their] property by a[n] illegal and

unconstitutional manner.”The Jacksons attached no evidence

to their response. On February 8, 2007, the trial court granted

the motion, entered summary judgment against the Jacksons,
Jackson v. Neal, Not Reported in S.W.3d (2009)

2009 WL 140507

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

and ordered that they take nothing as to all claims against

Neal. The trial court did not sever the claims against Neal.

C. Order Granting Valdez's Motion to Dismiss

*2 Valdez filed a motion to dismiss and to assess costs.

SeeTEX. CIV. PRAC. & REM.CODE ANN. § 14.001-014

(Vernon 2002). Valdez argued that Phillip did not comply

with mandatory declaration requirements of section 14.004(a)

and failed to file a certified copy of his trust account

statement in accordance with section 14.006(f).See id. §§

14.004(a); 14.006(f); see also id. § 14.003(a)(2), (b)(4).

Philip filed his response asserting that he had fulfilled all

chapter 14 requirements. On February 8, 2007, following a

hearing where Mary appeared but Phillip did not, 2 the trial

court granted Valdez's motion and ordered that the case be

dismissed without prejudice. The trial court denied Valdez's

request to assess fees. This appeal ensued.

II. The Pro Se Appellants

As parties, Phillip and Mary may each appear in his or her

own person, and each may prosecute or defend his or her own

rights. SeeTEX.R. CIV. P. 7 (“Any party to a suit may appear

and prosecute or defend his rights therein, either in person or

by an attorney of the court.”). Because they are not attorneys,

however, they may not represent others. SeeTEX. GOV'T

CODE ANN. § 81 .102(a) (Vernon 2005) (setting out state

bar membership requirements); Jimison v. Mann, 957 S.W.2d

860, 861 (Tex.App.-Amarillo 1997, no writ) (per curiam)

(striking documents filed by a layperson having no authority

to file them on behalf of another); see also Shafer v. Frost

Nat'l Bank, No. 14-06-00673-CV, 2008 Tex.App. LEXIS

3676, ----10-14, 2008 WL 2130418 (Tex.App.-Houston [14th

Dist.] May 22, 2008, no pet.)(mem.op.) (concluding that a pro

se plaintiff unlicensed to practice law may not represent or

defend the rights of other pro se plaintiffs); Clary v. Cockrell,

No. 12-02-00319-CV, 2004 Tex.App. LEXIS 5983, *2, n.

1, 2004 WL 1475103 (Tex.App.-Tyler June 30, 2004, no

pet.)(mem. op. designated for publication) (providing that pro

se inmate Clary, who is not an attorney, may not represent

other named parties).

Phillip is not an attorney and may not represent or defend the

rights of Mary. Therefore, we consider Phillip's arguments

only to the extent the arguments relate to his own claims

or rights. We do not address any arguments made on

behalf of Mary. Moreover, Mary neither filed a brief nor

adopted Phillip's appellate brief and reply briefs. With these

limitations in mind, we proceed to the merits of the appeal.

III. Venue Issues

By issues five, six, and seven, Phillip challenges the order

transferring venue from DeWitt County to Nueces County.

He asserts that venue was proper in DeWitt County and that

he was prejudiced when the case was transferred to Nueces

County.

A. Applicable Law and Standard of Review

Section 15.002 of the civil practice and remedies code

provides as follows:

(a) Except as otherwise provided by this subchapter or

Subchapter B or C, all lawsuits shall be brought:

(1) in the county in which all or a substantial part of the

events or omissions giving rise to the claim occurred;

*3 (2) in the county of defendant's residence at the time

the cause of action accrued if defendant is a natural

person;

(3) in the county of the defendant's principal office in this

state, if the defendant is not a natural person; or

(4) if Subdivisions (1), (2), or (3) do not apply, in the county

in which the plaintiff resided at the time of the accrual

of the cause of action.

(b) For the convenience of the parties and witnesses and in

the interest of justice, a court may transfer an action ...

where the court finds:

(1) maintenance of the action in the county of suit would

work an injustice to the movant considering the movant's

economic and personal hardship;

(2) the balance of interests of all the parties predominates in

favor of the action being brought in the other county; and

(3) the transfer of the action would not work an injustice

to any other party.
Jackson v. Neal, Not Reported in S.W.3d (2009)

2009 WL 140507

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(c) A court's ruling or decision to grant or deny a transfer

under Subsection (b) is not grounds for appeal or

mandamus and is not reversible error.

TEX. CIV. PRAC. & REM.CODE ANN. § 15.002 (Vernon

2002).“A party who seeks to maintain venue of the action in

a particular county” in reliance on section 15.002, the general

venue rule of the civil practice and remedies code, “has the

burden to make proof ... that venue is maintainable in the

county of suit.”TEX.R. CIV. P. 87(2).“A party who seeks

to transfer venue of the action to another specified county”

under section 15.002 or under mandatory venue sections

15.011-15.017, “has the burden to make proof ... that venue

is maintainable in the county to which transfer is sought.”See

id.The trial court shall transfer venue to a county of proper

jurisdiction if the county in which the action is pending is not

a proper county. TEX. CIV. PRAC. & REM.CODE ANN. §

15.063(1) (Vernon 2002).

In determining whether venue was proper, we must consider

the entire record. Id.§ 15.064(b); Wilson v. Tex. Parks &

Wildlife Dep't, 886 S.W.2d 259, 260-62 (Tex.1994). If there

is any probative evidence in the record demonstrating venue

was proper in the county where judgment was rendered, we

must uphold the trial court's ruling. See Bonham State Bank

v. Beadle, 907 S.W.2d 465, 471 (Tex.1995); Morris v. Tex.

Parks & Wildlife Dep't, 226 S.W.3d 720, 723 (Tex.App.-

Corpus Christi 2007, no pet.). Furthermore, we take as true

[a]ll venue facts, when properly pleaded, ... unless specifically

denied by the adverse party.” TEX.R. CIV. P. 87(3).

B. Analysis

1. Proper Venue

Valdez argues, and we agree, that Phillip pleaded no facts

to support venue in DeWitt County under the general venue

statute and, thus, did not meet his burden of proof that venue

was maintainable in the county of suit. See id. 87(2)(a).

Valdez did, however, meet his burden of proving that venue

is maintainable in Nueces County, Texas, the county to which

transfer is sought. See id.

*4 Valdez set out in his motion to transfer that venue is

proper in Nueces County because (1) all or a substantial

part of the events or omissions giving rise to Phillip's claim

occurred in Nueces County, (2) defendants Neal and Valdez,

natural persons, resided in Nueces County at the time the

cause of action, if any, accrued, and (3) the principal offices

of all identified defendants were in Nueces County. SeeTEX.

CIV. PRAC. & REM.CODE ANN. § 15.002(a)(1)-(3). Phillip

did not specifically deny any of the sworn venue facts asserted

by Valdez; therefore, Valdez's venue facts must be considered

true. TEX.R. CIV. P. 87(3). And, because subsections (1),

(2), and (3) apply to this case, subsection (4) does not, and

Phillip's residence is not a factor in determining proper venue.

SeeTEX. CIV. PRAC. & REM.CODE ANN. § 15.002(a)(1)-

(4). Thus, the facts undisputably show proper venue in Nueces

County.

2. Convenience

In this case, Valdez also asserted convenience as a basis

for transfer. The trial court granted the transfer without

specifying the grounds. “Generally, we must affirm such

general orders if any ground in the accompanying motion is

meritorious.”Garza v. Garcia, 137 S.W.3d 36, 37 (Tex.2004).

When a motion asserts convenience as well as other grounds,

the statute precludes reversal on convenience grounds.

SeeTEX. CIV. PRAC. & REM.CODE ANN. § 15.002(c).

Because the motion here asserted convenience as one ground,

and the statute precludes reversal of any ruling made on

convenience grounds, we must affirm the transfer. Garza,

137 S.W.3d at 39 (“We acknowledge the court of appeals'

concern that the usual presumption in favor of nonspecific

orders will make many venue orders ‘immune from review.’

But in transfer orders based on convenience, that appears to

have been precisely the Legislature's intent.”).

3. Mandatory Venue

Phillip argues that section 15.019, a mandatory venue section

for inmate litigation, applies. SeeTEX. CIV. PRAC. &

REM.CODE ANN. § 15.019 (Vernon 2002) (“[A]n action

that accrued while the plaintiff was housed in a facility

operated by or under contract with the Texas Department

of Criminal Justice shall be brought in a county in which

the facility is located.”). This argument, however, was not

raised in the trial court and is, therefore, waived. See In

the Interest of B.L.D., 113 S.W.2d 340, 350-52 (Tex.2008).

Moreover, this provision does not apply to Phillip. Section

15.019 provides for venue in the county of incarceration if

the cause of action accrued while the inmate was incarcerated

in that county. SeeTEX. CIV. PRAC. & REM.CODE ANN.
Jackson v. Neal, Not Reported in S.W.3d (2009)

2009 WL 140507

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

§ 15.019. The facts show that Phillip, although an inmate in

DeWitt County when the lawsuit was filed, was not an inmate

in DeWitt County at the time the cause of action allegedly

arose. Thus, this argument fails.

4. Fair and Impartial Trial

Phillip also argues that transfer of the case to Nueces County

prejudiced him because Valdez is the “most powerful man

in Nueces County, Texas” and he “would not receive a fair

proceeding.”Phillip and Mary each filed affidavits stating that

a transfer of venue to Nueces County would prejudice both

plaintiffs and that there [was] a combination against [them]

instigated by influntial [sic] persons by reason of which [they

could not] expect a fair and impartial trial ... in ‘Nueces

County.’ ” The assertions made by Phillip track the language

of Texas Rule of Civil Procedure 257. SeeTEX.R. CIV. P.

257. Phillip's use of this rule, however, is misplaced. Rule

257 provides that the inability to obtain a fair and impartial

trial of a civil case may be grounds for a transfer of venue.

Id. Phillip uses the rule as a defensive measure to support the

maintenance of his action in DeWitt County. Even were we to

consider Phillip's argument, a motion based on rule 257 must

be supported by competent affidavits of the party seeking the

transfer and three credible residents of the county where the

suit is pending. See id.;Acker v. Denton Publ'g, 937 S.W.2d

111, 118 (Tex.App.-Fort Worth 1996, no writ). Phillip did

not satisfy this requirement. Therefore, this argument is also

without merit. 3 We overrule Phillip's venue issues five, six,

and seven.

5. Due Process

*5 By his third issue, Phillip generally argues that he was

“denied due process of law in the first hearing by the denial

[of] the opportunity to be heard.”By the language in his brief,

Phillip appears to be arguing that he was denied due process

when the trial court did not allow him the opportunity to

present evidence at a hearing on Valdez's motion to transfer

venue after Phillip requested a bench warrant.

We review a trial court's denial of a bench warrant motion for

an abuse of discretion. See In the Interest of Z.L.T., J.K.H.T.,

and Z.N.T., 124 S.W.3d 163, 165 (Tex.2003); Pedraza v.

Crossroads Security Sys., 960 S.W.2d 339, 342 (Tex.App.-

Corpus Christi 1997, no pet.). To determine whether a trial

court abused its discretion, we must decide whether it acted

without reference to any guiding rules or principles; whether

the act was arbitrary or unreasonable.Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

“It is well-established that litigants cannot be denied access

to the courts simply because they are inmates.”In the Interest

of Z.L.T., 124 S.W.3d at 165 (citing Hudson v. Palmer, 468

U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).

However, an inmate does not have an absolute right to appear

in person in every court proceeding. Id.;Pedraza, 960 S.W.2d

at 342. “[T]he inmate's right of access to the courts must be

weighed against the protection of our correctional system's

integrity.”Z.L.T., 124 S.W.3d at 165,see Pedraza, 960 S.W.2d

at 342. The supreme court identified the following factors that

the trial court should consider when deciding whether to grant

a request for a bench warrant:

the cost and inconvenience of

transporting the prisoner to the

courtroom; the security risk the

prisoner presents to the court and

public; whether the prisoner's claims

are substantial; whether the matter's

resolution can reasonably be delayed

until the prisoner's release; whether the

prisoner can and will offer admissible,

noncumulative testimony that, cannot

be effectively presented by deposition,

telephone, or some other means;

whether the prisoner's presence is

important in judging his demeanor and

credibility; whether the trial is to the

court or a jury; and the prisoner's

probability of success on the merits.

Z.L.T., 124 S.W.3d at 165;see Pedraza, 960 S.W.2d at 342.

The trial court has no responsibility to independently inquire

into the applicability of the factors; rather, the inmate has the

burden to establish his right to relief. See Z.L.T., 124 S.W.3d

at 166. If the inmate fails to identify with sufficient specificity

the grounds for the ruling he seeks under the factors identified

above, the trial court does not abuse its discretion in denying

his request. See id.

In his motion for a bench warrant, Jackson requested the

following:

Now comes, Phillip Jackson #

1189921, pro se, humbly request the

Honorable Court to issue a order
Jackson v. Neal, Not Reported in S.W.3d (2009)

2009 WL 140507

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

from the bench, for a bench warrant

for Phillip Jackson, that I may be

present at the hearing on November

16, 2006 and said order to the sheriff

of DeWitt County to deliver Phillip

Jackson to the Honorable Court for

said hearing. Thank you! Plaintiff['s]

address, Stevenson Unit, 1525 FM

766, Cuero, Texas 77954.

*6 On November 16, 2006, the trial court granted Valdez's

motion to transfer the case to Nueces County without issuing

a bench warrant, thereby impliedly denying Phillip's request.

See Z.L.T., 124 S.W.3d at 165. Phillip's bench warrant motion

contains no information by which the trial court could assess

the necessity of his appearance at a venue hearing. The

motion contains no basis or argument for granting the motion.

Pedraza, 960 S.W.2d at 342. It does not reference any of the

factors identified in Z.L.T. See In the Interest of Z.L.T., 124

S.W.3d at 165-66. As in Z.L.T., the only information in the

motion pertinent to Phillip's request is that he is incarcerated

in Cuero, Texas, over 100 miles from Nueces County. See

id. at 166 (noting that the only relevant information in the

bench warrant motion was that the prisoner was incarcerated

“more than 200 miles from the trial court”). Because Phillip

failed to meet his burden to prove his entitlement to a bench

warrant, we cannot say the trial court abused its discretion in

implicitly denying Phillip's request for a bench warrant. See

id.We overrule Phillip's third issue.

IV. Summary Judgment Issues

Phillip does not challenge the summary judgment granted

in favor of Neal in his original brief. In his reply brief,

Phillip, for the first time, challenges the propriety of

the summary judgment on due process grounds, after

Neal raised facts related to these issues in his responsive

brief. 4SeeTEX.R.APP. P. 38.3.

Rule 38.3 states that the “appellant may file a reply brief

addressing any matter in the appellee's brief.”Id. However,

an appellant may not use a reply brief to raise new issues.

Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex.App.-San

Antonio 2003, pet. denied); see Anderson Producing, Inc. v.

Koch Oil Co., 929 S.W.2d 416, 424 (Tex.1996) (declining

to consider issue first raised in reply brief). Because Phillip

failed to raise his due process challenges in his initial brief,

we conclude that he has waived these complaints for appellate

review. 5 We overrule Phillip's reply issues regarding the

summary judgment granted in favor of Neal.

V. Motion to Dismiss Issues

A. Rulings on Phillip's Motions

By his first two issues, Phillip complains that he was denied

due process when the trial court dismissed his claims before

ruling on two motions-Phillip's motion to stay the proceedings

and Phillip's motion to proceed in forma pauperis-while his

appeal of the order transferring venue was pending. 6 We

disagree.

1. Motion to Stay

An appeal from an interlocutory order does not stay the

commencement of a trial or other proceedings in the trial

court, except in limited circumstances. SeeTEX. CIV. PRAC.

& REM.CODE ANN. § 51.014 (Vernon 2008). None of the

specific circumstances apply in this case. See id.Additionally,

rule 29 .5 of the Texas Rules of Appellate Procedure sets

out that the trial court retains jurisdiction during an appeal

of an interlocutory order and, unless prohibited by statute,

may make any rulings or orders that do not interfere with

temporary orders issued by the court of appeals or with the

appellate court's jurisdiction. TEX.R.APP. P. 29.5.

*7 In this case, there are no statutory restrictions that apply

to the trial court making further rulings, seeTEX. CIV. PRAC.

& REM.CODE ANN. § 51.014; the trial court's rulings

did not interfere with temporary orders because none were

issued; and, the rulings did not interfere with our jurisdiction

because we concluded that we had none. See Jackson, No.

13-06-700-CR, 2007 Tex.App. LEXIS 1786, at *2, 2007 WL

687289.Therefore, the trial court did not deny Phillip due

process when it granted Valdez's motion to dismiss without

ruling on Phillip's motion to stay.

2. Motion to Proceed in Forma Pauperis

Again, Phillip has made no concise argument with citation to

authorities and to the record in support of his contention that

the trial court denied him due process when it failed to rule

on his motion for pauper status before it dismissed his claim
Jackson v. Neal, Not Reported in S.W.3d (2009)

2009 WL 140507

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and while the venue appeal was pending. SeeTEX.R.APP.

P. 38.1(i). Indeed, it is his claim of poverty, not the ruling

he seeks on his motion, that mandates the requirements of

chapter 14. SeeTEX. CIV. PRAC. & REM.CODE ANN.

§ 14.002(a). The trial court's dismissal was not based on

Phillip's failure or his inability to pay fees. It was based on

Phillip's non-compliance with requirements of chapter 14. We

overrule Phillip's first and second issues.

B. Chapter 14 Requirements

In his responsive brief, Valdez asserts that appellant's claim

is frivolous because Phillip failed to sufficiently set forth the

operative facts regarding a previous filing and failed to submit

a certified copy of his trust account. SeeTEX. CIV. PRAC.

& REM.CODE ANN. §§ 14.004(a); 14.006(f). By a reply

issue, Phillip claims, for the first time, that he satisfied the

requirements of chapter 14 of the Texas Civil Practice and

Remedies Code, and, thus, the trial court abused its discretion

in dismissing his claim. SeeTEX.R.APP. P. 38.3. However,

as set out above, the rules of appellate procedure do not allow

an appellant to include in his reply brief a new issue that

responds to a matter that was raised in the appellee's brief but

that was not raised in the appellant's original brief. Id.;Lopez,

131 S.W.3d at 61;see Anderson Producing, 929 S.W.2d at

424. Because Phillip failed to raise this chapter 14 issue in his

initial brief, he has waived these complaints for our review.

We overrule Phillip's reply issues regarding the trial court's

granting of the motion to dismiss.

V. Remaining Issues

Phillip presents two additional issues for our review. In issue

four, Phillip claims that he has suffered a monetary and

property loss by appellees' illegal forfeiture action or seizure

without any violation of chapter 59 of the Texas Code of

Criminal Procedure or federal law. Phillip does not, however,

develop his arguments regarding this issue and does not

provide this Court with appropriate citations to authorities and

to the record. SeeTEX.R.APP. P. 38.1(i). Because this issue

is inadequately briefed, we overrule Phillip's fourth issue.

*8 By his eighth issue, Phillip asks, “Did the Stevenson

Unit mailroom enter into a conspiracy with the appellee ...

by the delayed notice date on November 19, 2007[sic] and

was not give [sic] to the appellant until November 28, 2007.

[sic]” Phillip brings this argument for the first time on appeal;

therefore, his eighth issue is waived. See B.L.D., 113 S.W.2d

at 350-52.

VI. Conclusion

We affirm.

All Citations

Not Reported in S.W.3d, 2009 WL 140507

Footnotes

1 The Jacksons also identify the City of Corpus Christi, John Doe, and Jane Doe as appellees. However, we find nowhere

in the record that they were served with citation. Only Valdez and Neal answered and participated in the proceedings

below. Therefore, based on our review of the record, the City and John and Jane Doe were never parties to the lawsuit

and, therefore, cannot be appellees in this appeal.

2 Mary's appearance at the hearing is not supported by the record but is undisputed by Valdez. No reporter's record of the

hearing has been filed in this appeal. From our review of the appellate record, the hearing, if any, on February 7, 2007,

was for the purpose of presenting Valdez's motion to dismiss. It is not clear whether Neal's motion for summary judgment

was argued at the hearing. The orders granting the two motions were both signed on February 8, 2007.

3 Phillip also argues that rule 259 applies. SeeTEX.R. CIV. P. 259 (providing that if a motion under rule 257 is granted, the

cause shall be removed, if a county of proper venue cannot be found, from a district court to any county in the same or an

adjoining district or to any district where an impartial trial can be had). This argument was not raised in the trial court and

is, therefore, waived. See In the Interest of B.L.D., 113 S.W.2d 340, 350-52 (Tex.2008). Even had Phillip not waived the

argument, rule 259 applies only when a rule 257 motion is granted. In this case, the trial court did not grant such a motion.

4 Phillip complains of the trial court's alleged failure to bench warrant him for the February 2007 hearing. He also asserts

that he did not receive notice of the granting of the summary judgment.

5 We also note that Phillip provides no further argument with record cites and citation to authority to support these

contentions. SeeTEX.R.APP. P. 38.1(i) (providing that this court will only consider contentions that are supported by clear
Jackson v. Neal, Not Reported in S.W.3d (2009)

2009 WL 140507

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

and concise arguments with appropriate citations to authorities and the record); Moser v. Roberts, 185 S.W.3d 912, 916

(Tex.App.-Corpus Christi 2006, no pet.). Therefore, Phillip has waived error because the issues are inadequately briefed.

In addition, we have not found a motion for a bench warrant requesting Phillip's appearance at this February hearing or

facts regarding notice of the granting of the summary judgment in the appellate record.

6 Phillip alleges that the trial court agreed, in open court, not to rule on Valdez's motion to dismiss until the appeal of

the venue order was concluded; however, he provides no record support for this assertion. SeeTEX.R.APP. P. 38.1(i).

Therefore, we will not address arguments related to the trial court's alleged agreement to stay the proceedings in this case.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)

57 Tex. Sup. Ct. J. 1005

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

438 S.W.3d 556

Supreme Court of Texas.

Gary Wayne JASTER, Petitioner,

v.

COMET II CONSTRUCTION, INC., Joe

H. Schneider, Laura H. Schneider, and

Austin Design Group, Respondents.

No. 12–0804. | Argued Oct.

9, 2013. | Decided July 3, 2014.

Synopsis

Background: Homeowner brought action against contractor

for damages arising from allegedly improper design and

construction of house foundation. Contractor filed thirdparty indemnity complaint against architectural designer and

licensed professional engineer, and architectural designer

cross-claimed against contractor and engineer for indemnity.

The 274th Judicial District Court, Hays County, 2010 WL

10092095, William Henry, J., denied engineer's motion to

dismiss third-party and cross claims for deficient filing.

Engineer appealed. The Austin Court of Appeals, 382 S.W.3d

554, affirmed. Engineer filed petition for review, which was

granted.

[Holding:] On an issue of apparent first impression, the

Supreme Court, Boyd, J., held that certificate-of-merit

requirement did not apply to third-party plaintiffs and crossclaimants.

Affirmed.

Willett, J., filed concurring opinion in which Devine, J, joined

and Lehrmann, J., joined in part.

Hecht, C.J., filed dissenting opinion in which Green and

Guzman, joined and Brown, J., joined in part.

Attorneys and Law Firms

*558 David Kenneth Sergi, David K. Sergi & Associates,

P.C., San Marcos, TX, for Other interested party.

Andrew L. Kerr, Cynthia E. Ellis Rosen, John Alex

Huddleston, Strasburger & Price LLP, San Antonio, TX, for

Petitioner.

Kemp W. Gorthey, Attorney at Law, Austin, TX, for

Respondent Austin Design Group.

Henderson L. Buford III, Buford & Associates, Austin, TX,

for Respondent Comet II Construction, Inc.

Opinion

Justice BOYD announced the Court's disposition and

delivered a plurality opinion, in which Justice JOHNSON,

Justice WILLETT, and Justice DEVINE joined.

Chapter 150 of the Texas Civil Practice and Remedies

Code requires “the plaintiff” in “any action or arbitration

proceeding for *559 damages arising out of the provision of

professional services by a licensed or registered professional”

architect, engineer, land surveyor, or landscape engineer

to file a supporting expert affidavit “with the complaint.”

The issue in this case is whether this requirement applies

to a defendant or third-party defendant who files a thirdparty claim or cross-claim against a licensed or registered

professional. Concluding that cross-claimants and third-party

plaintiffs are not “the plaintiff” in an “action or arbitration

proceeding,” we hold that the statute's expert affidavit

requirement does not apply to them.

I.

Background

Mahmoud Dawoud purchased a home from Comet II

Construction, Inc. About ten years later, Dawoud sued

Comet 1 for negligence, negligent misrepresentations, fraud,

deceptive trade practices, and breach of contract, alleging

that Comet defectively designed and constructed the home's

foundation. Comet denied any liability and asserted thirdparty claims against Austin Design Group, from whom Comet

had purchased the foundation plans, and against Gary Wayne

Jaster, the licensed professional engineer who had prepared

the plans. Comet sought contribution and indemnity from the

third-party defendants, alleging that they “are or may be liable

to [Comet] for all or part of [Mahmoud's] complaint.” Austin

Design Group filed a counterclaim against Comet and a crossclaim against Jaster, seeking contribution and indemnity and
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)

57 Tex. Sup. Ct. J. 1005

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

asserting that, “[t]o the extent there is any defect in the

foundation, whether by design or construction, it is the fault of

[Jaster or Comet] and not the fault of Austin Design Group.”

Jaster filed a motion to dismiss Comet's third-party claim and

Austin Design Group's cross-claim, arguing that they were

each “the plaintiff” as to those claims, that he was a licensed

professional engineer, and that they had failed to file an expert

affidavit (which the statute refers to as a “certificate of merit”)

as chapter 150 requires. In response, Comet filed an amended

third-party petition, this time attaching a certificate of merit. 2

Jaster then filed an amended motion to dismiss, arguing that

Comet did not comply with the statute because it did not file

the certificate of merit with the original third-party petition

and thus did not file it “with the complaint.”

The trial court denied Jaster's motion to dismiss, and Jaster

filed this interlocutory appeal. 3 With one justice dissenting,

the court of appeals affirmed, concluding that chapter 150

does not require third-party plaintiffs or cross-claimants to

file a certificate of merit. 382 S.W.3d 554. Jaster filed a

petition for review, which we granted.

II.

“The Plaintiff” in an “Action” Under Section 150.002

[1] Jaster contends that section 150.002 of the Texas Civil

Practice and Remedies Code requires dismissal of the claims

that Comet and Austin Design *560 Group asserted against

him in this case. The 2005 version of this section, which

governs this action, provided:

In any action or arbitration proceeding

for damages arising out of the

provision of professional services by

a licensed or registered professional,

the plaintiff shall be required to

file with the complaint an affidavit

of a third-party licensed architect,

registered professional land surveyor,

or licensed professional engineer

competent to testify, holding the same

professional license as, and practicing

in the same area of practice as the

defendant, which affidavit shall set

forth specifically at least one negligent

act, error, or omission claimed to exist

and the factual basis for each such

claim.

Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003

Tex. Gen. Laws 847, 896–97, amended by Act of May 12,

2005, 79th Leg., R.S., ch. 189, § 4, 2005 Tex. Gen. Laws

348, 348 and Act of May 27, 2005, 79th Leg., R.S., ch. 208,

§ 2, 2005 Tex. Gen. Laws 369, 370 and Act of May 27,

2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws

1991, 1992 (current version codified at TEX. CIV. PRAC.

& REM.CODE § 150.002). 4

 “The plaintiff's failure to file

the affidavit in accordance with this section shall result in

dismissal of the complaint against the defendant” and “[t]his

dismissal may be with prejudice.” Id. § 150.002(e).

5

The parties do not dispute that Jaster is a licensed professional

engineer and thus a “licensed or registered professional,” 6 or

that the claims that Comet and Austin Design Group assert

against him arise out of the provision of professional services.

Neither Comet nor Austin Design Group filed a certificate of

merit when they originally filed their claims against him. The

only issue in this appeal is whether the statute required them

to do so.

Jaster argues: (1) for purposes of section 150.002, “there is

no meaningful distinction” between an original “plaintiff”

and a third-party plaintiff or a cross-claimant because they

all assert affirmative claims for relief and are subject to

the same pleading requirements; (2) third-party claims and

cross-claims are “actions,” and thus must comply with the

statute's requirements for “any action”; and (3) not applying

the requirement to third-party plaintiffs and cross-claimants

thwarts “the statute's purpose to protect licensed professionals

from unmeritorious or frivolous claims.” In response, Comet

and Austin Design Group contend: (1) because the statute

uses the word “plaintiff” rather than the more inclusive

term “claimant,” the certificate-of-merit requirement *561

applies only to a party that initiates a lawsuit; (2) requiring

a defendant who denies the plaintiff's allegations to file

a certificate of merit that supports the plaintiff's claims

would be “absurd,” “unfair,” and “unreasonable”; and (3) if

applying the requirement only to “the plaintiff” undermines

the statute's purpose, the Legislature should address that

problem, not the courts. 7 After briefly reviewing the courts

of appeals' decisions addressing this issue, we consider the

language of the statute and its context, and conclude that they

compel us to agree with Comet and Austin Design Group.
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)

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A. Judicial Constructions of Section 150.002

Three Texas courts of appeals have addressed section

150.002's certificate-of-merit requirement in the context of

third-party plaintiffs or cross-claimants. 8 First, in DLB

Architects, P.C. v. Weaver, the Dallas Court of Appeals

applied the requirement to a defendant who asserted thirdparty claims for contribution and indemnity against outof-state architects. 305 S.W.3d 407, 411 (Tex.App.-Dallas

2010, pet. denied). The third-party plaintiff argued that the

requirement applies only to architects licensed in Texas, and

the court rejected that argument. Id. at 410–11. But neither

party argued that the requirement did not apply to thirdparty plaintiffs, and the court applied the requirement without

addressing that issue. Id.

Next, the Fort Worth Court of Appeals became the first to

expressly address the issue in CTL/Thompson Texas, LLC

v. Morrison Homes, 337 S.W.3d 437 (Tex.App.-Fort Worth

2011, pet. denied). In that case, a homebuilder sued a land

developer and several engineers over a real estate transaction

and filed a certificate of merit with the original petition.

Id. at 439. The land developer brought cross-claims against

the engineers, but instead of filing a certificate of merit, he

incorporated the homebuilder's certificate of merit into his

cross-petition by reference. Id. The engineers argued that the

statute required the developer to file his own certificate of

merit to support the cross-claims. Id. at 440. The court of

appeals held that the statute does not apply to a defendant

who merely files cross-claims against another defendant. Id.

at 445–46. The court rejected the engineer's reliance on DLB

Architects on the ground that it involved a defendant who

filed third-party claims against a new third-party defendant,

rather than cross-claims against a defendant who was already

in the case. Id. The court reasoned that there is no need to

require a cross-claimant to file a certificate of merit because

“the plaintiff will have already filed [one],” or “if not, the

plaintiff's claims are subject to dismissal.” Id. at 445. But

because the plaintiff will not have already filed a certificate of

merit addressing the conduct of a new third-party defendant,

the court reasoned that a third-party plaintiff should be

required to do so, even if a cross-claimant is not. Id. at 445–

46.

Finally, in the case before us today, the Austin Court of

Appeals held that the statute does not require third-party

plaintiffs or cross-claimants to file a certificate of merit. The

court identified many respects in which third-party plaintiffs

and cross- *562 claimants are both similar to and yet

different from original plaintiffs. 382 S.W.3d at 559–60.

The majority observed that “the statute does not specifically

address defendants filing third-party complaints and crossclaims” and suggested that “there are multiple options of

how the certificate-of-merit requirement could be applied

to them,” depending on whether the claims are original

to the defendant or derived from the plaintiff's claims and

whether they assert the claims against new parties or parties

already in the suit. Id. at 560. After considering the potential

“unintended consequences of an expansive definition of

‘plaintiff,’ ” id. at 561, the majority noted that the statute

uses the word “plaintiff” instead of “claimant” and does

so without defining it to include third-party plaintiffs and

cross-claimants. Id. at 561–62. Considering the “difficulties

in judicially imposing ... a broader definition of ‘the plaintiff,’

” the majority decided to “resist the urge to judicially

create a solution to the statute's failure to address third-party

complaints and cross-claims,” and held that the statute “does

not require a certificate of merit from a defendant who files a

third-party complaint or cross-claim.” Id. at 562.

The dissenting justice in the Austin Court of Appeals

concluded that requiring plaintiffs who sue certain

professionals to file a certificate of merit but not requiring

defendants who sue such professionals to do so is “an

absurd result.” Id. at 565 (Henson, J., dissenting). In her

view, the majority's construction undermines the statute's

purpose “to provide a method by which courts can quickly

dismiss meritless claims” and ignores the reality that, from

the licensed or registered professional's perspective, “thirdparty plaintiffs and cross-claimants are certainly ‘plaintiffs'

with regard to the third-party claims and cross-claims[.]” Id.

at 564–65.

B. The Language of the Statute

[2] [3] [4] [5] [6] We resolve the issue in this

case by looking to the language of the statute, which we

construe de novo. Nathan v. Whittington, 408 S.W.3d 870,

872 (Tex.2013). We must enforce the statute “as written”

and “refrain from rewriting text that lawmakers chose.”

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443

(Tex.2009). We limit our analysis to the words of the statute

and apply the plain meaning of those words “unless a different

meaning is apparent from the context or the plain meaning

leads to absurd or nonsensical results.” Molinet v. Kimbrell,

356 S.W.3d 407, 411 (Tex.2011). While we must consider

the specific statutory language at issue, we must do so while

looking to the statute as a whole, rather than as “isolated

provisions.” TGS–NOPEC Geophysical Co. v. Combs, 340
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)

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S.W.3d 432, 439 (Tex.2011). We “endeavor to read the

statute contextually, giving effect to every word, clause, and

sentence.” In re Office of Att'y Gen., 422 S.W.3d 623, 629

(Tex.2013). We thus begin our analysis with the statute's

words and then consider the apparent meaning of those words

within their context. 9

1. The Words of the Statute

[7] [8] Section 150.002 requires “the plaintiff” in “any

action or arbitration proceeding” *563 to file a certificate

of merit. Chapter 150 does not define the terms “plaintiff”

or “action,” so we must give them their common, ordinary

meaning unless the statute clearly indicates a different result.

See Molinet, 356 S.W.3d at 411. That is not to say that

we must (or may only) give undefined words their only

meaning, for words can have more than one meaning. The

dissent asserts that, “[w]hen a word is used sometimes to

mean one thing and sometimes another, neither is ‘plain,’

‘common,’ or ‘ordinary’ to the exclusion of the other.” Post

at 578. We disagree. When a statute uses a word that it does

not define, our task is to determine and apply the word's

common, ordinary meaning. The fact that the word may

sometimes be used to convey a different meaning is the very

reason why we look for its common, ordinary meaning. To

determine its common, ordinary meaning, we look to a wide

variety of sources, including dictionary definitions, treatises

and commentaries, our own prior constructions of the word

in other contexts, the use and definitions of the word in other

statutes and ordinances, and the use of the words in our rules

of evidence and procedure. 10

We begin by reviewing dictionary definitions of the words

“plaintiff” and “action.” See Epps v. Fowler, 351 S.W.3d

862, 873 (Tex.2011) (Hecht, J., dissenting) (“The place to

look for the ordinary meaning of words is ... a dictionary.”).

Dictionaries consistently define a “plaintiff” as a party or

person who brings or files a “civil suit” or “legal action.”

See, e.g., BLACK'S LAW DICTIONARY 1171 (7th ed.1999)

(defining “plaintiff” as “[t]he party who brings a civil suit

in a court of law”); Garner, Bryan, A DICTIONARY OF

MODERN LEGAL USAGE 665 (2nd ed.1995) (defining

“plaintiff” as “the party who brings suit in a court of law”);

MERRIAM–WEBSTER'S COLLEGIATE DICTIONARY

888 (10th ed.1993) (defining “plaintiff” as “a person who

brings a legal action”). Thus, both the statute and the

dictionary definitions recognize a direct relationship between

the words “plaintiff” and “action.” Jaster contends that “any

action,” as used in section 150.002, includes each separate

claim or cause of action that any party may assert, including

an original plaintiff's claims, third-party claims, and crossclaims. This, however, is not the common, ordinary meaning

of “action.”

[9] [10] [11] [12] The common meaning of the term

“action” refers to an entire lawsuit or cause or proceeding,

not to discrete *564 “claims” or “causes of action”

asserted within a suit, cause, or proceeding. BLACK'S LAW

DICTIONARY at 28 (defining “action” as “[a] civil or

criminal judicial proceeding”). “The term ‘action’ is generally

synonymous with ‘suit,’ which is a demand of one's rights in

court.” Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex.1995);

see also In re Marriage of Combs, 958 S.W.2d 848, 850

(Tex.App.-Amarillo 1997, no pet.) (holding that an “action” is

“a demand for one's legal right and has been held synonymous

with ‘suit’ ”). A suit, in turn, is “any proceeding in a court

of justice by which an individual pursues that remedy in a

court of justice which the law affords him.” H.H. Watson Co.

v. Cobb Grain Co., 292 S.W. 174, 176 (Tex.1927) (citing

Weston v. City Council of Charleston, 27 U.S. 449, 464,

2 Pet. 449, 7 L.Ed. 481 (1829)). Although the word “suit”

can be “more general in its comprehension than the word

‘action,’ ” both terms refer to a judicial proceeding in which

parties assert claims for relief. Id. Thus, under the common

definition, “[a]n action is a judicial proceeding, either in

law or in equity, to obtain certain relief at the hands of the

court.” Elmo v. James, 282 S.W. 835, 839 (Tex.Civ.App.-

Fort Worth 1926, writ dism'd w.o.j.). Historically, “action”

referred to a judicial proceeding in a court of law, while “suit”

referred to a proceeding in a court of equity. BLACK'S LAW

DICTIONARY at 29.

[13] [14] A “cause of action,” by contrast, “has been

defined ‘as a fact or facts entitling one to institute and

maintain an action, which must be alleged and proved in order

to obtain relief.’ ” A.H. Belo Corp. v. Blanton, 133 Tex. 391,

129 S.W.2d 619, 621 (1939) (quoting 1 TEX. JUR. p. 61

sec. 15). As we recently noted, this is “the generally accepted

meaning” of the term “cause of action.” Loaisiga v. Cerda,

379 S.W.3d 248, 255 (Tex.2012) (quoting In re Jorden, 249

S.W.3d 416, 421 (Tex.2008)). Thus, a “cause of action”

and an “action” are not synonymous; rather, the “cause of

action” is the right to relief that entitles a person to maintain

“an action.” Id. “The right to maintain an action depends

upon the existence of a cause of action, which involves the

combination of a right on the part of the plaintiff and a

violation of such right by the defendant.” Bell v. Moores, 832
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)

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S.W.2d 749, 752 (Tex.App.-Houston [14th Dist.] 1992, writ

denied). 11

[15] [16] A “cause of action” is thus similar to a “claim,”

in that they both refer to a legal right that a party asserts

in the suit that constitutes the action. See Torch Energy

Advisors Inc. v. Plains Exploration & Prod. Co., 409 S.W.3d

46, 56 (Tex.App.-Houston [1st Dist.] 2013, no pet.) (noting

that the ordinary meaning of “claim” is “the assertion of

an existing right; any right to payment or to an equitable

remedy,” and “the aggregate of operative facts giving rise to

a right enforceable by a court”). Thus, a “cause of action may

exist before a suit is instituted.” Magill, 409 S.W.3d at 679.

But for there to be a “suit” or “action,” it is “essential that

it rest in a court, with the power to hear it. Without such a

forum, it is not ‘a suit,’ since it lacks that which is as necessary

to make it a suit as the petition itself.” United *565 Prod.

Corp. v. Hughes, 137 Tex. 21, 152 S.W.2d 327, 330 (1941)

(quoting Pecos & N.T. Ry. Co. v. Rayzor, 106 Tex. 544, 172

S.W. 1103, 1104 (1915)). Recognizing these distinctions, this

Court has used the terms “case,” “cause,” “suit,” “lawsuit,”

“action,” and “proceeding” interchangeably, while using the

terms “claim,” “cause of action,” and “chose in action” to

refer to the facts giving rise to a right that is enforceable in that

proceeding. See, e.g., State Farm Fire & Cas. Co. v. Gandy,

925 S.W.2d 696, 698–708 (Tex.1996).

Consistent with the common, ordinary usage of these terms,

the Dallas Court of Appeals has expressly concluded that

“the term action in section 10.01 [of the Civil Practice

and Remedies Code] means ‘suit,’ ” not “cause of action.”

Bradley v. Etessam, 703 S.W.2d 237, 241 (Tex.App.-Dallas

1985, writ ref'd n.r.e.) (emphasis in original). Similarly, the

Amarillo Court of Appeals has concluded that a counter-claim

is not an “action” as the Family Code uses that term. Combs,

958 S.W.2d at 850.

12

Thus, according to the terms' common, ordinary meanings,

section 150.002 requires “the plaintiff” to file a certificate

of merit in “any [lawsuit] or arbitration proceeding” against

a licensed professional, and “the plaintiff” is a party who

initiates the “action” or suit, not any party who asserts claims

or causes of action within the suit. Third-party plaintiffs and

cross-claimants do not initiate a lawsuit or legal proceeding.

Because they share some similarities with plaintiffs, the

law treats them similarly in limited respects. See, e.g.,

Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800

(Tex.1992) (noting that a defendant who asserts a cross-claim

“becomes a plaintiff for res judicata purposes ” with respect

to compulsory claims relating to the cross-claim) (emphasis

added); TEX.R. CIV. P. 85 (providing that a defendant's

original answer “may present a cross-action, which to that

extent will place defendant in the attitude of a plaintiff)

(emphasis added). But that does not mean that the law treats

them similarly in all respects. We thus conclude that, under

the common, ordinary meaning of the terms, Comet and

Austin Design Group are not “the plaintiffs” in this “action,”

because they are not the parties who initiated the suit.

2. The Context of the Words

Having identified the common meaning of the terms

“plaintiff” and “action,” we must also consider the context

in which those words appear within section 150.002 and the

statute as a whole. 13 The dissent *566 considers it obvious

that “a third-party plaintiff is a plaintiff.” Post at 576. We

agree that the terms “plaintiff” and “action” may sometimes

be used more broadly than their common meanings would

support. 14 To conclude that they are used that way here,

however, either a statutory definition or the context of the

language must clearly demonstrate that they are. So we

must consider the entire statute in this case, to determine

whether something other than the words' common meaning

“is apparent from the context” here. Molinet, 356 S.W.3d at

411. Doing so, we conclude that the context does not support a

different meaning but instead confirms the common meanings

we have identified.

[17] We begin our review of the context by recognizing

that the statute requires the plaintiff to file a certificate

of merit in “any action or arbitration proceeding.” TEX.

CIV. PRAC. & REM.CODE § 150.002(a) (emphasis added).

By using the terms “action” and “arbitration proceeding”

together with the conjunction “or,” the statute treats the

two terms as having a similar meaning. The meaning of

individual words “may be ascertained by reference to words

associated with them in the statute; and ... where two or

more words of analogous meaning are employed together

in a statute, they are understood to be used in their cognate

sense, to express the same relations and give color and

expression to each other.” Harris Cnty. v. Eaton, 573 S.W.2d

177, 181 (Tex.1978). Giving the term “action” its common

meaning recognizes its similarity and relationship to the term

“arbitration proceeding,” so that in both terms the statute

refers to a legal proceeding in which a plaintiff asserts a

claim or cause of action. Indeed, if the term “action” referred

to a claim or cause of action rather than a lawsuit or legal

proceeding, there would be no reason for the statute to refer
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)

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to an “arbitration proceeding” at all, because parties resolve

claims and causes of action in both types of legal proceedings.

See, e.g., TEX. CIV. PRAC. & REM.CODE § 171.002

(addressing “claims” subject to arbitration); In re Labatt Food

Serv. L.P., 279 S.W.3d 640, 645–46 (Tex.2009) (holding that

a wrongful death “cause of action” must be resolved through

arbitration, which “merely changes the forum in which the

claims are to be resolved”).

Next, we consider that the statute requires the plaintiff to file

a certificate of merit “in ” an action or arbitration proceeding.

TEX. CIV. PRAC. & REM.CODE § 150.002(a) (emphasis

added). As a matter *567 of ordinary language, it would be

at least unusual, if not grammatically incorrect, to say that a

plaintiff is “required to file” something “in” a “claim” or “in”

a “cause of action.” Rather, a party asserts a claim or cause of

action “in” a pleading that is filed “in” a lawsuit or “action.”

The context of section 150.002(a), which requires the plaintiff

to file the certificate of merit “with the complaint” and “in

any action,” thus indicates the common meaning of the term

“action” as a lawsuit or legal proceeding.

Similarly, we note that the statute requires the certificate of

merit to “set forth specifically” the defendant's conduct giving

rise to liability “for each theory of recovery ” and “the factual

basis for each such claim.” TEX. CIV. PRAC. & REM.CODE

§ 150.002(b) (emphases added). Rather than requiring the

factual support for “the action,” as if that term meant a

“claim” or “cause of action,” this language demonstrates the

statute's recognition of the difference between a “claim” and

an “action.” Subsection (a) requires the plaintiff to file a

certificate of merit “in an action,” and subsection (b) requires

the certificate to state the factual basis for each legal theory

or “claim” asserted in that action.

Turning to the meaning of the term “plaintiff,” we observe

that, throughout the Civil Practice and Remedies Code, the

definitions and usage of the term “plaintiff,” as opposed to

the term “claimant,” are consistent with its common meaning.

When addressing frivolous pleadings and claims in chapter

9, for example, the statute uses the term “claimant,” rather

than the term “plaintiff,” and expressly defines the term

“claimant” to include “a plaintiff, counterclaimant, crossclaimant, third-party plaintiff, or intervenor, seeking recovery

of damages.” TEX. CIV. PRAC. & REM.CODE § 9.001(1).

The statute consistently utilizes the same approach when

addressing proportionate responsibility in chapter 33, see id.

§ 33.011(1), damages in chapter 41, see id. § 41.001(1),

liability for stalking in chapter 85, see id. § 85.001(1), and

liability for a year 2000 computer failure in chapter 147,

see id. § 147.001(2). And when addressing medical liability

claims (to impose an expert affidavit requirement similar

to chapter 150's certificate-of-merit requirement), the statute

uses a similar but slightly different approach, using the

term “claimant” and defining that term to mean any person

“seeking or who has sought recovery of damages in a health

care liability claim.” Id. § 74.001(a)(2). These provisions

demonstrate that when the Legislature wants to use a single

term that encompasses third-party plaintiffs, cross-claimants,

and counter-claimants along with plaintiffs, it uses the term

“claimant,” and defines that term accordingly.

By contrast, the Code repeatedly uses the word “plaintiff” to

refer to a party who initiates the suit, rather than to every party

who asserts a claim for relief within a suit. When addressing

the general rule for venue in chapter 15, for example, the

statute provides that “all lawsuits shall be brought,” when

other rules do not apply, “in the county in which the plaintiff

resided at the time of the accrual of the cause of action.”

Id. § 15.002(a)(4) (emphases added). Similarly, although (as

noted above) the medical liability act generally refers to

“claimants,” when addressing discovery procedures it refers

instead to “the plaintiff,” who must serve standard discovery

answers and responses “within 45 days after the date of

filing of the original petition.” Id. § 74.352(a) (emphases

added). And when addressing forum non conveniens motions

in chapter 71, the statute uses the word “plaintiff” and defines

it broadly to mean “a party seeking recovery of damages

for personal injury or wrongful death,” but the statute then

expressly provides *568 that “[t]he term does not include

a counterclaimant, cross-claimant, or third-party plaintiff.”

See id. § 71.051(h)(2). These provisions demonstrate that

when the Legislature wants to use a term that includes only

a party who initiates a lawsuit, thus excluding third-party

plaintiffs, cross-claimants, and counter-claimants, it uses the

term “plaintiff,” rather than the term “claimant.” 15

Finally, we note that this Court's practice in the Texas

Rules of Civil Procedure is also consistent with the common

meanings and the statutory usage of the terms “plaintiff”

and “third-party plaintiff” to refer to distinct types of parties

in a suit. Rule 38, for example, which governs third-party

practice, provides that “a defending party, as a third-party

plaintiff,” may bring claims against a non-party “who is or

may be liable to him or to the plaintiff.” TEX.R. CIV. P.

38(a) (emphases added). 16 The person against whom the

third-party plaintiff asserts such claims, “hereinafter called

the third-party defendant,” may then assert any defenses
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“the third-party plaintiff has to the plaintiff's claim.” Id.

(emphases added). The third-party defendant must assert any

compulsory counterclaims against the third-party plaintiff

and any compulsory cross-claims against “other third-party

defendants,” and “[t]he plaintiff may assert any claim against

the third-party defendant arising out of the transaction or

occurrence that is the subject matter of the plaintiff's claim

against the third-party plaintiff.” Id. (emphases added). And

our rules are also consistent with the statute's broader usage

of the term “claimants.” See TEX.R. CIV. P. 169(a)(1)

(creating expedited procedure for certain suits in which “all

claimants, other than counter-claimants” seek monetary relief

aggregating $100,000 or less).

Having identified the common meanings of the terms

“plaintiff” and “action” as referring to a party who initiates

a lawsuit, in contrast to a “claimant” who asserts a

claim for relief within a lawsuit, and having determined

that the context of those terms supports those common

meanings, we conclude that section 150.002's certificate-ofmerit requirement applies to a party who initiates the lawsuit,

and not to defendants or third-party defendants who assert

claims for relief within a suit.

C. Absurdity and the Purpose of the Statute

Jaster argues that construing section 150.002 to allow a party

to bring third-party claims or cross-claims without filing a

certificate of merit when a certificate of merit would be

required if the same party filed the same claim as a separate

suit achieves “an absurd result” and “thwarts” the purpose

of the statute. *569 See 382 S.W.3d at 565 (Henson, J.,

dissenting). Jaster is correct that courts should not enforce the

plain meaning of a statute's text if doing so “leads to absurd or

nonsensical results.” Molinet, 356 S.W.3d at 411. We do not

agree, however, that the application of the common meanings

of the words used in section 150.002 leads to “absurd results,”

and we will not ignore the words' common meanings to

achieve a purpose or object that is ambiguous at best.

[18] The “bar for reworking the words our Legislature

passed into law is high, and should be. The absurdity safety

valve is reserved for truly exceptional cases, and mere oddity

does not equal absurdity.” Combs v. Health Care Serv. Corp.,

401 S.W.3d 623, 630 (Tex.2013).

17 While the dissent and

others may think it “odd” for the statute to require claimants

to file a certificate of merit when they initiate a lawsuit but

not when they assert claims as part of an existing lawsuit,

there are legitimate reasons why the Legislature may have

chosen this approach. For one, as the majority in the court

of appeals noted, third-party plaintiffs and cross-claimants

do not control the time and place of suit, and may not have

adequate time to obtain the necessary expert analysis by the

time their third-party claim or cross-claim is due. 382 S.W.3d

at 560.

18

In addition, as Comet and Austin Design Group argue and

the court of appeals' majority also noted, many defendants

(like Comet in this case) deny the existence of any design

defect, but alternatively assert third-party claims against

a design professional, seeking contribution and indemnity

in the event that the plaintiff prevails. It would be far

more “odd” to require such defendants to file an expert's

certificate supporting the merits of the plaintiff's claim, thus

requiring the defendants to *570 abandon their denial of the

merits. Instead of trying to craft a necessarily complicated

certificate-of-merit requirement that would appropriately

address defendants who dispute any defect and those who

do not, those who seek contribution and indemnity and those

who seek affirmative rather than derivative relief, and those

who file only cross-claims against existing defendants and

those who file third-party claims against new defendants, the

Legislature may have decided that the better course was to

impose a simpler requirement that applies only to a plaintiff

who initiates a lawsuit.

[19] Ultimately, the most that can be said about the alleged

“absurdity” of the statute as we read it is that it provides

licensed and registered professionals with early protection

against most, but not all, meritless claims. Even so, all

claimants who assert such claims must support them with

adequate and sufficient evidence, and summary judgment

will be appropriate against those who cannot. Though some

might argue that this approach was not the best policy

choice, “we read unambiguous statutes as they are written,

not as they make the most policy sense.” Health Care

Servs., 401 S.W.3d at 629. Even if the result seems to

us to be unreasonable, “reasonableness is not the standard

for eschewing plain statutory language.” In re Blair, 408

S.W.3d 843, 859 (Tex.2013) (Boyd, J., concurring). That

high standard is absurdity, and we cannot say that this statute

achieves an absurd result.

Nor can we conclude that the statute's plain meaning is

inconsistent with the statute's purpose. Ultimately, the dissent

concludes that interpreting the statute in accordance with the

common, ordinary meaning of its words “partially impairs

the statute's purpose.” But with regard to the issue before us,
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all we know of the statute's purpose is that its purpose is to

require “the plaintiff” in “any action” to file a certificate of

merit “with the complaint.” Other than that, the statute does

not express its purpose.

[20] Nevertheless, the dissent asserts that the statute's

“manifest object” is “to require a prima facie showing

of liability at the time certain professionals are sued for

malpractice,” post at 579, and this Court has observed, albeit

in a different context, that its purpose is “to deter meritless

claims and bring them quickly to an end.” CTL/Thompson

Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 390 S.W.3d

299, 301 (Tex.2013). But deciding exactly which licensed and

registered professionals the Legislature intended to protect

(those sued as defendants, those brought into a case as thirdparty defendants, or both?) and which meritless claims the

Legislature intended to bring quickly to an end (those filed by

a party who initiates a lawsuit, those filed by defendants after

they are brought into a lawsuit, or both?) presents a different

question. “[N]o legislation pursues its purposes at all costs.

Deciding what competing values will or will not be sacrificed

to the achievement of a particular objective is the very essence

of legislative choice.” Rodriguez v. United States, 480 U.S.

522, 525–26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). We

must look to the statute's text to determine the policy choices

that the Legislature made when deciding how to achieve the

“manifest object” of section 150.002. “[I]t frustrates rather

than effectuates legislative intent simplistically to assume that

whatever furthers the statute's primary objective must be the

law.” Id. at 526, 107 S.Ct. 1391. We “are bound, not only by

the ultimate purposes [the Legislature] has selected, but by

the means it has deemed appropriate, and prescribed, for the

pursuit of those purposes.” *571 MCI Telecomm. Corp. v.

Am. Tel. & Tel. Co., 512 U.S. 218, 231 n. 4, 114 S.Ct. 2223,

129 L.Ed.2d 182 (1994). The language of section 150.002

indicates that its purpose is to deter and end meritless claims

that “the plaintiff” asserts “with the complaint” that initiates

an “action.” The Legislature has to balance many interests,

and for the reasons we have explained, it may have decided

that requirement strikes the proper balance. We must rely on

the words of the statute, rather than rewrite those words to

achieve an unstated purpose.

[21] [22] [23] Finally, we address the dissent's complaint

that our analysis of the statute demands too much “precision”

from the Legislature, at least if the goal of our analysis is to

“giv[e] effect to the Legislature's intent in the enactment.”

Post at 579. We disagree and instead conclude that “[w]e

must assume that the Legislature has done its very best

to express its intent in the words of the statute itself.” C

& H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 328

(Tex.1994) (Hecht, J., concurring and dissenting). We can

acknowledge the possibility that, although the Legislature

used the words “plaintiff” and “action” in chapter 150, it

really meant “claimant” and “cause of action.” Indeed, “[i]t

is at least theoretically possible that legislators—like judges

or anyone else—may make a mistake.” Brown v. De La

Cruz, 156 S.W.3d 560, 566 (Tex.2004). But even if that's

the case here, “courts are not empowered to ‘fix’ the mistake

by disregarding direct and clear statutory language that does

not create an absurdity.” Tex. Lottery Comm'n v. First State

Bank of DeQueen, 325 S.W.3d 628, 638 (Tex.2010) (citing

Brown, 156 S.W.3d at 566). “Courts are not responsible for

omissions in legislation, but we are responsible for a true

and fair interpretation of the law as it is written.” Id. at 637.

In other words, as today's dissenting justice has explained,

“[a] court must be careful not to substitute its own view of

what should have been intended for what was intended.” Lane

Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 321

(Tex.2000) (Hecht, J., concurring).

We conclude that construing the terms “the plaintiff” and

“any action” in section 150.002 according to their common

meanings does not lead to absurd results or undermine the

statute's stated purpose.

III.

Conclusion

We hold that the certificate-of-merit requirement in section

150.002 of the Civil Practice and Remedies Code applies to

“the plaintiff” who initiates an action for damages arising

out of the provision of professional services by a licensed or

registered professional, and does not apply to a defendant or

third-party defendant who asserts such claims. We therefore

affirm the court of appeals' judgment upholding the trial

court's denial of Jaster's motion to dismiss.

Justice WILLETT filed a concurring opinion, in which Justice

LEHRMANN joined in part, and in which Justice DEVINE

joined.
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Chief Justice HECHT filed a dissenting opinion, in which

Justice GREEN and Justice GUZMAN joined, and in which

Justice BROWN joined in all but Part II.

Justice WILLETT, joined in part by Justice LEHRMANN,

and joined by Justice DEVINE, concurring.

I join the plurality opinion 1 but write separately to

underscore the centrality of *572 semantic context in

statutory interpretation and the perils of resting on a statute's

supposed purpose.

I. Context Indicates that Third–Party Plaintiffs

Need Not Comply with Section 150.002.

I agree with the dissent that some words, taken in isolation,

do not yield a platonic form free of ambiguity. However,

context sheds light on meaning, and I believe the language of

this statute, viewed in context, excludes third-party plaintiffs

from the expert-affidavit requirement. Thus, the plurality

opinion's analysis of the context does not just support its

analysis of isolated words—it forms an essential foundation

for understanding those words.

Judges must navigate a narrow course “between a sterile

literalism which loses sight of the forest for the trees, and

a proper scruple against imputing meanings for which the

words give no warrant.” 2 For that reason, “[l]anguage cannot

be interpreted apart from context.” 3 Meaning is bound to

and bound by context. Words derive substance from the

ecosystem of language in which we find them, and we must

“consider the entire text, in view of its structure and of

the physical and logical relation of its many parts.” 4 The

meaning of language, plain or not, must be drawn from the

surrounding context, particularly everyday words and phrases

that are inordinately context-sensitive. Such a contextual

reading here demonstrates that “the plaintiff” who files “the

complaint” in an “action ... for damages” refers to the original

plaintiff in the suit, and not a third-party plaintiff.

I agree with the plurality opinion's analysis of the word

“action” in light of the statute's context and briefly add several

other contextual considerations that support the plurality

opinion's conclusion that the statute does not require thirdparty plaintiffs to file expert affidavits.

A. “Plaintiff” Refers Only to the Original Plaintiff.

If action refers to a civil suit as a whole and not to

individual claims, the meaning of “plaintiff” is necessarily

circumscribed. The statute says “the plaintiff.” Use of “the”

indicates that the language is trying to pinpoint one particular

party in the action or arbitration proceeding. Since “action”

must be referring to the suit as a whole, this singular emphasis

on a particular plaintiff seems to rest most naturally with

the plaintiff who initiated the suit. Likewise, the required

affidavit is to be filed with “the complaint.” Again, this

signals a focus on a particular party at a particular moment

in the lawsuit. “The complaint” most naturally refers to the

initial pleading that puts the “action” or suit into motion. Of

course, other plaintiffs may come along through intervention

or joinder. But when “the” shows up before both “plaintiff”

and “complaint,” it indicates the targeting of someone and

something specific—the plaintiff and petition that put the suit

in motion. This makes sense in light of the role of motions

to dismiss—they are designed as sentinels that guard the

gate and thus most naturally target the party who first comes

knocking. Moreover, the manifest object of the provision is

fulfilled after the initial plaintiff meets the requirement. There

is no *573 obvious need to require each additional plaintiff

who sues the defendant to file a separate affidavit in order

for this threshold protection to be provided because the initial

affidavit has already provided the desired filtering effect.

B. A Claim Seeking Contribution and

Indemnity Is Not an Action “For Damages.”

Additionally, section 150.002 does not apply to third-party

plaintiffs seeking indemnity and contribution because the

affidavit requirement is limited to actions “for damages.”

I would read this as damages sought by “the plaintiff”

who seeks a direct right to recover against the design

professional. Here, Comet does not seek damages—it seeks

only contribution and indemnity. When a defendant files

a third-party action against a third-party defendant seeking

contribution and indemnity, the defendant does not increase

the possible scope of damages that the plaintiff will ultimately

recover. The only changing dynamic is the proportionate

share of the damages to be paid. Thus, a claim for contribution

and indemnity is not an action “for damages” because it does

not provide an independent basis for any new damages. It

only adds another variable in determining how the damages

already sought by the original plaintiff will be allocated
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among co-liable parties. Thus, actions for contribution and

indemnity are not actions “for damages.”

When the language of section 150.002 is viewed as a whole,

the meaning of “plaintiff” becomes clear. “Action” refers to

civil proceedings, or the lawsuit as a whole. “The plaintiff”

therefore is the original plaintiff. Moreover, a third-party

plaintiff seeking only contribution and indemnity does not

have a claim “for damages.” Thus, a third-party plaintiff need

not comply with the expert-affidavit requirement.

II. Analysis of “Action” and “Plaintiff” in

Isolation Does Not Free Them of Ambiguity.

In analyzing “action” and “plaintiff,” the plurality opinion

relies on dictionaries, other statutory provisions, and caselaw.

These are helpful tools but often insufficient. “[T]he choice

among meanings must have a footing more solid than a

dictionary—which is a museum of words, an historical

catalog rather than a means to decode the work of

legislatures.” 5 Reliance on caselaw definitions faces a

similar problem. In both circumstances, the words are not

considered in the context of their use in the statute before us.

With caselaw, the problem is exacerbated because entirely

different circumstances may have animated our former

interpretation of a particular word. Evidence of meaning from

other statutes is also useful, but this can be tricky, as words

in statutes may take on unique or varying shades of meaning

depending on the context and the purpose for which they are

used. Because these tools for analyzing isolated words have

limitations, context becomes essential to clarity.

III. Jaster's Purposive Approach Does

Not Dethrone the Primacy of Text.

Jaster and the court of appeals' dissent rely more heavily than

CHIEF JUSTICE HECHT on the statute's alleged purpose.

Both advocate use of the absurdity doctrine to effectuate

the statute's purpose. That purpose, according to Jaster,

is to shelter design professionals from the *574 waste

of defending non-meritorious claims. He complains that

Comet's reading of the statute would frustrate this purpose

because the design professional directly sued by the original

plaintiff is protected, while the design professional who is

dragged into the lawsuit by a defendant eager to pass along

or share liability is not. Parties similarly situated are treated

differently, which may seem illogical and unfair. But this

result does not rise to the kind of absurdity that would justify

deviation from a fair reading of the text in favor of a putative

purpose.

Liberal use of the absurdity doctrine too often devolves

into purposive interpretation of statutes. And reliance

on legislative purpose always tempts but rarely tempers.

That temptation reaches its zenith when the upshot of a

straightforward reading seems illogical or unjust. But a fair

reading may well require an unfair result. When interpreting

the Legislature's words, we cannot revise them under the

guise of interpreting them. “Making law work is a proper goal

for judges only at the retail level; substance is in the main for

the political branches.” 6

Plus, careful textual commitment can encourage careful

drafting. When legislatures come to see courts as editors

rather than adjudicators, busy legislators may leave the

judiciary to tighten the screws on loose language down

the road. Vague legislation is sometimes inadvertent and

sometimes intentional, but it is always a recipe for increased

litigation and judicial guesswork. By sticking to our limited

role, judges do more to improve the quality of the law than

they ever could by decamping from text to hunt the snark of

unvoiced legislative purpose.

In order to carefully police our limited role, the bar for

application of the absurdity doctrine must remain high.

Peculiarity or unfairness is not sufficient to trigger the

absurdity doctrine. As we held recently—and unanimously

—statutory language “can often work peculiar outcomes,

including over- or under-inclusiveness.... [but] mere oddity

does not equal absurdity.... The absurdity backdrop requires

more than a curious loophole.” 7 In general, “if the legal

deck is stacked via technical statutory requirements, the

Legislature should reshuffle the equities, not us.” 8 Here,

the failure of the statute to protect design professionals

from third-party plaintiff claims while furnishing protection

from original plaintiffs may be “quirky,” but that is “quite

different from proving it was quite impossible that any

rational Legislature could have intended it.” 9

Indeed, a rational Legislature could have wanted to exclude

third-party plaintiffs because requiring their compliance with

section 150.002 creates a “quirky” result of its own. Section

150.002 requires submission of an expert affidavit along

with the complaint that sets forth “specifically at least one

negligent act, error, or omission claimed to exist and the
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factual basis for each such claim.” It is not clear whether this

affidavit must lay out some factual basis for each essential

element of a negligence claim, but it must at least lay out

the factual basis for the “negligent act, error, or omission.”

A persuasive affidavit regarding a negligent act will often

require evidence of the alleged defect resulting from the

design professional's supposed *575 negligence. However,

this kind of evidence will often also constitute evidence

helpful to establish the original plaintiff's claim against the

defendant home-builder before the plaintiff has presented

his case-in-chief, moved for summary judgment, or even

engaged in full discovery. In other words, application of

section 150.002 to a third-party plaintiff will often place

the defendant/third-party plaintiff in the unenviable position

of either breaking ground for his own burial or foregoing

his right to indemnity or contribution. While this may not

amount to an absurd result, it certainly awakens our sense

of unfairness in the same manner as the supposed absurdity

of not holding third-party plaintiffs to the same heightened

pleading requirement as original plaintiffs. It is not our place

to choose between these anomalous results.

Careful textual analysis here points to a clear result, and the

plurality opinion rightly declines to engage in the purposive

analysis urged by Jaster. Here, context clearly indicates that

the text does not require third-party plaintiffs to file an expert

affidavit with the third-party petition.

Chief Justice HECHT, joined by Justice GREEN and Justice

GUZMAN, and in all but Part II by Justice BROWN,

dissenting.

In this case and another decided today, In re Ford, 1 the Court

has written more on the subject of who is a “plaintiff” than

I imagine all the other courts in the English-speaking world

have ever written, all together. The distinction is a dubious

one.

The cases are quite different, of course—the issue in this

case is who the plaintiff is, while in Ford the issue is who

a plaintiff is, and although both cases involve statutes in

the Texas Civil Practice and Remedies Code, 2 the statutes

are in separate volumes. So it is hardly surprising that the

cases reach different, and arguably contradictory, outcomes.

Without trying to put too fine a point on it, the Court holds in

this case that a third-party plaintiff cannot be the plaintiff in

any action, and is of two minds about whether an intervenor

can be the plaintiff, while in Ford the Court holds that both

a third-party plaintiff and an intervenor can be a plaintiff,

so long as they are not also defendants. Not to complicate

matters, the author of the Court's opinion in Ford agrees that

this case is correctly decided, but the author of the Court's

opinion in this case dissents in Ford. And another dissenter

in Ford joins the opinion in this case—but that begins to

complicate matters.

I suspect that these cases will leave many readers scratching

their heads. Though the Court is trying to adhere to the

statutory text, whatever the result, it opens itself to the

criticism that its analysis is picky and detached from reality.

Intending to be careful, the Court risks being viewed as

conducting a contest among the Pharisees in the Temple of

Textualism over who is the most devout.

Faithfulness to the principle that the words of a statute are

the law may necessitate embracing a result that is peculiar or

worse, yet unavoidable. But unnecessarily embracing such a

result undermines the principle by suggesting that more and

less reasonable interpretations are to be treated equally. The

Judiciary's sole objective in interpreting statutes is to give

effect to the Legislature's intent expressed in its words. Out of

respect for the Legislative Branch, we must read their words

the way *576 they have written them—to make sense. I am

not confident we have achieved that result in this case and

therefore respectfully dissent.

I

By statute, “the plaintiff” in “any action or arbitration

proceeding” for malpractice by certain professionals must

ordinarily file “with the complaint” an affidavit supporting

each theory of recovery. 3 All we have to decide is whether

this requirement applies when a professional is sued by a

third-party plaintiff—a defendant suing a non-party. 4 One

might think this would be pretty easy: a third-party plaintiff

is, in name itself, a plaintiff, and a suit is an action, so yes,

the requirement applies. But the reader will by now have seen

from the plurality and concurring opinions that the issue is far

more complicated than that.

The answer, according to the plurality opinion, depends on the

“plain”, “common”, and “ordinary” meaning of the statute's

operative words, “the plaintiff” and “any action”. 5 The

plurality opinion then embarks on what is the most exhaustive

treatment of that subject in the law of *577 Texas, if not
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all of American jurisprudence. It is masterful. I would not

challenge a word, and there is certainly nothing left to add.

All I can do of any use is to summarize the plurality opinion's

analysis and then offer a few reflections.

According to the plurality opinion:

The word “action” is sometimes used “more broadly” to

refer to a “cause of action”, but an “action” is really an

entire lawsuit, and a “cause of action” is only a “right to

relief”, or at least a “claim” to such a right. 6 A person

with a “cause of action” can bring an “action”, which is

“generally synonymous with ‘suit’ ”, except that “the word

‘suit’ can be ‘more general in its comprehension than the word

“action” ’ ”. 7 Historically, an “action” was a legal proceeding

and a “suit” was an equitable one. 8 The important thing is

that both an “action” and a “suit” are “proceedings”, though

actually, all three words, while different, have been used

interchangeably, along with “case”, “lawsuit”, and “cause”. 9

An “action” is a “cause”, but it is not a “cause of action”. That

is, except for one time in Rule 85 of the Texas Rules of Civil

Procedure.

10

Furthermore:

Dictionaries define “plaintiff” as the person who initiates

an “action” or “suit”. 11 Third-party plaintiffs and crossclaimants “share some similarities” with “plaintiffs”, and the

law treats them similarly “in limited respects”. For example,

third-party plaintiffs and cross-claimants initiate proceedings

against third-party defendants and cross-defendants, and

they are plaintiffs for res judicata purposes. 12 But thirdparty plaintiffs and cross-claimants are not “plaintiffs” in an

“action” because they initiated only part of the suit, not the

whole suit. 13 There must be “a direct relationship between

the words ‘plaintiff’ and ‘action.’ ” 14 All “plaintiffs” are

“claimants”, but not all “claimants” are “plaintiffs”, and

“[t]hroughout the Civil Practices and Remedies Code,” that

is the way those words are defined and used. When the

Legislature says “plaintiff”, it means the person initiating

suit, and when it says “claimant”, it means “plaintiffs” and

others who assert “causes of action”. 15 Actually, that is

not quite right. Chapter 74 uses the terms “plaintiff” and

“claimant” interchangeably in the very same sentence. 16

Also, some “plaintiffs” do not initiate suit but intervene or

are involuntarily joined, but by being included among the

“plaintiffs” who do initiate suit, they become “plaintiffs”,

though maybe not under the statute in this case, a question we

need not decide. 17

Conclusion: Third-party plaintiffs are not plaintiffs.

*578 To the plurality opinion's splendid analysis and

conclusion, I respectfully offer five reservations.

First: The plurality opinion has proven beyond any doubt that

sometimes third-party plaintiffs are plaintiffs and sometimes

not, sometimes third-party actions are actions and sometimes

not, and while sometimes the variations can be explained,

sometimes they cannot be. Any remaining doubt is quickly

dispelled by searching caselaw and statutes for the terms

“third-party plaintiff”, “third-party action”, and “third-party

cause of action”, and noting the various, inconsistent ways in

which those terms are used. When a word is used sometimes

to mean one thing and sometimes another, neither is “plain”,

“common”, or “ordinary” to the exclusion of the other.

Ironically, the plurality opinion's labors to prescribe definite

meanings for “plaintiff” and “action” only demonstrate that

for it, the words “plain”, “common”, and “ordinary” have no

real meaning at all.

Second: The underlying assumption of the plurality opinion's

approach is that when it finally arrives at the real meaning

of the inescapably imprecise words, “plaintiff” and “action”,

trudging through dictionaries, cases, and statutes, parsing

and explaining, and finally discarding what it considers

to be misuses of the words, the end result will be what

the Legislature intended without going through the same

process. When lawyers and judges have put words to various,

inconsistent uses over time, legislators simply cannot be

presumed, alone of all creatures, to be precise—or closer to

the point, to have been more precise in one statute than they

were in others. And in Chapter 150, they, in fact, were not

precise at all.

For example, a “complaint”, with which a certificate must

be filed, is not part of Texas civil procedure. Obviously, a

“petition” is intended. Would the Court hold that Chapter

150 is dead letter because it applies only to the filing of a

“complaint”, which is certainly not a “petition”? Heavens, no,

the plurality opinion says. That would be absurd. 18

For another example, a certificate must be filed by “the

plaintiff” in an “arbitration proceeding”, but in an arbitration

proceeding, the person seeking relief is uniformly referred
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to as a “claimant”, not as a “plaintiff”. 19 Does this mean

that certificates of merit need never be filed in arbitration

proceedings? I suppose the Court would think that absurd,

too.

Yet if there is any justification for interpreting “action”

strictly, “plaintiff” somewhat strictly, and “complaint”

loosely, all three words in the same sentence, it is not

apparent. More importantly, the process of interpreting

statutes cannot legitimately ascribe a precision to them that

the process *579 of writing them gave no indication, and

probably was incapable, of producing. At least, it cannot do so

with the professed purpose of giving effect to the Legislature's

intent in the enactment. Judicial interpretation should not

imagine a Legislature that does not exist.

Third: As the plurality opinion candidly acknowledges, “the

terms ‘plaintiff’ and ‘action’ may sometimes be used more

broadly than their common meanings would support.” 20

When the Legislature has used the same words to mean

different things from time to time, at least once in the same

sentence, how is it possible to determine from the words

alone what it meant this time? In Chapter 74 of the Civil

Practice and Remedies Code, the Legislature uses “plaintiff”

to mean “claimant”, which includes third-party plaintiffs. 21

How can the Court ascertain, from nothing more than the

words themselves, that the Legislature did not intend the same

meaning in Chapter 150?

Fourth: The plurality opinion demonstrates that judicial

interpretation of statutes cannot focus on text alone; it must

examine the text in context. The plurality and concurring

opinions profess agreement that context is important, but by

context, both mean only surrounding words, not the reality

they are intended to affect. The concurring opinion warns

against “a sterile literalism which loses sight of the forest for

the trees”, but staring at little clumps of trees—losing sight of

the forest for the groves—is no more fertile an approach.

The context the Court ignores is the world in which the

words it has so carefully examined operate. It has long

been the Court's rule that “a statute is to be construed

with reference to its manifest object, and if the language is

susceptible of two constructions, one of which will carry out

and the other defeat such manifest object, it should receive

the former construction.” 22 But the rule is disregarded in

a Rabbinic fixation with individual words. The plurality

opinion's impressive analysis may be correct in the abstract.

It may be that “plaintiff” and “action” should always have

only the meanings the Court ascribes to them. But that has

never been true—hence, the need for lengthy analysis—and

to demand such exactitude in this case impairs the statute's

purpose.

The manifest object of Chapter 150 is to require a prima

facie showing of liability at the time certain professionals are

sued for malpractice. Remarkably, and tellingly, the Court

states that it simply cannot tell what the manifest object

of Chapter 150 is because it cannot be sure exactly which

professionals are to be protected or precisely from what

claims. An obvious answer, especially when the Legislature

has not said otherwise, is: all. The concurring opinion admits

that imposing the requirement only on a plaintiff suing a

defendant and not on a third-party plaintiff suing a third-party

defendant “may be ‘quirky’ ”, 23 but the concurring opinion

and the plurality opinion conceive two reasons why this was

exactly what the Legislature intended.

One is that a third-party plaintiff may be caught off-guard by

a lawsuit and not have enough time to procure the required

affidavit before the third-party petition must be filed. 24 But

the third-party plaintiff will *580 never have less than

51 days, 25 and that time may be extended by motion or

agreement. It is possible that the Legislature could have

considered this time pressure sufficient reason to except an

entire group of claims from a requirement intended to protect

all professionals, but it is just as likely that the Legislature

thought the opposite and did not create the loophole the Court

finds today.

Another motive the Court thinks the Legislature might

have had for excluding third-party plaintiffs from the

statutory requirement is that to include them is “necessarily

complicated” because third-party plaintiffs and crossclaimants may be seeking “affirmative rather than derivative

relief” or only “contribution and indemnity”. 26 But the

Court simply presumes that it is “appropriate[ ]” to tailor

the affidavit requirement to each such situation. It is far

simpler, and no less appropriate, to treat all claimants the

same: a charge of malpractice cannot be made against

these professionals without something more than mere

allegations to back it up. And the cross-claimant seeking only

contribution and indemnity can use a certificate previously

filed by a plaintiff.
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Fifth: Despite every effort, the Court itself cannot plough

a straight furrow. Third-party plaintiffs are not covered by

the statute, even if the third-party action is severed, so that

the third-party plaintiff becomes the plaintiff in the severed

action and its initiator, just as if the third-party action had

been filed separately to begin with. And when parties joined

as plaintiffs after the action has been initiated are the first to

assert a malpractice claim against a professional, the Court

cannot say for sure whether they are plaintiffs or not. It feebly

hints that they may be plaintiffs by association, falling prey to

the smudging of meanings it is trying to rectify, then declines

to answer its own question lest its explanation be advisory. 27

II

And the plough hits a rock in Ford. That case involves Section

71.051 regarding forum non conveniens. The statute requires

dismissal of actions falling under that doctrine, as determined

by applying several factors, but excepts cases in which “the

plaintiff is a legal resident of this state.” 28 The statute also

defines “plaintiff” as “a party seeking recovery of damages

for personal injury or wrongful death” but expressly excludes

third-party plaintiffs. 29

The problem in the case is this. A nonresident plaintiff

sued his deceased brother's estate for injuries suffered in

a vehicular accident in Mexico in which the brother, who

owned and maintained the vehicle, was killed. The estate, in

turn, sued Ford, and then so did the plaintiff. At that point,

the case could have been dismissed under Section 71.051. But

the decedent's wrongful death beneficiaries, some of whom

are residents, intervened, also suing Ford, but not, of course,

suing the defendant estate. If the intervenors are plaintiffs, the

case cannot be dismissed. But are they third-party plaintiffs,

statutorily excluded from “plaintiffs”? No, the Court holds,

because in context, the third-party plaintiffs referred to in the

*581 statute must also be defendants, and the intervenors are

more aligned with the plaintiff than with the defendant.

I join in the Court's opinion in Ford, though the Court's

detailed analysis of the text and the alignment of the parties

is similar to the Court's analysis in the present case, which

as I have said, I find misguided. Unquestionably, however,

had the intervenors filed their own suit, it could not have

been dismissed and could have been consolidated with the

original plaintiff's suit, or if that suit had been dismissed, the

plaintiff could have intervened in the other suit. Thus, the

action involving all the parties and claims can be brought in

Texas without being dismissed under Section 71.051. So the

question becomes: are the procedural differences in the way

the case was brought and the way it could have been brought

significant to the ostensible purpose of Section 71.051? The

answer is plainly no. Without answering that question, the

dissents would dismiss the intervenors' claims because, in

this action, they are more aligned with the defendant's. In the

dissents' view, the intervenors simply made an error that cost

them their case in Texas.

In my view, while it is possible to read the statute as the

dissents do, it is at least as reasonable to read it as the Court

does, and it is impossible to think the Legislature intended,

as between the two, the interpretation that leads to different

results for essentially identical parties. And we should not

think, as the dissents do, that the Legislature, in trying to

preserve a Texas forum for Texas residents, craftily laid a trap

so that by suing one way rather than another, they would lose

their rights altogether.

In both this case and Ford, we must interpret statutory

language that, in the circumstances presented, is imprecise.

In both cases, the statutory purpose is evident, not something

that we must supply. “The evident purpose of what a text

seeks to achieve is an essential element of context that gives

meaning to words.” 30 When that purpose can be determined

from the text, as it can easily be in these cases, “[a] textually

permissible interpretation that furthers rather than obstructs

[a statute's] purpose should be favored.” 31

III

Finally, I add a brief word in response to the argument that

a stricter judicial adherence to text will produce more careful

statutory drafting. For one thing, I doubt whether that is true,

or even possible. This Court pores over every word, every

comma, in its opinions, trying to be as exact as possible, and

still disagreements regularly arise—often even among us—

about what was really said. The legislative process does not

usually allow for the same care to be taken in the choice

of language. There are many authors, the text is subject

to amendments of all sorts, friendly and unfriendly, and in

the end, the product is often one of compromise, which is

essential to the legislative process.

More importantly, the Judiciary is not, in my view, entitled

to insist that the Legislature write for our approval. Our
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)

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objective in interpreting statutes is to find the Legislature's

intent in the words it enacted, not what a group of

grammarians and researchers might have intended by those

words. This does not justify substituting our meaning for the

Legislature's, or what we might consider desirable policies for

those it has chosen. But proper statutory *582 interpretation

does require us to give careful consideration to the reality in

which and for which the Legislature acted. For legislators,

each statute has a purpose, which is the context in which

the words speak. When we can find that purpose without

inventing it, and pursue it without adding or detracting from

it, it should inform our interpretation.

* * * * * *

Since the Tower of Babel, expression is inexact. Joseph Heller

has written powerfully of the importance of context:

“Help!” he shrieked shrilly in a voice

strangling in its own emotion, as the

policemen carried him to the open

doors in the rear of the ambulance

and threw him inside. “Police! Help!

Police!” The doors were shut and

bolted, and the ambulance raced away.

There was a humorless irony in the

ludicrous panic of the man screaming

for help to the police while policemen

were all around him. Yossarian smiled

wryly at the futile and ridiculous cry

for aid, then saw with a start that

the words were ambiguous, realized

with alarm that they were not perhaps,

intended as a call for police but as a

heroic warning from the grave by a

doomed friend to everyone who was

not a policeman with a club and gun

and a mob of other policemen with

clubs and guns to back him up. “Help!

Police!” the man had cried, and he

could have been shouting of danger. 32

The starting point of textual analysis must be the words

chosen, but it cannot be the ending point, lest the exercise be

criticized as verbomania. In my view, the Court in this case

rejects a simple, reasonable—and yes, plain—interpretation

of a statute in favor of a demanding but inconsistent word

analysis that partially impairs the statute's purpose. The Court

narrowly avoids doing the same thing in Ford. We would not

interpret our own work this way, and it is no more appropriate

because the work is that of another Branch of Government. I

respectfully dissent.

All Citations

438 S.W.3d 556, 57 Tex. Sup. Ct. J. 1005

Footnotes

1 Dawoud also sued Comet's principals, Joe and Laura Schneider. We refer to all three defendants jointly as “Comet.”

2 Comet later filed a second amended third-party petition, attaching the same certificate of merit.

3 The statute expressly authorizes an interlocutory appeal from an order granting or denying a motion to dismiss. See TEX.

CIV. PRAC. & REM.CODE § 150.002(f).

4 Our references to section 150.002 are to the 2005 version of the statute, which the parties agree governs this case. The

Legislature has since amended section 150.002, but the current version still imposes the certificate-of-merit requirement

on “the plaintiff” in “any action or arbitration proceeding for damages arising out of the provision of professional services

by a licensed or registered professional,” including a licensed professional engineer. See TEX. CIV. PRAC. & REM.CODE

§ 150.002(a). Thus, our construction of the 2005 version also applies to the current version of the statute.

5 This provision was found in subsection (d) in the 2005 version of the statute and was substantively the same for purposes

of this case. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847, 896–97 (amended

2005, 2009) (current version codified at TEX. CIV. PRAC. & REM.CODE § 150.002(e)).

6 Chapter 150 defines “licensed or registered professional” to include licensed architects, licensed professional engineers,

registered professional land surveyors, registered landscape architects, and firms in which such licensed or registered

professionals practice. See TEX. CIV. PRAC. & REM.CODE § 150.001(1–a).

7 Comet and Austin Design Group argue additional grounds for affirming the appellate court's judgment, but we need not

reach them in light of our construction of the statute.
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8 We recently addressed section 150.002 in CTL/Thompson Tex., L.L.C. v. Starwood Homeowners Ass'n, but that appeal

did not involve the issue of whether the certificate-of-merit requirement applies to parties other than a “plaintiff.” 390

S.W.3d 299 (Tex.2013).

9 By contrast, the dissent begins with its own conclusion, suggesting that the resolution of this case should “be pretty easy”

because, after all, it says (without citation), “a third-party plaintiff is, in name itself, a plaintiff, and a suit is an action.” Post

at 576 (Hecht, C.J., dissenting) (emphasis in original). We cannot be quite so cavalier when fulfilling our duty to construe

Texas statutes, and we cannot begin our analysis with our own unsupported conclusions on the very issue before us.

We begin, instead, with the language of the statute.

10 Examples of our reliance on these various sources to determine a word's common, ordinary meaning are too numerous

to cite, but for examples from opinions we issued just within the past two years, see Zanchi v. Lane, 408 S.W.3d 373,

378 (Tex.2013) (relying on dictionary definitions, our prior decisions, the rules of procedure, and statutory definitions for

the common meaning of “party”); Rachal v. Reitz, 403 S.W.3d 840, 845 (Tex.2013) (relying on dictionary definitions and

treatises for the common meaning of “agreement”); Morton v. Nguyen, 412 S.W.3d 506, 510–12 (Tex.2013) (relying on

our prior decisions, dictionary definitions, and the Restatement for the common meanings of “rescission” and “refund”);

City of Hous. v. Bates, 406 S.W.3d 539, 545–47 (Tex.2013) (relying on dictionary definitions and a city ordinance for

the common meanings of “leave” and “salary”); State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 181 (Tex.2013)

(per curiam) (relying on dictionary definition of “novelty”); Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 n.

16 (Tex.2012) (relying on dictionary definitions and our prior opinions for the common meaning of “requisite”); Evanston

Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 382–83 (Tex.2012) (relying on our prior opinions, other statutes, and

treatises for the common meaning of “property”); Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex.2012)

(relying on dictionary definition for common meanings of “distribution” and “transmission”).

11 See also Magill v. Watson, 409 S.W.3d 673, 679 (Tex.App.-Houston [1st Dist.] 2013, no pet.) (a “cause of action” consists

of “those facts entitling one to institute and maintain an action at law or in equity”); City of Texarkana v. Cities of New

Boston, 141 S.W.3d 778, 788 (Tex.App.-Texarkana 2004, no pet.) (stating that a “pleading” is the vehicle for “alleging

a cause of action” and thus the “means by which one party institutes a lawsuit.”); Elmo v. James, 282 S.W. 835, 839

(Tex.Civ.App.-Fort Worth 1926, writ dism'd w.o.j.) (“The facts necessary to be alleged and proved in order to obtain the

relief sought, and on account of which the action is instituted, logically constitute the cause of action.”).

12 Generally, our rules of civil procedure also recognize the distinction between an “action,” “suit,” or “cause” and a “cause

of action” or “claim.” Compare, e.g., TEX.R. CIV. P. 86 (referring to transfer of venue “from the county where the action is

pending”) (emphasis added) and TEX.R. CIV. P. 89 (providing that the “cause” shall be transferred and “such suit” filed

in the new county, but if “the cause” is “severable as to parties defendant” it must be “ordered transferred as to one or

more defendants but not as to all”) with TEX.R. CIV. P. 91a.7 (providing for dismissal of a baseless “cause of action”

and award of attorney's fees incurred “with respect to the challenged cause of action,” except in “an action” by or against

a governmental entity or public official).

13 We agree with the concurring opinion's observation that, because our “tools for analyzing isolated words have limitations,

context becomes essential to clarity.” Post at 573 (Willett, J., concurring). But as the concurring and dissenting justices

have previously acknowledged, both the words and the context matter. City of Rockwall v. Hughes, 246 S.W.3d 621, 632

(Tex.2008) (“When Searching for Statutory Meaning, Words Matter–And So Does Context.”) (Willett, J., joined by Hecht,

J., dissenting). If we have engaged in an “exhaustive” (if not “masterful,” “splendid,” and “impressive”) analysis, post at

576–77 (Hecht, C.J., dissenting), of the common, ordinary meanings of “plaintiff” and “action,” we have done so only and

precisely because “words matter.” Far from being “detached from reality,” post at 575 (Hecht, C.J., dissenting), when it

comes to fulfilling our role of interpreting statutes, the language of the law is our reality, at least unless we decide to start

writing the law ourselves. Because the statute does not define the determinative words, we determine and apply their

plain, ordinary, common meaning “unless a different meaning is apparent from the context.” Molinet, 356 S.W.3d at 411

(emphasis added). Having determined the words' common, ordinary meanings, we now consider whether the context

compels a different meaning.

14 We have identified one instance within the Civil Practice and Remedies Code, for example, where it appears that the

term “plaintiff” is used interchangeably with the broader term “claimant.” See TEX. CIV. PRAC. & REM.CODE § 74.351(c)

(“If the claimant does not receive notice of the court's ruling granting the extension until after the 120–day deadline has

passed, then the 30–day extension shall run from the date the plaintiff first received the notice.”). Similarly, we have

identified one instance within our Rules of Civil Procedure where it appears that the term “action” is used as a short-hand

reference to refer to a cross-claim. See TEX.R. CIV. P. 85 (providing that a defendant's original answer may “present

a cross-action”).
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15 We note that, as the Civil Practice and Remedies Code recognizes, there may be more than one plaintiff in a single

lawsuit, “whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than

one plaintiff, or otherwise.” TEX. CIV. PRAC. & REM.CODE § 15.003(a). The recognition that those added to the suit

by joinder or intervention may become “plaintiffs” is also consistent with the common meaning of the term, as such

joinder or intervention simply places them among those who initiated the suit. See, e.g., TEX.R. CIV. P. 40 (explaining

circumstances in which “[a]ll persons may join in one action as plaintiffs ”) (emphasis added). Because this case does

not present the issue of whether section 150.002 requires each individual plaintiff in a multi-plaintiff suit and those added

as plaintiffs by joinder or intervention to file separate certificates of merit, we may not address that issue here without

rendering an advisory opinion.

16 Thus, as the dissent agrees, a third-party plaintiff, under Rule 38, is not a “plaintiff” but “a defendant suing a non-party.”

Post at 576 (emphasis added).

17 One example of an absurd result may be found in section 150.002(a)'s use of the word “complaint.” As the dissent

notes, while parties in federal courts file “complaints,” see, e.g., FED.R.CIV.P. 3 (“A civil action is commenced by filing a

complaint with the court.”), parties in Texas courts file “petitions,” see, e.g., TEX.R. CIV. P. 22 (“A civil suit in the district

or county court shall be commenced by a petition filed in the office of the clerk.”), so a “ ‘complaint’ ... is not part of Texas

civil procedure.” Post at 578. The dissent wonders why we do not “hold that Chapter 150 is dead letter because it applies

only to the filing of a ‘complaint’, which is certainly not a ‘petition.’ ” Post at 578. The absurdity doctrine answers that

question. To construe section 150.002 of the Texas Civil Practice & Remedies Code so that it does not apply to any suit

filed in Texas courts would present the kind of “exceptional” result that would qualify as “absurd.” At a minimum, it would

completely nullify the statute as to all such suits, and we cannot “lightly presume that the Legislature may have done

[such] a useless act.” Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 485 (Tex.1998). We therefore

construe the term “complaint” to mean “petition,” contrary to its common meaning, but we do so because the context of

the term within the statute as a whole compels that result, not because we think doing so promotes a better public policy

or would be more effective in promoting what we assume to be the statute's purpose.

18 The dissent suggests that section 150.002(c) alleviates any such time-crunch issues because the “time may be extended

by motion or agreement.” Post at 580. The “such time” to which this provision refers, however, appears to be the thirtyday extension that subsection (c) grants for cases “in which the period of limitation will expire within 10 days of the date

of filing and, because of such time constraints, the plaintiff has alleged that [a certificate of merit] could not be prepared.”

TEX. CIV. PRAC. & REM.CODE § 150.002(c). Although the parties do not present, and we do not decide, that issue here,

it at least appears that subsection (c)'s justice-based extension is available only when the plaintiff files the action within 10

days before limitations expires. If that is so, then subsection (c) would not be nearly as adequate as the dissent suggests.

1 JUSTICE LEHRMANN does not join the plurality opinion, but joins the remainder of this concurrence.

2 N.Y. Trust Co. v. Comm'r of Internal Revenue, 68 F.2d 19, 20 (2d Cir.1933) (L. Hand, J.).

3 TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex.2011).

4 ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 167 (2012).

5 Frank H. Easterbrook, Text, History, and Structure in Statutory Construction, 17 HARV. J.L. & PUB. POL'YY 61, 67 (1994).

6 Id. at 64 (emphasis in original).

7 Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex.2013).

8 Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 928 (Tex.2011).

9 Combs, 401 S.W.3d at 631.

1 442 S.W.3d 265, 2014 WL 2994622 (Tex.2014).

2 Unless otherwise indicated, all statutory references are to the Texas Civil Practice and Remedies Code.

3 TEX. CIV. PRAC. & REM.CODE § 150.002(a) (“In any action or arbitration proceeding for damages arising out of the

provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the

complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect,

or registered professional land surveyor who: (1) is competent to testify; (2) holds the same professional license or

registration as the defendant; and (3) is knowledgeable in the area of practice of the defendant and offers testimony based

on the person's: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice.”); § 150.002(b)

(“The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any,

or other action, error, or omission of the licensed or registered professional in providing the professional service, including

any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual

basis for each such claim.”); § 150.002(c) (“The contemporaneous filing requirement of Subsection (a) shall not apply
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)

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to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time

constraints, the plaintiff has alleged that an affidavit of a third-party licensed architect, licensed professional engineer,

registered landscape architect, or registered professional land surveyor could not be prepared. In such cases, the plaintiff

shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on

motion, after hearing and for good cause, extend such time as it shall determine justice requires.”); § 150.001(1–a) (“

‘Licensed or registered professional’ means a licensed architect, licensed professional engineer, registered professional

land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices,

including but not limited to a corporation, professional corporation, limited liability corporation, partnership, limited liability

partnership, sole proprietorship, joint venture, or any other business entity.”).

4 TEX.R. CIV. P. 38(a) (“At any time after commencement of the action a defending party, as a third-party plaintiff, may

cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to

the plaintiff for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the

service if he files the third-party petition not later than thirty (30) days after he serves his original answer. Otherwise, he

must obtain leave on motion upon notice to all parties to the action.”).

5 Ante at 562 (“We limit our analysis to the words of the statute and apply the plain meaning of those words ‘unless a

different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.’ ”); id. at

563 (“Chapter 150 does not define the terms ‘plaintiff’ or ‘action,’ so we must give them their common, ordinary meaning

unless the statute clearly indicates a different result.”).

6 Ante at 564.

7 Ante at 564.

8 Ante at 564.

9 Ante at 565.

10 Ante at 564 n. 11; see TEX.R. CIV. P. 85 (“The original answer ... may present a cross-action....”).

11 Ante at 565.

12 Ante at 569.

13 Ante at 569.

14 Ante at 563.

15 Ante at 567.

16 Ante at 566 & n. 14; see TEX. CIV. PRAC. & REM.CODE § 74.351(c) (“If the claimant does not receive notice of the

court's ruling granting the extension [to file an expert report] until after the 120–day deadline has passed, then the 30–

day extension shall run from the date the plaintiff first received the notice.”).

17 Ante at 568 n. 15.

18 Ante at 569 n. 17.

19 See Rules and Procedures, AMERICAN ARBITRATION ASSOCIATION, https://www.adr.org/aaa/faces/rules (last visited

July 1, 2014) (no reference in rules to “plaintiff”); Code of Arbitration Procedure, FINANCIAL INDUSTRY REGULATORY

AUTHORITY, http://www.finra.org/Arbitration AndMediation/Arbitration/Rules/CodeofArbitrationProcedure/ (last visited

July 1, 2014); Rules of the Judicial Arbitration and Mediation Services, available at ADR Clauses, Rules, and Procedures,

JAMS, http://www.jamsadr. com/rules-clauses/ (last visited July 1, 2014); Arbitration Rules, WORLD INTELLECTUAL

PROPERTY ORGANIZATION, http://www.wipo. int/amc/en/arbitration/rules/newrules.html (last visited July 1, 2014);

ICC Rules of Arbitration, INTERNATIONAL CHAMBER OF COMMERCE, http://www. iccwbo.org/products-and-services/

arbitration-and-adr/arbitration/icc-rules-of-arbitration (last visited July 1, 2014); Rules and Procedures, INTERNATIONAL

CENTRE FOR DISPUTE RESOLUTION, https://www.icdr. org/icdr/faces/i_search/i_rule? (the international division of

AAA).

20 Ante at 566.

21 Supra note 567.

22 Citizens Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344, 348 (Tex.1979).

23 Ante at 574.

24 Ante at 575.

25 A defendant sued on Monday has 21 days in which to answer, TEX.R. CIV. P. 15, and 30 more days in which to file a

third-party petition as a matter of right, TEX.R. CIV. P. 38.

26 Ante at 570.

27 Ante at 568 n. 15.
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28 TEX. CIV. PRAC. & REM.CODE § 71.051(e).

29 Id. § 71.051(h)(2) (counterclaimants and cross-claimants are also excluded).

30 ANTONIN SCALIA & BRYAN GARNER, READING LAW 20 (2012).

31 Id. at 63.

32 JOSEPH HELLER, CATCH–22 425 (Dell ed.1985) (1961).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

334 S.W.3d 16

Court of Appeals of Texas,

Dallas.

Thomas LEE, Helen Wilems, Individually and as

Representative of the Estate of Felicia Marie Lee,

Deceased, Hartford Casualty General Agency, Inc.,

Southern County Mutual Insurance Co., Copart of

Houston, Inc., Copart of Texas, Inc., and Houston

Copart Salvage Auto Auctions, LP, Appellants,

v.

GST TRANSPORT SYSTEM, LP,

and Henry Daneford, Appellees.

No. 05–08–00118–CV. | Oct. 1, 2008.

Synopsis

Background: Northbound motorist and his employer

brought action against southbound motorist, passenger's

mother, individually and as representative of her daughter's

estate, insurance companies, and salvage company, alleging

southbound motorist was negligent in fatal car accident.

Passenger's mother filed a competing lawsuit against

northbound motorist and his employer in another county. The

14th Judicial District Court, Dallas County, Mary Murphy,

J., denied mother's plea to abate and asserted dominant

jurisdiction. Mother appealed.

[Holding:] The Court of Appeals, Molly Francis, J., held that

“amended petition” filed by mother in the competing lawsuit

did not relate back to presuit discovery petition filed earlier

by mother in that suit, and thus the present suit was filed first,

giving the court dominant jurisdiction.

Affirmed.

Attorneys and Law Firms

*17 Braden W. Sparks, Braden W. Sparks, P.C., Dallas, TX,

for Appellant.

E. John Gorman, Ronald L. Bair, Bairhilty, PC, Houston, TX,

for Appellee.

Before Justices MOSELEY, RICHTER, and FRANCIS.

OPINION

Opinion by Justice FRANCIS.

Two competing lawsuits arising out of a fatality collision

were filed in district courts in Dallas and Madison

counties. Both trial courts asserted dominant jurisdiction.

This interlocutory appeal comes to us on an agreed order

on a controlling question of law. See TEX. CIV. PRAC. &

REM.CODE ANN. § 51.014(d) (Vernon 2008). The issue

presented is: “Under the ‘relation-back’ and/or the ‘first-filed’

doctrine(s), which is the court of dominant jurisdiction?”

To answer the issue, we must decide whether the relationback doctrine, embodied in section 16.068 of the Texas Civil

Practice and Remedies Code, applies to a presuit discovery

petition when determining which lawsuit was filed first. For

reasons set out below, we conclude it does not. Consequently,

we conclude the Dallas County case was the first-filed suit

and affirm the trial court's order denying abatement.

Felicia and Thomas Lee were traveling south on Interstate

45 in Madison County when Thomas Lee lost control of his

car, crossed the median, and collided with a northbound GST

Transport Systems tractor-trailer *18 truck driven by Henry

Daneford. Felicia Lee was killed on impact. Six weeks later,

on October 10, 2006, Felicia's mother, Helen Wilems, filed a

rule 202 petition in the 12th Judicial District Court in Madison

County to take oral depositions of several GST employees

and others to investigate a potential claim and for use in an

anticipated suit by Wilems. See TEX.R. CIV. P. 202. The

trial court granted the request and ordered the depositions of

several GST employees, including Daneford.

One week later, on December 5, 2006, GST and Daneford

filed a lawsuit in the 14th Judicial District Court in Dallas

County against Thomas Lee; Wilems, individually and

as representative of her daughter's estate; two insurance

companies; and the salvage company with possession of the

Lees' vehicle. GST and Daneford alleged Thomas Lee, a

Dallas County resident, was negligent in the accident and

sought damages for injuries to Daneford and property damage

to the tractor-trailer rig. They also sought injunctive relief

against all the defendants to preserve the vehicle driven by

Thomas Lee.

Wilems then filed a “First Amended Petition” in Madison

County under the same cause number as the presuit discovery

petition, alleging a wrongful death claim against GST and
Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Daneford. Both sides filed pleas to abate or dismiss the

competing lawsuit in the respective county, arguing they were

the first to file suit. In her plea in Dallas County, Wilems

argued the filing of her wrongful death claim in Madison

County related back to the date of the filing of her rule 202

petition, making her suit the first filed. Ultimately, both trial

courts denied the pleas to abate and/or dismiss and, in their

orders, asserted dominant jurisdiction. This appeal addresses

the Dallas County order denying Wilems's plea in abatement.

[1] [2] We review the trial court's action in granting or

denying a plea in abatement using an abuse of discretion

standard. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248

(Tex.1988). The trial court abuses its discretion when it acts

in an unreasonable and arbitrary manner, or without reference

to any guiding rules or principles. See Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985).

[3] [4] As a rule, when cases involving the same subject

matter are brought in different courts, the court with the firstfiled case has dominant jurisdiction and should proceed, and

the other case should abate. Perry v. Del Rio, 66 S.W.3d

239, 252 (Tex.2001). The obvious reasons for abatement

are conservation of judicial resources, avoidance of delay,

and “comity, convenience, and the necessity for an orderly

procedure in the trial of contested issues,” or, in other words,

“to prevent races from court to court by vigilant counsel.”

Id. The first-filed rule also has several justifications, both

jurisprudential and pragmatic. The jurisprudential reason is

that once a matter is before a court of competent jurisdiction,

“its action must necessarily be exclusive” because it is

“impossible that two courts can, at the same time, possess the

power to make a final determination of the same controversy

between the same parties.” Id. A pragmatic justification for

the rule is efficiency in that proceedings earlier begun may be

expected to be earlier concluded. Id. A final justification is

fairness-in a race to the courthouse, the winner's suit should

have dominant jurisdiction. Id. 1

*19 [5] Rule 202 allows a person to petition the court

for an order authorizing the taking of an oral and written

deposition to either perpetuate the testimony for use in an

anticipated suit or to investigate a potential claim or suit.

TEX.R. CIV. P. 202.1. The proceeding is not a separate,

independent lawsuit, but is in aid of and incident to an

anticipated suit. Office Employees Int'l Union Local 277 v.

Southwestern Drug Corp., 391 S.W.2d 404, 406 (Tex.1965)

(interpreting predecessor rule); In re Clapp, 241 S.W.3d

913, 917 (Tex.App.-Dallas 2007, orig. proceeding); In re

Raja, 216 S.W.3d 404, 407 (Tex.App.-Eastland 2006, orig.

proceeding); Texacadian Energy, Inc. v. Lone Star Energy

Storage, Inc., 829 S.W.2d 369, 372 (Tex.App.-Corpus Christi

1992, writ denied).

[6] At the time GST and Daneford filed their lawsuit in

Dallas County on December 5, 2006, Wilems had not brought

any cause of action arising from the collision. Rather, she

had sought presuit discovery to investigate facts relating to

a potential claim. Consequently, the only issue before the

Madison County district court at that time was whether to

allow such discovery; it had not been asked to adjudicate any

claims arising from the collision.

Nevertheless, Wilems argues her amended pleading (filed

after the Dallas County suit) related back to the date of

the filing of the rule 202 petition. Relying on rules of

civil procedure 62 through 65, she argues that her amended

petition filed in the same court under the same cause number

superceded and supplanted her original rule 202 petition.

Then, relying on section 16.068 of the Texas Civil Practice

and Remedies Code, she argues that because the pleading was

amended, it related back to the date of the original filing on

October 10, 2006, rendering the Madison County suit the first

filed.

We do not disagree that an amended pleading supersedes

and supplants earlier pleadings. TEX.R. CIV. P. 65; Lee v.

Na, 198 S.W.3d 492, 494 (Tex.App.-Dallas 2006, no pet.).

And whether it is appropriate to allege a lawsuit for the first

time in an “amended petition” in the same cause number as a

rule 202 petition is not an issue we need to address. Even if

appropriate, we do not agree that the relation-back doctrine, as

embodied in section 16.068, can be read in this case to allow

the “amended pleading” to relate back to the filing date of the

rule 202 petition.

[7] The relation-back doctrine, statutorily defined in section

16.068, originated as an equitable remedy designed to

effectuate justice. Lovato v. Austin Nursing Ctr., Inc., 113

S.W.3d 45, 55 (Tex.App.-Austin 2003), aff'd, 171 S.W.3d 845

(Tex.2005). It is designed to “protect litigants from loss of

their claims by a plea of limitations in cases where that would

otherwise occur and therefore should be liberally construed.”

Id. Section 16.068 provides:

If a filed pleading relates to a cause of

action, cross action, counterclaim, or

defense that is not subject to a plea of

limitation when the pleading is filed, a
Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)

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subsequent amendment or supplement

to the pleading that changes the facts

or grounds of liability or defense is

not subject to a plea of limitation

unless the amendment or supplement

is wholly based on a new, distinct, or

different transaction or occurrence.

TEX. CIV. PRAC. & REM.CODE ANN. § 16.068 (Vernon

2008) (emphasis added).

In urging we apply section 16.068 to the circumstances in

this case, Wilems asserts the purpose of rule 202 “allows a

party to locate and preserve evidence before a claim is filed,

while limitations requires that it be filed soon enough to allow

the opposing party to do so while it is still available.” *20

She then argues that since both the statute and rule “deal with

the passage of time and the preservation of evidence,” the

relation-back doctrine “should not apply in one but not the

other.”

[8] [9] [10] Even if we liberally construe a statute to

achieve its purposes, we may not enlarge or alter the plain

meaning of its language. Methodist Hosps. of Dallas v. Mid–

Century Ins. Co. of Tex., 259 S.W.3d 358, 360 (Tex.App.-

Dallas 2008, no pet.). In construing a statute, our objective

is to determine and give effect to the Legislature's intent.

Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008). We look

first to the statute's language to determine that intent, as we

consider it a “fair assumption that the Legislature tries to say

what it means, and therefore the words it chooses should be

the surest guide to legislative intent.” Id. (quoting Fitzgerald

v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866

(Tex.1999)). If the statute's language is unambiguous, its

plain meaning will prevail. Id.

The plain language of section 16.068 provides that an

amended pleading “is not subject to a plea of limitation

unless the amendment or supplement is wholly based on a

new, distinct, or different transaction or occurrence.” TEX.

CIV. PRAC. & REM.CODE ANN. § 16.068. Thus, even

if we accept the argument that the rule and statute share

similar purposes, the plain language of the statute restricts

its operation to negating a “plea of limitation” under the

circumstances described in the section. Wilems does not

claim that she stands to lose her cause of action on limitations

grounds; rather, her complaint involves a question of where

the lawsuit should be tried. Consequently, section 16.068

does not apply under the circumstances of this case.

We conclude the lawsuit filed in Dallas County on December

5, 2006 was the first filed. Accordingly, the trial court did not

abuse its discretion in refusing to abate the case.

We affirm the trial court's order denying abatement.

All Citations

334 S.W.3d 16

Footnotes

1 There are exceptions to the dominant jurisdiction rule; however, in her brief, Wilems expressly states that none of the

exceptions applies in this appeal.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

Court of Appeals of Texas,

Austin.

William L. LINDIG and Peggy L. Lindig, Appellants

v.

CITY OF JOHNSON CITY, Appellee.

No. 03–11–00660–CV. | Nov. 14, 2012.

From the District Court of Blanco County, 424th Judicial

District, No. CV06530; Daniel H. Mills, Judge Presiding.

Attorneys and Law Firms

William M. McKamie, Adolfo Ruiz, McKamie Krueger,

L.L.P., San Antonio, TX, Bradford E. Bulllock, Russell &

Rodriguez, L.L.P., Georgetown, TX, for Appellee.

Zachary P. Hudler, Zachary P. Hudler, P.C., Johnson City,

TX, Mr. Samuel V. Houston, III, The Ford Firm, P.C., San

Antonio, TX, for Appellants.

Before Chief Justice JONES, Justices ROSE and

GOODWIN.

MEMORANDUM OPINION

J. WOODFIN JONES, Chief Justice.

*1 The City of Johnson City sued William L. Lindig and

Peggy L. Lindig, seeking an injunction and civil penalties

after the Lindigs continued to remodel their residential

property in Blanco County after the City issued a “stop work”

order based on the Lindigs' failure to obtain a building permit.

The Lindigs counterclaimed, asserting that the buildingpermit-fee ordinance was unconstitutionally vague on its

face or as applied to them. 1 On cross-motions for summary

judgment, the trial court issued a permanent injunction in the

City's favor and awarded the City $42,000 in civil penalties,

$95,077 in attorneys' fees, up to $40,000 in conditional

attorneys' fees for an appeal, and pre- and post-judgment

interest. The trial court also ordered the Lindigs to either

comply with city and state ordinances by obtaining necessary

permits or demolish the structure. In four issues on appeal,

the Lindigs challenge the constitutionality of the buildingpermit-fee ordinance on vagueness grounds and, in addition,

complain of the related awards of civil penalties, attorneys'

fees, and prejudgment interest. We will reverse the trial

court's judgment and render in part and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND 2

This dispute arose nearly five years ago when the Lindigs

refused to pay a $1,000 building-permit fee for “residential

remodeling” construction work on a home they purchased

for their daughter's use. In December 2007 the Lindigs

applied for a building permit for a residential remodeling

project. William Lindig averred that, when he obtained the

permit application from City Hall, he was told by the City

Secretary that he could begin the project without paying a fee.

The following month, however, Peter McKinney, the City's

Building Official, acted on the Lindigs' permit application

based on concerns about compliance with the City's building

code and the types of construction materials being used on

the project. Upon inspecting the project, McKinney informed

William Lindig that there would be a $1,000 permit fee

for the project. 3 McKinney stated that the amount of the

fee was based on his determination that the remodeling

project should be treated as “new construction” because

it involved “substantial work,” including some structural

framing, rewiring, and new plumbing, and would require

all but two of the inspections normally required for new

construction. Accordingly, McKinney assessed a permit fee

of $1,000 for new construction in accordance with section 06–

015 of the City's Code of Ordinances. The Lindigs refused to

pay the fee, whereupon the City issued a stop-work order.

When construction continued despite the stop-work order,

the City filed suit in Blanco County district court seeking

injunctive relief against further construction, alleging that the

Lindigs had refused to obey the City's order to cease all work

until a building permit was issued. SeeTex. Loc. Gov't Code

Ann. §§ 54.012(1) (municipality may bring civil action for

enforcement of ordinance relating to materials or methods

used to construct buildings), .016 (West 2008) (injunctive

relief available upon showing of substantial danger of injury

or adverse health impact to any person or to property of

any person other than defendant). The City also sought

civil penalties for the Lindigs' continued noncompliance with

section 06–015 after receiving notice of noncompliance in the
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stop-work order. See id. § 54.017 (West 2008) (authorizing

municipality to recover civil penalties if defendant violates

ordinance after being notified of ordinance's provisions). In

addition to their counterclaims, the Lindigs asserted a number

of defenses to enforcement of the ordinance. The trial court

denied the Lindigs' motion for partial summary judgment as

to the enforceability of the ordinance and granted the City's

traditional motions for summary judgment on the Lindigs'

claims and the City's statutory claims for injunctive relief,

civil penalties, and attorneys' fees. The only claims at issue

on appeal, however, are (1) the City's actions for injunctive

relief and civil penalties, and (2) the Lindigs' counterclaim

under the Texas Uniform Declaratory Judgments Act for

a declaration that the City's building-permit-fee ordinance

is unconstitutional—both on its face and as applied to the

Lindigs' construction project—because it is impermissibly

vague and thus imbues the Building Official with unfettered

discretion to determine the fees to charge for residentialremodeling construction.

*2 On appeal, the Lindigs assert that (1) the trial court

erroneously concluded that the City's building-permit-fee

ordinance is enforceable, (2) the trial court erroneously

assessed civil penalties and attorneys' fees based on an

unenforceable fee ordinance, (3) even if the fee ordinance is

enforceable, fact issues precluded summary judgment on the

City's claim for civil penalties and attorneys' fees, and (4) the

City is not entitled to prejudgment interest either by statute or

as equitable relief.

DISCUSSION

The principal issue on appeal is whether the buildingpermit-fee ordinance, section 06–015 of the City's Code of

Ordinances, is unconstitutionally vague on its face or as

applied to the Lindigs in this case. In section 06–015, the City

adopted the following fee schedule for building permits:

A. Residential Plan Review and Inspections

Includes plan review and inspections for residential

structures as detailed in the Johnson City Residential

Code.

Up to and including 5000 square feet total area

Plan Review and inspections—$1000.000 per house

5000 square feet and greater in total area

$1000.00 per house plus $0.12 per square foot beyond

5000 square feet

Plan Review re-submittals

$100.00 per re-submittal

Re–Inspections

$50.00 each for 2 or more re-inspections

B. Commercial Plan Review and Inspections

1. Building Permit Fees for New Construction

a. $250 + $0.12 cents a square foot

b. Fees for tenant finish out and shell buildings will be 75%

of the above fees

2. Plumbing, Mechanical and Electrical fees for New

Construction (each)

a. $80.00 + $.05 cents a square foot

b. Fees for tenant finish out and shell buildings will be 75%

of the above fees

3. Fees for Additions, Alterations, Repairs, Demolition,

Screening Walls, Retaining Walls and accessory

Buildings.

The following fees shall be charged for small

construction jobs involving additions, alterations and

repairs. Larger projects that involve substantial work

shall be charged as new construction at the discretion of

the Building Official.

Value of Construction Permit Fee

$0.00 to $2,500.00 $85.00

$2,500.01 to $5,000.00 $100.00
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$5,000.01 to $10,000.00 $145.00

$10,000.01 to $25,000.00 $210.00

$25,000.01 to $50,000.00 $400.00

$50,000.01 to $100,000.00 $600.00

$100,000.01 or more $600.00 for the first

$100,000.00 + $75 for each

$25,000.00 or fraction thereof.4

By its plain terms, section (A) of the fee ordinance

applies to residential construction, and section (B) applies

to commercial construction. Section (A) appears to provide

a flat fee of $1,000 for construction involving homes under

5,000 square feet. Section (B), on the other hand, provides

a sliding fee scale for new commercial construction and

commercial construction involving additions, alterations,

repairs, and other non-comprehensive building activities.

Subsection (B)(3) includes both a cost-based permit-fee

structure and a grant of authority to the Building Official to

treat a commercial building project as “new construction”

if the Building Official determines, in his “discretion,” that

the project “involves substantial work.” The City has also

adopted a series of international building codes, including the

“International Residential Code for One- and Two–Family

Dwellings” (the “IRC”). Section (A) of the fee ordinance

refers to the IRC regarding the scope of its application. The

IRC in turn vests the Building Official with “the authority

to render interpretations of [the IRC] and to adopt policies

and procedures in order to clarify the application of its

provisions.”

*3 McKinney (the City's Building Official) testified that,

pursuant to the authority granted to him under the IRC,

he construed section (A) of section 06–015 to apply only

to residential new construction but used section (B)(3) as

a guideline for determining fees for both residential and

commercial remodeling projects. McKinney further testified

that he exercises discretion to deem some residential remodels

to be new construction if they “involve substantial work,”

which results in the application of the fee outlined in section

(A) rather than use of the (B)(3) cost-based permit fee he

would otherwise use as a guideline for setting the fee for a

commercial project. It is disputed whether McKinney derives

his authority to do so from subsection (B)(3) or from his

general authority under the IRC, but it is undisputed that he

engaged in the process set forth in subsection (B)(3) to set

the permit fee in this case. The Lindigs contend that section

06–015 is unconstitutionally vague with regard to the fee

structure applicable to residential remodeling jobs—either on

its face or as it has been applied to them—because (1) the fee

ordinance lacks a fee structure clearly applicable to residential

remodeling projects, under either section (A) or section (B),

and (2) there is neither a definition of “substantial work”

nor any guidelines governing the application of that term or

circumscribing the Building Official's discretion to deem a

remodeling project to be new construction for purposes of

establishing the applicable permit fee.

Ordinances are subject to the same constitutional

requirements and construction canons as statutes. Mills v.

Brown, 159 Tex. 110, 316 S.W.2d 720, 723 (Tex.1958) (“The

same rules apply to the construction of municipal ordinances

as to the construction of statutes.”); cf. Texas Liquor Control

Bd. v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex.1970) (“A

rule or order promulgated by an administrative agency acting

within its delegated authority should be considered under the

same principles as if it were the act of the Legislature.”).

To determine whether a statute is unconstitutionally vague,

we begin by presuming that the statute is constitutional.

Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003). The

party challenging the statute's constitutionality has the burden

of showing that the statute fails to meet constitutional

requirements. Id. A statute or ordinance is unconstitutionally

vague if the persons regulated by it are exposed to risk

or detriment without fair warning or if it invites arbitrary

and discriminatory enforcement by its lack of guidance for

those charged with its enforcement. See Comm'n for Lawyer

Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998); Attic

Club, 457 S.W.2d at 45; City of Webster v. Signad, Inc.,

682 S.W.2d 644, 646 (Tex.App.-Houston [1st Dist.] 1984,

writ ref'd n.r.e.). Implicit in this constitutional safeguard is

the idea that laws must have an understandable meaning and

must set legal standards that are capable of application. City
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of Mesquite v. Aladdin's Castle, Inc., 559 S.W.2d 92, 94

(Tex.Civ.App.-Dallas 1977), writ ref'd n.r.e.,570 S.W.2d 377

(Tex.1978) (per curiam).“It is established that a law fails

to meet the standards of due process if it is so vague and

standardless as to leave a governing body free to decide,

without any legally fixed guidelines, what is prohibited in

each particular case.”Id. Due process is violated and a law is

invalid if persons of common intelligence are compelled to

guess at a law's meaning and applicability. Attic Club, 457

S.W.2d at 45; Pennington v. Singleton, 606 S.W.2d 682, 689

(Tex.1980); Signad, 682 S.W.2d at 646.

*4 When applying the fair-notice test, courts allow statutes

imposing economic regulation greater leeway than they allow

penal statutes. See Pennington, 606 S.W.2d at 689; Signad,

682 S.W.2d at 646. “A law is not unconstitutionally vague

merely because it does not define words or phrases.”Vista

Healthcare, Inc. v. Texas Mut. Ins. Co., 324 S.W.3d 264,

273 (Tex.App.-Austin 2010, pet. denied). Only a reasonable

degree of certainty is required, id.(citing Pennington, 606

S.W.2d at 689), and the reasonable-certainty requirement

“ ‘does not preclude the use of ordinary terms to express

ideas which find adequate interpretation in common usage

and understanding.’”Signad, 682 S.W.2d at 646–47 (quoting

Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 76

L.Ed. 1167 (1932)). Moreover, “the mere fact that the parties

disagree as to [an ordinance's] meaning does not mean we

must necessarily guess at its meaning.”Mills v. Fletcher, 229

S.W.3d 765, 770 (Tex.App.-San Antonio 2007, no pet.); see

Vista Healthcare, 324 S.W.3d at 273.

In the present case, there are no guidelines governing the

application of the “substantial work” standard embodied

in section 06–015 as construed and applied by the City's

Building Official. Nor is there any evidence that this phrase

has a peculiar or technical meaning as applied to some trade

or science. Rather, the Building Official testified that he

alone makes the determination based on his impressions and

experience regarding the scope of the work. Significantly, the

City does use objective standards in similar circumstances

in two other parts of its building regulations. Pursuant to

section R105.3.1.1 of the IRC, the determination of whether

existing buildings in areas prone to flooding are “substantially

improved or substantially damaged” is made according to the

following standard:

If the building official finds that the

value of proposed work equals or

exceeds 50 percent of the market

value of the building or structure

before the damage has occurred

or the improvement is started, the

finding shall be provided to the board

of appeals for a determination of

substantial improvement or substantial

damage.

Once the Building Official has made the determination

required by section R105.3.1.1, the board of appeals

determines whether the value of the proposed work

constitutes “substantial improvement” by applying the

following guideline:

[A]ny repair, reconstruction,

rehabilitation, addition, or

improvement of a building or

structure, the cost of which equals or

exceeds 50 percent of the market value

of the building or structure before the

improvement or repair is started. If

the building or structure has sustained

substantial damage, all repairs are

considered substantial improvement

regardless of the actual repair work

performed.

IRC § R112.2.1. The IRC then lists several exclusions from

the term that provide further guidance in its application.

Id. In comparison to the “substantial work” standard the

City's Building Official employed in the Lindigs' case, these

provisions provide objective guidelines for applying the

term “substantial” to certain residential property requiring

construction.

*5 As construed and applied to the Lindigs, the ordinance

at issue in this case employs language similar to that found

to be constitutionally infirm in City of Webster v. Signad,

Inc. There, the court considered a vagueness challenge to a

city sign ordinance that provided that any outdoor advertising

signs could not be rebuilt if there was damage to “any

substantial parts” of the sign. 682 S.W.2d at 645–46. The

court held that the quoted phrase was fatally vague and

violated due process because it did not provide operators

of outdoor advertising signs with fair and adequate notice

as to what sign repairs were permitted or prohibited. Id. at

647–48.The ordinance provided no definition or guidelines

for measuring “substantial parts” of the sign, leaving the

court to conclude that persons of common intelligence

would be left to guess the ordinance's meaning. Id. at

648.While the court noted that the words “substantial parts”
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are common, they are not self-explanatory. Id. at 647.As

the court explained, “Parts of a sign may be simultaneously

‘substantial’ and ‘insubstantial’ depending on whether the

test used is economic, physical, or functional.”Id. at 648.The

court illustrated the uncertainty and ambiguity that arose from

application of the “substantial parts” standard as follows:

If an economic test is used, how expensive must a repair

be to rise to the level of “substantial”? If a sign is

valued at $30,000, is $1,000 in damage “substantial”? If

a physical test is considered, is damage to one pole of

a five-pole sign “substantial”? Should “substantial parts”

of the sign include other than structural parts? Section

B(15) of the Ordinance defines a “sign structure” as

“the support, uprights, bracing, and framework of any

outdoor advertising sign”; sign panels, readily movable and

changeable, are not defined as a part of the sign structure.

Is damage to one or more sign panels therefore to be

considered as damage to a “substantial” part of the sign?

A sign with broken or inoperative lights is not functional

during nighttime hours, although the cost of repairs is

small in comparison with the sign's total cost. From a

functional perspective, the lights are “substantial parts”

of the sign, while from a cost perspective they are not.

The same ambiguity arises in numerous similar practical

considerations.... Operators of outdoor advertising signs

receive no fair and adequate notice from section H(2) of

the Ordinance as to what sign repairs are permitted or

prohibited.

Id.

As in Signad, people of common intelligence do not

have fair notice as to what permit fee is required under

section 06–015 for a residential remodel project. Just as

important, the seemingly boundless discretion vested in the

Building Official to interpret and apply the term invites

arbitrary and discriminatory application. Cf. Coffee City v.

Thompson, 535 S.W.2d 758, 763 (Tex.Civ.App.-Tyler 1976,

writ ref'd n.r.e.) (“An ordinance leaving the question of

issuing or denying building permits to the arbitrary discretion

or determination of the city secretary without any rule

or standard to follow is invalid.”). The City argues that

the Building Official's discretion is not unfettered because

citizens have a right to appeal his determinations to the

City's board of adjustment. The City does not explain

how a standardless determination by the Building Official

survives a vagueness challenge merely because an appeal

body can review that determination. We conclude that the

absence of reasonable guidelines or standards renders the

term “substantial work” unconstitutionally vague as applied

to the Lindigs regardless of who is making that determination.

See Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554

S.W.2d 924, 928 (Tex.1977) (“A vague law impermissibly

delegates basic policy matters to policemen, judges, and

juries for resolution on ad hoc and subjective basis, with

the attended [sic] dangers of arbitrary and discriminatory

applications.”(quoting Grayned v. City of Rockford, 408

U.S. 104, 109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).

Although courts recognize that myriad factual situations may

arise, such that statutes can and should be worded with

flexibility, the public must be provided fair notice of what

is required or prohibited. Vista Healthcare, 324 S.W.3d at

273. The “substantial work” standard applied in this case

does not do so and is therefore constitutionally infirm. 5 We

therefore sustain the Lindigs' first issue and conclude that

section 06–015 is unconstitutionally vague to the extent it

imposes a new-construction building-permit fee based on the

Building Official's determination that residential remodeling

construction “involves substantial work” and thus qualifies as

new construction.

*6 Having sustained the Lindigs' first issue, we also sustain

their second, third, and fourth issues relating to the damages

awarded to the City based on the trial court's erroneous

enforcement of the $1,000 permit fee. With regard to those

issues, it appears that there remain genuine issues of material

fact regarding whether the Lindigs were issued a permit

number; whether the Lindigs violated the building-permitfee ordinance or the IRC by failing to complete the permit

application and obtain a permit, failing to comply with the

stop-work order that referenced the absence of a permit,

and failing to comply with the IRC both with regard to the

application process and the materials used in construction;

and whether, when, and how the Lindigs were informed about

the stop-work order. These issues are distinct from whether

the Lindigs were required to pay a fee to obtain a permit. 6

CONCLUSION

We hold that the building-permit-fee ordinance (section

06–015 of the City's Code of Ordinances) is void for

vagueness as construed and applied to the Lindigs because

the determination of what residential remodeling projects

involve “substantial work,” and thus may be treated as

new construction under the permitting ordinance, lacks

standards that are capable of application with a reasonable

degree of certainty. We therefore reverse the trial court's
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summary judgment in the City's favor and render judgment

in the Lindigs' favor on their declaratory judgment claim.

Specifically, we render judgment that, as applied to the

Lindigs, section 06–015 is unconstitutionally vague to the

extent it imposes a new-construction-permit fee based on the

Building Official's determination that residential remodeling

construction “involves substantial work” and thus qualifies as

new construction. However, fact issues remain as to whether

the Lindigs violated the building-permit-fee ordinance by

failing to complete the permit application, failing to obtain

a permit, and failing to comply with the stop-work order.

Accordingly, we reverse the portion of the trial court's

summary judgment awarding the City civil penalties and

attorneys' fees and remand this cause to the trial court for

further proceedings.

All Citations

Not Reported in S.W.3d, 2012 WL 5834855

Footnotes

1 The Lindigs' countersuit also included claims against the City's board of adjustment and various City officials, as well

as additional claims against the City alleging estoppel, civil conspiracy, and an unconstitutional taking. Those claims,

however, were disposed of in the trial court and are not at issue on appeal.

2 In a previous opinion of this Court, we considered the Lindigs' interlocutory appeal from a trial-court order dismissing

the Lindigs' claims for want of subject-matter jurisdiction. We affirmed the trial court's judgment with regard to claims

based on alleged injuries to the public at large but otherwise reversed the judgment and remanded the cause for further

proceedings. See Lindig v. City of Johnson City, No. 03–08–00574–CV, 2009 WL 3400982, at *6 (Tex.App.-Austin Oct.21,

2009, no pet.)(mem.op.). The extensive procedural history leading up to the summary-judgment proceedings at issue in

this appeal were fully set forth in our previous opinion and need not be repeated in their entirety. See generally id. at

*1–12.In this opinion, we recount the factual and procedural history of the case only to the extent it is pertinent to the

issues in this appeal.

3 The parties do not dispute that the City required the Lindigs to pay $1,000 in fees for the remodeling project, but the

evidence is inconsistent regarding whether the permit fee itself was $1,000 or something less. Although Peter McKinney

testified that the Lindigs were required to pay the $1,000 permit fee applicable to new construction projects, David

Dockery, the City Manager and City Administrator, testified before the board of adjustment that the $1,000 fee was actually

composed of an $850 permit fee (calculated by taking the $1,000 permit fee for new construction and subtracting $150

for two inspections that would not be required for the remodeling project) and adding a $150 “res check fee.” Because

this factual discrepancy does not alter our analysis, we characterize the fee as a $1,000 permit fee consistent with the

parties' briefing in this case.

4 Section C of the fee ordinance includes the following “miscellaneous fees,” which are not at issue in this appeal:

Any Activity listed below shall be charged the following fee associated with the activity.

Certificate of Occupancy (only charged when no permit

issued for new construction)

$105.00

Temporary Certificate of Occupancy (charged for all

temporary certificates of occupancy)

$105.00

Fence Permit $50.00

In-ground swimming pool $300.00

Spa or above-ground pool $105.00

Lawn Sprinkler $75.00

Construction Trailer $95.00

Drive Approach $75.00 per approach

Sidewalk $75.00 per lot

Additional Plan Review $75.00 per hour–1 hr min.

Hourly Rate $105.00 per hour

5 The City's reliance on Vista Healthcare, Inc. v. Texas Mutual Insurance Co., 324 S.W.3d 264 (Tex.App.-Austin 2010,

pet. denied), is misplaced. That case is distinguishable from this case in many ways, but to the extent it affirmed the

constitutionality of the guidelines applicable to reimbursement rates for medical expenditures, it also reaffirmed the settled

principle that an ordinance must provide fair notice of the applicable standards. Here, there are none.
Lindig v. City of Johnson City, Not Reported in S.W.3d (2012)

2012 WL 5834855

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

6 Several provisions of the IRC are germane to the issues on remand. Among those provisions are section R105.1 of

the IRC, which appears to require that a permit be obtained regardless of whether there is a fee for the permit. Section

R105.1 provides:

Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the

occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical,

gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work

to be done, shall first make application to the building official and obtain the required permit.

Section R105.3 of the IRC governs applications for a permit and instructs:

To obtain a permit, the applicant shall first file an application therefor in writing on a form furnished by the department

of building safety for that purpose. Such application shall:

1. Identify and describe the work to be covered by the permit for which application is made.

2. Describe the land on which the proposed work is to be done by legal description, street address or similar description

that will readily identify and definitely locate the proposed building or work.

3. Indicate the use and occupancy for which the proposed work is intended.

4. Be accompanied by construction documents and other information as required in Section 106.1.

5. State the valuation of the proposed work.

6. Be signed by the applicant, or the applicant's authorized agent.

7. Give such other data and information as required by the building official.

Upon application for a permit and pursuant to section R105.3.1 of the IRC, the City's Building Official is required to

review a permit application within a reasonable time, inform the applicant in writing if the application or construction

documents do not conform to the requirements of pertinent laws, and state the manner in which compliance is lacking.

The record is not developed as to the extent to which the Lindigs and the City's Building Official complied with these

provisions.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)

50 Tex. Sup. Ct. J. 80

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206 S.W.3d 572

Supreme Court of Texas.

MACK TRUCKS, INC., Petitioner,

v.

Elizabeth TAMEZ et. al., Respondent.

No. 03–0526. | Argued Oct. 20,

2004. | Decided Oct. 27, 2006.

| Rehearing Denied Dec. 22, 2006.

Synopsis

Background: Survivors of petroleum tanker driver who died

when his truck burst into flames brought action against the

tanker manufacturer, asserting claims for negligence, strict

liability, breach of implied warranty, and misrepresentation.

The 105th District Court, Nueces County, J. Manuel

Banales, J., granted summary judgment for the defendant

manufacturer. The survivors appealed. The Corpus Christi–

Edinburg Court of Appeals, Thirteenth District, 100 S.W.3d

549, reversed and remanded. Tanker manufacturer appealed.

Holdings: The Supreme Court, Phil Johnson, J., held that:

[1] the Court of Appeals could not consider expert's causation

testimony from bill of exceptions, and

[2] testimony on causation from post-collision fuel-fed fire

expert was not admissible.

Reversed and rendered.

Attorneys and Law Firms

*575 Sean E. Breen, Randy Howry, Herman Howry &

Breen, L.L.P., Austin, Robert Lee Galloway, Kellye Ruth

Koehn, Thompson & Knight LLP, Houston, for petitioner.

John Blaise Gsanger, William R. Edwards, William R.

Edwards III, The Edwards Law Firm, L.L.P., Corpus Christi,

John Gonzales, John Gonzales & Associates, San Antonio,

David O. Gonzalez, Law Offices of Baldemar Gutierrez,

Alice, Glenn M. Boudreaux, Maryellen Hester, Boudreaux

Leonard & Hammond, P.C., Houston, for for respondent.

Opinion

Justice JOHNSON delivered the opinion of the Court.

In this truck accident case the trial court excluded expert

testimony as to what caused a post-accident fire that burned

the truck and the driver. After excluding the expert testimony

because it was not reliable, the trial court granted summary

judgment. The court of appeals reversed. We hold that the

trial court did not err, reverse the court of appeals' judgment,

and render judgment that the plaintiffs take nothing.

I. Background

On October 19, 1996, Abram Tamez was operating a Mack

Truck tractor hauling a trailer of crude oil. Tamez was

rounding a curve in the road when the tractor and trailer

overturned. A fire erupted and burned the trailer, its cargo,

and the tractor. Tamez was able to climb out of the tractor,

but he was badly burned and died as a result of his injuries.

As a result of Tamez's death, suit was filed 1 against the

tractor's manufacturer, Mack Trucks, Inc., and others. 2

The Tamezes alleged that Mack defectively designed,

manufactured and marketed the tractor. They claimed that

Mack was liable for negligence, gross negligence, strict

products liability, breach of warranty, and misrepresentation.

All five theories were based on the same complaint: diesel

fuel from the truck's fuel system originated the fire that burned

Abram Tamez. Specifically, the Tamezes alleged that the

tractor had design and manufacturing defects because (1)

the fuel system was unreasonably prone to fail and release

diesel fuel in an environment conducive to ignition and fire;

and (2) the tractor had ignition sources *576 such as hot

manifolds and electric batteries in areas likely to contain

released flammable fluids. The Tamezes also alleged that

Mack failed to provide warnings about the defects.

In connection with its claims against Mack, the Tamezes

identified Ronald Elwell as an expert on post-collision, fuelfed fires. Mack moved to exclude his testimony as unreliable

and moved for summary judgment. Mack asserted multiple

grounds for seeking summary judgment. Some grounds for

its motion were directed at particular plaintiffs, while some

grounds were directed at all the Tamezes. One part of Mack's

motion directed at all the Tamezes was a Rule 166a(i) motion

urging that the Tamezes could present no evidence that any
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alleged defects caused the fire. The Tamezes responded to the

no-evidence part of Mack's motion, in part, by filing Elwell's

deposition and his expert report. They also later submitted

Elwell's testimony from a bill of exceptions.

Pretrial matters, including a Robinson 3 hearing pursuant to

Mack's motion to exclude Elwell's testimony, were scheduled

and heard. During the Robinson hearing Elwell testified. He

expressed the opinion that the fire was started by the tractor's

battery, which was located too near the fuel tanks, igniting the

tractor's diesel fuel, which in turn ignited the trailer's cargo

of crude oil.

The trial court granted Mack's motion to exclude Elwell's

testimony as to causation. The Tamezes later moved the

trial court to reconsider its decision. The court denied the

motion but allowed the Tamezes to have Elwell testify again

to create a bill of exceptions. 4 The court signed an order

excluding the causation portion of Elwell's testimony from

being considered as evidence at any trial or hearing because

it was not sufficiently reliable. Mack's motion for summary

judgment was granted.

The court of appeals reversed the summary judgment,

concluding that the trial court abused its discretion

in excluding Elwell's causation testimony, 5 and also

concluding that Elwell's testimony provided some evidence

of causation. The court of appeals' opinion indicates that in

reaching its decision it considered Elwell's testimony from

both the Robinson hearing and the bill of exceptions. See 100

S.W.3d 549, 556, 559, 561.

Mack urges that the trial court correctly excluded Elwell's

testimony on causation, did not abuse its discretion in

refusing to reconsider that ruling, and properly granted

summary judgment because the Tamezes presented no

evidence of causation. Mack asserts, among other matters,

that the court of appeals erred by (1) considering Elwell's

causation testimony from both the Robinson hearing and

the bill of exceptions; (2) reversing the trial court's ruling

as to admissibility of Elwell's causation testimony; and (3)

reversing the summary judgment.

We conclude that the trial court did not abuse its discretion

in excluding Elwell's testimony on causation and that the

court *577 of appeals erred in considering testimony from

the bill of exceptions in evaluating the trial court's exclusion

of Elwell's causation testimony. We further conclude that

the Tamezes presented no summary judgment evidence of

causation and summary judgment was properly granted.

II. Elwell's Bill of Exceptions Testimony

[1] Mack argues that the court of appeals erred by

considering testimony admitted only for the bill when it

reviewed the trial court's exclusion of Elwell's causation

testimony. The Tamezes claim that whether Elwell's bill of

exceptions testimony is considered is not relevant because

his bill testimony added nothing to his Robinson hearing

testimony. Further, in their brief and at oral argument the

Tamezes disclaim having urged in the court of appeals that

the trial court erred in (1) holding a Robinson hearing, (2) the

manner in which the hearing was conducted, (3) the timing of

the hearing, or (4) denying their motion for reconsideration.

Our review of their briefs in the court of appeals confirms the

Tamezes' position. They do not contend here either that the

bill of exceptions testimony was improperly excluded or that

the trial court erred in denying their motion to reconsider.

The purpose of a bill of exceptions is to allow a party to make

a record for appellate review of matters that do not otherwise

appear in the record, such as evidence that was excluded.

TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); see also

In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The

court of appeals' opinion indicates that it considered Elwell's

bill of exceptions testimony in evaluating the admissibility

of his opinions even though the trial court did not. See 100

S.W.3d at 556, 559. As one example, the court of appeals

referenced Elwell's opinion that at least one of the tractor's

side fuel tanks became displaced during the rollover and

separated the balance line connecting the two fuel tanks. Id.

at 557. The court pointed to Elwell's testimony interpreting

photographic evidence of steel straps which held the tanks as

support for his opinion. Id. The referenced testimony as to

Elwell's opinion and interpretation of photographic evidence

was given as part of his bill of exceptions testimony, but he

did not give similar testimony during the Robinson hearing.

[2] Except for fundamental error, appellate courts are not

authorized to consider issues not properly raised by the

parties. See In the Interest of B.L.D., 113 S.W.3d 340,

350–52 (Tex.2003). We have described fundamental error

as those instances in which error directly and adversely

affects the interest of the public generally, as that interest

is declared by the statutes or Constitution of our State, or

instances in which the record affirmatively and conclusively
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shows that the court rendering the judgment was without

jurisdiction of the subject matter. See McCauley v. Consol.

Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957).

The court of appeals did not classify the trial court's refusal

to allow the Tamezes to present further evidence and to then

reconsider its ruling to exclude Elwell's causation testimony

as fundamental error, and neither do we. The court of appeals

erred in considering Elwell's causation testimony from the

bill of exceptions without having first determined, pursuant

to properly assigned error, that the trial court erred in refusing

to admit the testimony and reconsider its decision to exclude

Elwell's causation opinions. Under the record and issues

presented to us, we may not consider Elwell's testimony

from the bill of exceptions in determining whether the trial

court erred in excluding Elwell's causation *578 testimony.

See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 n. 1

(Tex.2004).

III. Reliability of Elwell's Testimony

A. Standard of Review

[3] [4] [5] An expert witness may testify regarding

“scientific, technical, or other specialized” matters if the

expert is qualified and if the expert's opinion is relevant and

based on a reliable foundation. TEX. R. EVID. 702; Helena

Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001);

Robinson, 923 S.W.2d at 556. In determining whether

expert testimony is reliable, a court should examine “the

principles, research, and methodology underlying an expert's

conclusions.” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,

629 (Tex.2002). When the testimony involves scientific

knowledge, the expert's conclusions must be “grounded

‘in the methods and procedures of science.’ ” Robinson,

923 S.W.2d at 557 (quoting Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993)). Otherwise, the testimony is “no more

than ‘subjective belief or unsupported speculation.’ ” Id.

(quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). We

have identified several non-exclusive factors that trial courts

should consider when determining the reliability of expert

testimony involving scientific knowledge. 6 We recognize

that these factors may not apply when testimony is not

scientific, but, rather, involves technical or other specialized

knowledge. Gammill v. Jack Williams Chevrolet, 972 S.W.2d

713, 726 (Tex.1998). Even then, however, there must be some

basis for the opinion to show its reliability. Id. An expert's

bare opinion will not suffice. Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex.1997). And, there cannot

be “ ‘too great an analytical gap between the data and the

opinion proffered.’ ” Gammill, 972 S.W.2d at 726 (quoting

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512,

139 L.Ed.2d 508 (1997)).

[6] [7] [8] [9] A trial court has broad discretion in

determining whether expert testimony is admissible. Zwahr,

88 S.W.3d at 629. Its ruling will be reversed only if that

discretion is abused. K–Mart Corp. v. Honeycutt, 24 S.W.3d

357, 360 (Tex.2000). Because the party sponsoring the expert

bears the burden of showing that the expert's testimony is

admissible, the burden of presenting understandable evidence

that will persuade the trial court is on the presenting party. See

Robinson, 923 S.W.2d at 557. When an expert's “processes”

or “methodologies” are obscured or concealed by testimony

that is excessively internally contradictory, non-responsive or

evasive, a trial court will not have abused its discretion in

determining that the expert's testimony is not admissible. See

GMC v. Iracheta, 161 S.W.3d 462, 470–72 (Tex.2005).

B. Reliability Factors

The court of appeals noted that Elwell's testimony largely

applied his knowledge, training, and experience to the

underlying data and that his methodology was not easily

tested by objective criteria such as identifiable scientific

formulas. The court of appeals concluded that under such

circumstances *579 the reliability of Elwell's opinion is not

properly measured by a Robinson-factor analysis, but that the

“analytical gap” test should be applied. 100 S.W.3d at 555–

56.

Mack argues that the court of appeals' analysis is flawed.

Mack urges that Elwell's inability to demonstrate at least one

of the Robinson factors, coupled with his inability to eliminate

the crude oil tanker as the source of the fire, rendered Elwell's

testimony unreliable. The Tamezes, on the other hand, argue

that because Elwell's testimony was based on his training and

experience, and not science, application of the analytical gap

test, as opposed to use of Robinson factors, was appropriate.

They contend that Elwell's opinion was reliable because there

were no analytical gaps in his testimony. See Gammill, 972

S.W.2d at 726.

In Gammill we clarified that the list of non-exclusive factors

listed in Robinson may not be applicable when assessing
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)

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certain kinds of expert testimony. 972 S.W.2d at 720. We

held that Robinson factors did not apply to the mechanical

engineer expert under consideration in Gammill, even though

his claimed expertise was scientific in nature. Id. at 727. In so

holding, however, we did not mean to imply that a trial court

should never consider the Robinson factors when evaluating

the reliability of expert testimony that is based on knowledge,

training or experience, or that the factors can only be applied

when evaluating scientific expert testimony. We recognized

that the criteria for assessing reliability must vary depending

on the nature of the evidence. Id. at 726.

[10] The United States Supreme Court has noted that it

is not possible to “rule out, nor rule in, for all cases and

for all time the applicability of the factors mentioned in

Daubert.” Kumho Tire v. Carmichael, 526 U.S. 137, 150,

119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Nor can the Court

“now do so for subsets of cases categorized by category

of expert or by kind of evidence,” as “[t]oo much depends

upon the particular circumstances of the particular case at

issue.” Id. In Robinson we likewise explained that the factors

mentioned do not constitute an exclusive list and that the trial

court's gatekeeping inquiry will differ with each particular

case depending on the “[t]he factors a trial court will

find helpful in determining whether the underlying theories

and techniques ... are scientifically reliable.” Robinson, 923

S.W.2d at 557. Thus, a trial court should consider the factors

mentioned in Robinson when doing so will be helpful in

determining reliability of an expert's testimony, regardless of

whether the testimony is scientific in nature or experiencebased. See Kumho Tire, 526 U.S. at 139, 119 S.Ct. 1167;

Gammill, 972 S.W.2d at 726.

[11] In determining reliability, the trial court “should

undertake a rigorous examination of the facts on which the

expert relies, the method by which the expert draws an

opinion from those facts, and how the expert applies the facts

and methods to the case at hand.” See Amorgianos v. Amtrak,

303 F.3d 256, 267 (2d Cir.2002). A significant part of the

trial court's gatekeeper function is to evaluate the expert's

qualifications, listen to the testimony, view the evidence,

and determine which factors and evaluation methodology

are most appropriate to apply. For example, in the present

case the trial court would have been within its discretion

to measure the reliability of Elwell's testimony, at least in

part, by considering (1) the extent to which Elwell's theory

had been or could be tested; (2) the extent to which his

methodology relied upon his subjective interpretation; (3)

the methodology's potential rate *580 of error; (4) whether

the underlying theory or methodology has been generally

accepted as valid by the accident reconstruction and postcollision fire investigation community; and (5) the nonjudicial uses that have been made of his methodology. These

are similar to factors 1, 2, 4, 5 and 6 of those enumerated in

Robinson. But, as we have said above, that is not to imply

that the trial court was precluded from measuring Elwell's

methodology by Gammill's analytical gap analysis.

C. Elwell's Causation Testimony

[12] At the Robinson hearing, Elwell testified that the fuel

and battery system on the tractor were designed improperly,

and suggested safer designs. He criticized the placement of

the fuel tanks and also of the batteries' 7 proximity to the fuel

tanks. He criticized certain parts of the fuel system such as the

crossover or “balance line” hose between the two fuel tanks

and the spigots by which the hose was attached to each of

the tanks. He referenced a particular report, which was not

introduced, which he asserted supported his design critiques

and his suggested safer designs.

Elwell's analysis and conclusion that the fire began with

the fuel system and the battery system were based on

the “fire triangle” theory. He explained that under the fire

triangle theory, a post-collision fuel-fed fire such as the one

under consideration must be analyzed with an eye toward

the ignition, fuel, and oxygen sources that were available.

Because the air provided oxygen, his analysis centered on the

other parts required to complete the triangle, “the source of

fluids that could be ignited and what would it take to ignite

those fluids and fuel, of course, is the primary suspect, either

fuel or crude oil in this particular case.”

He did not testify that he inspected the remnants of the

burned tractor and trailer or that he performed or reviewed

any accident reconstruction analysis as to how the rollover

occurred and how different parts of the vehicle would have

been affected or harmed thereby. His Robinson hearing

testimony did not identify a particular alleged defect of the

tractor's fuel system that he concluded was the source of a

diesel fuel leak that initiated the fire.

On cross-examination he testified that he had read and relied

on “over 5,000” studies on the subject of the causes of postcollision fuel-fed fires. He did not specify any studies that

supported his conclusion as to the specifics involved in the
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)

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accident, and none were offered as evidence for the trial court

to consider in evaluating his testimony.

In coming to his conclusion that the fire began with the fuel

system and battery system of the tractor, Elwell asserted that

he relied on several specific factors and facts. Each of the

factors and facts he enumerated supported conclusions that

Tamez was burned by diesel and that the diesel ignited so

quickly that Tamez could not escape.

Even assuming that what Elwell relied on and classified as

“factors” and “facts” were true, however, which Mack denies,

the factors and facts are merely consistent with diesel fuel

having been released during the rollover and Tamez having

been burned by part of the fire fed by the tractor's diesel fuel.

They are not probative evidence that diesel fuel was released

because of one of the asserted defects in the fuel system or

that it was ignited by the battery system. He did not testify

to having analyzed, tested, or investigated the characteristics

of batteries like the battery in the wrecked tractor to support

his *581 opinion that the battery system was involved in

causing the fire. He failed to set out any process by which

he excluded other sources for ignition of the diesel fuel such

as mechanical sparks which could be generated when parts

of a truck make contact with the pavement, or ignition of the

cargo fuel which in turn could have ignited the diesel fuel. See

Gammill, 972 S.W.2d at 728; see also Robinson, 923 S.W.2d

at 559 (noting that an expert who is trying to find a cause

of something should carefully consider alternative causes).

For example, when Elwell was asked during the Robinson

hearing why he concluded that the fire originated with the

fuel and battery systems instead of with the crude oil cargo,

his response was that “if [crude oil] remains to be burned,

that after five or ten or fifteen minutes, then that's not the

fuel that started the fire.” He did not explain any investigation

or research that supported such a conclusion. He did not

elaborate on the amount of crude that was in the trailer when

the wreck occurred, calculate the amount of time it would take

the cargo to burn, or discuss or compare the relative ease of

ignition or flash points of the crude and diesel fuel. He did not

address any analysis or process by which he concluded that

some part of a trailer of crude oil would continue to burn for

several minutes only if it was ignited by, rather than being the

ignitor of, diesel fuel from the tractor's fuel system.

In sum, Elwell did not testify at the Robinson hearing to

a methodology by which he reached the conclusions as

to the fire having been caused by defects in the tractor's

fuel and battery systems. In order for Elwell's testimony on

causation to be reliable, he was required to present some

methodology that reliably supported his opinions that the

“fuel” and “ignition” parts of the fire triangle were supplied,

respectively, by the tractor's alleged fuel system defects and

battery system. He did not do so. The mere fact that the fuel

system had a design that could cause the hoses to separate is

not evidence that the hoses separated in this case.

Elwell's testimony did no more than set out “factors”

and “facts” which were consistent with his opinions, then

conclude that the fire began with diesel fuel from the tractor.

The reliability inquiry as to expert testimony does not ask

whether the expert's conclusions appear to be correct; it asks

whether the methodology and analysis used to reach those

conclusions is reliable. Kerr–McGee Corp. v. Helton, 133

S.W.3d 245, 254 (Tex.2004). The trial court was not required

to accept his opinions at face value just because Elwell was

experienced in examining post-collision fuel-fed fires. See

Gammill, 972 S.W.2d at 726 (holding that a court should not

admit opinion evidence which is connected to existing data

only by the ipse dixit of the expert).

We conclude that the trial court did not abuse its discretion

when it excluded Elwell's testimony on causation. The court

of appeals erred when it determined otherwise.

IV. The Summary Judgment

Mack moved for summary judgment on multiple grounds,

including the ground that there was no evidence Mack's fuel

system design was a producing or proximate cause of Tamez's

injuries. The Tamezes contend that even without Elwell's

testimony as to causation, they presented sufficient evidence

to survive summary judgment.

A. Standard of Review

A summary judgment motion pursuant to TEX. R. CIV. P.

166a(i) is essentially a motion for a pretrial directed verdict.

See *582 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d

706, 711 (Tex.1997). Once such a motion is filed, the burden

shifts to the nonmoving party to present evidence raising

an issue of material fact as to the elements specified in

the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547,

550 (Tex.2005). We review the evidence presented by the

motion and response in the light most favorable to the party

against whom the summary judgment was rendered, crediting
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evidence favorable to that party if reasonable jurors could,

and disregarding contrary evidence unless reasonable jurors

could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827

(Tex.2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d

193, 208 (Tex.2002).

B. Causation

Producing or proximate cause is an element of all

of the Tamezes' claims, which included negligence,

misrepresentation, breach of warranty, and design,

manufacturing, and marketing defects. Causation-in-fact is

common to both proximate and producing cause, including

the requirement that the defendant's conduct or product be a

substantial factor in bringing about the injuries in question.

See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775

(Tex.1995).

All the Tamezes' theories regarding the fire's cause

were based on allegations that the tractor's fuel system

was defectively designed and manufactured so as to be

unreasonably prone to fail and release flammable fluids in

an environment conducive to ignition and fire; that such

defects caused the release of diesel fuel; and that a defectively

designed and placed ignition source then caused ignition of

the released diesel.

[13] To survive summary judgment on their theory that

a defect in the tractor's fuel system was the cause of

the fire, the Tamezes were required to present more than

evidence of a fuel leak. See Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 600–01 (Tex.2004) (affirming summary

judgment because the plaintiffs' evidence “establishe[d] only

that a fire occurred, and [the plaintiffs' expert] could say no

more than that he ‘suspects' the electrical system caused the

fire”). They had to present evidence that (1) the diesel fuel

leaked because of one or more of the alleged defects, and (2)

the leak caused by the defect was the ignition point for the fire.

See Iracheta, 161 S.W.3d at 470 (holding that the possibility

that the fire occurred in the manner the plaintiff suggested is

not enough to support the jury's findings); Nissan Motor Co.

v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004).

The Tamezes point to several parts of their summary

judgment evidence that they say are sufficient, individually

or collectively, to defeat summary judgment: (1) an accident

witness's “personal assumption,” based on his averred

experience with and ability to recognize the smell of diesel

fuel, that Tamez was burned by diesel fuel because Tamez

was coated with a shiny, oily substance and did not smell like

crude oil; (2) a notation by Mack's accident reconstruction

expert noting a diesel fuel spill on the road; (3) a statement by

Elwell that the design of the system was such that if there was

any significant dislodgement of the fuel tanks, the fuel line

would separate; 8 (4) a statement by Mack's expert witness

that it was possible that a battery cable found in the tractor

had arced and ignited the fire, although *583 the witness

ultimately concluded that the crude-oil cargo caused the fire;

and (5) an eyewitness's statement implying that it took the fire

a short period of time to reach Tamez, who exited and crawled

away from the tractor after the accident.

[14] [15] [16] Proof other than expert testimony

will constitute some evidence of causation only when a

layperson's general experience and common understanding

would enable the layperson to determine from the evidence,

with reasonable probability, the causal relationship between

the event and the condition. Expert testimony is required

when an issue involves matters beyond jurors' common

understanding. See Alexander v. Turtur & Assocs., 146

S.W.3d 113, 119–20 (Tex.2004). Whether expert testimony

is necessary to prove a matter or theory is a question of law.

See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84,

89 (Tex.2004). In Fulgham we held that expert testimony

was necessary to establish the standard of care for connecting

refrigerated trailers to tractors and for the frequency and type

of inspection and maintenance of such connectors, because

those matters were not within the general experience and

common understanding of laypersons. Id. at 91; See also

Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.-

Amarillo 1999, pet. denied) (holding that performance of

mechanical work on turbine aircraft engines is not within the

experience of a layperson).

[17] A lay juror's general experience and common

knowledge do not extend to whether design defects such as

those alleged in this case caused releases of diesel fuel during

a rollover accident. See Nissan Motor Co., 145 S.W.3d at

137 (stating that we have consistently required competent

expert testimony and objective proof that a defect caused the

condition complained of). Nor would a lay juror's general

experience and common knowledge extend to determining

which of the fire triangle's fuel sources, diesel from the

tractor or crude from the tanker, would have first ignited,

or the source for the first ignition. That part of Elwell's

testimony that was properly before the trial court and the

testimony of other experts as to the amount of time they
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)

50 Tex. Sup. Ct. J. 80

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

spent in studying, investigating, and working in the field of

post-collision, fuel-fed fires demonstrated the intricacies of

such subject matter. Issues such as those regarding the fire's

cause(s) present matters beyond the general understanding

and common knowledge of lay jurors. Proof of causation in

this case also required expert testimony.

The summary judgment evidence presented by the Tamezes

did not contain proof that any of the possible sources of diesel

fuel was more likely than any other, or more likely than the

crude oil cargo, to have been the source of liquids that first

caught fire. Accordingly, there is no evidence that the source

was one of the alleged fuel system defects. Kindred v. Con/

Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

[18] The Tamezes also alleged that several ignition sources

were located in areas likely to contain diesel that would be

released in a wreck. The Tamezes point to expert testimony

that an arced battery cable found in the tractor could possibly

have ignited the fire. But, testimony that the battery or its

cable could possibly have ignited the fire is not evidence that

it probably did so. The expert who provided this testimony

could not determine whether the cable arced before the fire

was ignited or as it was being burned by an otherwise-ignited

fire. As proof of what caused the fire, such evidence is

speculative and is insufficient to prevent summary judgment.

See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936

(Tex.1998).

*584 [19] The plaintiffs also rely on circumstantial

evidence suggesting that the fire quickly reached Tamez. That

evidence is consistent with the Tamezes' theory that the fire

originated with fuel from the tractor's diesel fuel system. But,

such evidence does not make it more likely than not that the

battery or some other allegedly improperly located ignition

source ignited diesel from the tractor, as opposed to other

possible sources of ignition such as the cargo of crude oil.

Accordingly, the circumstantial evidence is not sufficient to

prevent summary judgment. Id.

V. Conclusion

The plaintiffs produced no evidence that the alleged defects

of the Mack tractor were a cause-in-fact of injuries to Abram

Tamez. Because causation is a required element of each of

the Tamezes' claims, the trial court properly granted summary

judgment. Accordingly, we reverse the court of appeals'

judgment and render judgment that the plaintiffs take nothing.

All Citations

206 S.W.3d 572, 50 Tex. Sup. Ct. J. 80

Footnotes

1 Elizabeth Tamez filed suit. Elsa Guerrero, Rosendo Tamez, Sr., Dora Tamez, Rosa Elvia Gonzales, Donna Kim Cantu,

and Terrie L. Zay intervened. Rosa subsequently nonsuited. For ease of reference all the claimants will be referred to

collectively as “the Tamezes” or “the plaintiffs.”

2 Other defendants were Fruehauf Trailer Corporation, Norco Crude Gathering, Inc., Glitsch Canada, Ltd., and Snyder

Tank Corp. The claims against those defendants were either nonsuited or settled and were severed from the claims

against Mack.

3 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995).

4 An offer of proof is sometimes referred to as a bill of exceptions. See TEX.R. EVID. 103(a)(2); TEX.R.APP. P. 33

(comment to 1997 change). As the court of appeals and the parties refer to the offer of proof in this case as a bill of

exceptions, we will, also.

5 After Elwell's expert testimony was excluded by the trial court, the Tamezes obtained testimony from another expert

witness, Douglas Holmes. Mack moved to exclude Holmes's testimony, and the trial court orally granted the motion. The

court of appeals upheld the exclusion of Holmes's testimony. 100 S.W.3d 549, 559. The Tamezes do not challenge the

court of appeals' ruling as to Holmes.

6 Id. (identifying the following considerations regarding reliability of scientific testimony: (1) the extent to which the theory

has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3)

whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5)

whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community;

and (6) the non-judicial uses that have been made of the theory or technique).

7 The record is not clear whether the tractor had one battery or two.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)

50 Tex. Sup. Ct. J. 80

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8 Elwell's testimony on design defect, as opposed to his testimony on causation, was not excluded.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Mack v. Moore, 669 S.W.2d 415 (1984)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

669 S.W.2d 415

Court of Appeals of Texas,

Houston (1st Dist.).

Bruce R. MACK d/b/a Mace & Mack, an

association of attorneys at law, Appellant,

v.

Andy and Wilma MOORE d/b/a Andy Moore

& Son Aeronautical Specialties, Appellees.

No. 01–83–0549–CV. | April 12, 1984.

Attorney brought a suit upon a sworn account for accounting

and tax services performed for clients and for attorney fees

incurred in selection and prosecution of case. The County

Civil Court at Law No. 3, Harris County, Hugo Touchy, J.,

entered judgment awarding fees for less than those requested,

and attorney appealed. The Court of Appeals, Bass, J., held

that: (1) where three expert witnesses testified that $4,865

was reasonable value of attorney's services and client did

not impeach expert witnesses on cross-examination, the only

reasonable conclusion to be drawn from the evidence was that

$4,865 was the reasonable value of services rendered, and

when that amount, less $1,715 for prior payments by clients,

left a balance of $3,150, that was amount which attorney

should have been awarded in judgment, and (2) where trial

court in its conclusions of law implied that the usual and

customary attorney fees were one-third of the amount of

the judgment, the award of $300 in attorney fees would be

increased to $1,050.

Reversed and rendered.

Attorneys and Law Firms

*416 Bruce B. Mack, Mace & Mack, Houston, for appellant.

*417 John Gilleland, Houston, for appellees.

Before WARREN, COHEN and BASS, JJ.

OPINION

BASS, Justice.

This is a suit upon a sworn account, and in the alternative

for quantum meruit, seeking $3,150.00 in fees for accounting

and tax services performed for appellees and $1,950.00 in

attorney's fees incurred in the collection and prosecution of

this case. The case was tried to the court. The appellees

defended on the basis that all fees incurred had been paid in

full, and further asserted that the charges alleged by appellant

were not in accordance with their set fee of $90.00 per month.

The appellant presented his case-in-chief and rested, and the

appellees rested immediately thereafter, calling no witnesses

to controvert appellant's claim.

The trial court entered judgment for appellant, finding that

the appellees requested the services be performed, that the

services were performed to the satisfaction of appellees,

that there was no agreement whereby appellees would pay

appellant a set fee per month, and that the appellees had

agreed to pay the reasonable value of the services which were

performed. The court then rendered judgment for appellant,

finding that the reasonable value of the appellant's services

was $275.00 per month, and the amount still due and owing

by appellees was $1,035. Additionally, the trial court awarded

appellant one third of the final judgment, or $300.00, in

attorney's fees. The appellant appeals on the points that trial

court's valuation of both his services and his attorneys fees

was erroneous.

The appellant, Bruce R. Mack, is a licensed C.P.A. and

tax attorney, with an L.L.M. in taxation. His tax experience

includes numerous years as an agent and regional supervisor

for the I.R.S. and as an auditor with a large public accounting

firm.

In January of 1981, the appellees retained the appellant to

perform certain tax work in connection with their business,

including the reconciliation of their prior bank accounts and

employee payroll tax records, and the preparation and filing

of their income tax return for 1980. In connection with this

work, appellant was to review prior years payroll tax returns

and to amend as necessary, file any and all necessary reports,

and then keep appellees' records current through the quarterly

preparation of payroll tax returns, sales tax reports, and the

monthly preparation of their profit and loss statements.

Appellant completed the agreed work, preparing all necessary

returns and delivering this work to the appellees. The degree

of difficulty in the preparation of these reports was greatly

enhanced by various errors within the prior reports and bank

statements. This required the appellant supervisory employee

to have several conferences with appellees in an attempt to

reconcile these errors. The appellant personally presented his

final invoice of $4,865.00 to appellees, and explained the
Mack v. Moore, 669 S.W.2d 415 (1984)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

charges as they related to the work which he performed.

Appellees agreed to pay the invoice and further negotiated

a set fee of 275.00 per month for future work, including

the periodic preparation of the company's payroll reports

etc. However, after they had paid appellant $1,715.00, of

the invoice, appellees refused to pay the remaining balance,

claiming the bill was paid in full. This action left $3,150.00

still due and owing on the account, and the appellant was

forced to file suit to collect the balance.

Trial was to the court, and after judgment for appellant the

trial judge, upon proper request, made the following findings

of fact and conclusions of law.

FINDINGS OF FACT

1. On or about January 1, 1981, Defendants engaged

Plaintiff to perform certain accounting and tax work for

them.

2. Defendants had no agreement with Plaintiff for a set

sum for the work but *418 were to pay the reasonable

value of services rendered.

3. Plaintiff performed the services as reflected on his

invoices to Defendants.

4. Defendants were satisfied with the services performed

by the Plaintiff.

5. The reasonable value of the services performed

by Plaintiff is $2,750.00 (10 months x $275.00) and

Defendants have paid to the Plaintiff $1,715.00 leaving

a balance due of $1,035.00.

6. Plaintiff had to engage John J. Eikenburg, a Texas

attorney, to collect plaintiff's claim.

7. Plaintiff is entitled to attorney's fees under Article

2226, Texas Revised Civil Statutes.

CONCLUSIONS OF LAW

1. Defendants are indebted to Plaintiff for the sum of

$1,035.00.

2. The indebtedness of Defendants to Plaintiff bears

interest at the rate of six percent per annum from January

1, 1982, until date of Judgment.

3. Plaintiff is entitled to attorney's fees equal to one-third

of the judgment, being $300.00.

4. Plaintiff's right to collection of such indebtedness is

not barred by limitations.

Initially, the appellant contends the trial court erred in not

finding as a fact that the reasonable value of the services he

performed and which were still due and owing to him by the

appellees was $3,150.00, because there is no evidence upon

which to support any other conclusion, or alternatively, the

trial court's finding as to the amount due and owing is against

the weight of the evidence. In this point of error, appellant

combines a “matter of law” point and an “against the great

weight” point in one ground of error. In essence, the appellant

contends the evidence introduced at trial established the value

of his services due and owing to be $3,150.00, as a matter of

law, and asks us to reverse the trial court judgment and render

judgment for appellant in this amount.

In the alternative, appellant asserts the finding of the trial

court as to the value of his services is so against the great

weight and preponderance of the evidence as to be manifestly

unjust, and thus requires a reversal of the judgment and

remand of the case for a new trial.

[1] To determine a “no evidence” or “matter of law”

point this court must disregard all evidence contrary to the

trial court's finding, and if there is any remaining evidence

which would support the verdict or judgment, the trial court's

judgment must be upheld. If, after the removal of all contrary

evidence this court finds an absence of any evidence which

would support the verdict or judgment, a contrary conclusion

to the verdict or judgment is required as a matter of law. In

Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The finding at issue before this court is the amount of

the trial court's award as the reasonable value of the

accounting services which were performed. The direct,

positive, uncontroverted evidence as presented by the three

experts, including appellant and appellant's ex-employee

(the appellees' present accountant) was that the charges as

evidence in the invoices were reasonable charges for the

services which were performed. However, in spite of this

fact the trial court assessed the value of those service at the

arbitrary figure of $275.00 per month, the amount the parties

had agreed to for the preparation of reports necessary for the

maintenance of their records. This figure did not consider the

extensive work required to update and correct appellees' back

records, so that they were in a position to be maintained.
Mack v. Moore, 669 S.W.2d 415 (1984)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

[2] [3] It is the general rule that since the trier of the

fact is the sole judge of the credibility of the witnesses and

the weight to be given their testimony, opinion evidence is

insufficient to conclusively establish a fact issue at trial, and

thus give rise to a directed verdict or in this case a reversal

and rendition. However, in Teal v. Powell Lumber Co., 262

S.W.2d 223 (Tex.Civ.App.-Beaumont, 1953, no writ), the

*419 court applied this test to the trial judge but further

stated that it is only within the province of court or jury to

decide conflicting evidence, and where there is evidence on

an issue and no evidence to the contrary, the court or jury

has no right to disregard the evidence and decide the issue in

accordance with their own wishes. Id at 225. In the present

case, the only evidence presented on this issue supported

appellant's valuation.

[4] Furthermore, in Exxon Corporation v. West, 543 S.W.2d

667 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref'd, n.r.e.)

Chief Justice Evans reviewed the effect of uncontroverted

expert testimony and its ability to conclusively establish a fact

issue. In support of this court's reversal and rendition, Justice

Evans stated that while such evidence is generally held not

to be binding on the trier of fact if more than one possible

conclusion can be drawn from the facts, it may be regarded

as conclusive if the nature of the subject matter require the

fact finder to be guided solely by the opinion of experts and

the evidence is otherwise credible and free from contradiction

and inconsistency.

[5] [6] Furthermore, this rule applies even where

the testifying experts are interested witnesses if their

testimony is clear, direct, positive, if nothing creates a

reasonable suspicion as to the witness' credibility and if the

opposing party could have offered but failed to offer, any

evidence in contradiction thereof. This failure to offer such

contrary evidence “constitutes effective corroboration” of

the witnesses' testimony. Id. at 678. See also, Collora v.

Navarro, 574 S.W.2d 65 (Tex.1978) stating that testimony

by interested lay witnesses may be the basis for a directed

verdict, where the testimony “pertains to matters reasonably

capable of exact statement, and is clear, direct, positive and

internally void of inconsistencies and contradictions, and is

uncontroverted either by testimony of other witnesses or by

circumstances—in short, when there is nothing to cause any

reasonable suspicion as to its truth.” Id. at 69.

[7] In the present case, three expert witnesses testified

as to the reasonableness of the charges for the services

rendered: the appellant, his ex-employee, the appellees'

present accountant, John Mason, and an independent,

disinterested C.P.A., Patrick Cantrell. Each of these witnesses

reached the same conclusion, i.e., that the charges as reflected

by the invoice were reasonable. Appellees called no witnesses

to refute this determination nor did they otherwise impeach

these witnesses on cross-examination. Therefore, here, as in

Exxon, supra, the only reasonable conclusion which could

be drawn from the evidence was that stated by appellant's

experts.

The court, in making its findings of fact, stated that the

amount owed and agreed by the appellees was the reasonable

value of the services which were performed. That reasonable

value was conclusively shown through expert testimony to

have been $4,865.00. That amount, less $1,715.00 for prior

payments by the appellees, left a balance of $3,150.00, which

is the amount which appellant was entitled to in judgment.

Since here, as in Exxon, supra, “it does not appear that the

cause should be remanded for further proceedings in the

interest of justice or for any other reason,” the judgment of

this court should be one of rendition. Exxon, supra, at 674;

Hodges Tire Co. v. Kemp, 334 S.W.2d 627 (Tex.Civ.App.-

Forth Worth 1960, no writ).

In his second point of error, the appellant asserts the trial

courts findings of $300.00 in attorney's fees had no support

in the evidence and asks this court to reverse and render

judgment for the stated amount of $1,950.00.

[8] [9] The court in its findings of fact stated that appellant

had the right to recover the reasonable cost of attorneys fees.

Unlike the above expert testimony, there are factors other

than the testimony of expert witnesses which could have been

used by the court in its determination of what amount was

“reasonable.” Some of these factors which may have been

considered by the court are: the complexities *420 of the

case, the amount of time spent in preparation, the quality

of counsel, and the amount of potential and actual recovery.

Moreover, the judge would have been familiar with the fees

in this area, and could have drawn upon his own expertise

in his decision making. Therefore, since the amount and

reasonableness of attorney's fees is a question of fact which

allows the consideration of various intangibles incapable of

review by this court, the trial court award cannot be disturbed

absent an abuse of discretion and we do not find such an abuse

in the case before this court.
Mack v. Moore, 669 S.W.2d 415 (1984)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

[10] Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp.1984)

states that the usual and customary fees charged for the type

of work performed are presumed reasonable. There was no

testimony introduced stating the usual and customary fees for

this type of action. Furthermore, the court in its conclusions

of law implied that the usual and customary fees in this

area are one-third the amount of judgment, and it apparently

was on this basis that the court entered judgment of $300.00

in attorney's fees. Therefore, in light of our disposition of

appellant's first point of error, the award of $300.00 is patently

incorrect. Therefore, we order the judgment be reformed in

accordance with the trial court's conclusions of law, and

reflect the corresponding award of attorney's fees of one third

the corrected judgment, or $1,050.

We accordingly reverse the judgment of the trial court and

render judgment in the amount of $3,150.00 upon the unpaid

account, and for $1,050.00 for the appellant's attorney's fees.

All Citations

669 S.W.2d 415

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

259 S.W.3d 358

Court of Appeals of Texas,

Dallas.

METHODIST HOSPITALS OF DALLAS d/

b/a Methodist Medical Center, Appellant

v.

MID–CENTURY INSURANCE

COMPANY OF TEXAS, Appellee.

No. 05–07–00897–CV. | July 2, 2008.

Synopsis

Background: After hospital filed hospital lien for payment

of hospital bills accrued by patient injured by third-party in

auto accident, and patient received settlement from thirdparty's insurer for the accident, hospital brought action

against the third-party's insurer to enforce the lien. The 289th

Judicial District Court, Dallas County, Emily Tobolowsky,

J., 2007 WL 5112362, granted insurer's motion for summary

judgment. Hospital appealed.

[Holding:] The Court of Appeals, Morris, J., held that

hospital's notice of lien did not substantially comply with

requirements of statute, and, thus, was unenforceable.

Affirmed.

Attorneys and Law Firms

*359 Blair Grant Francis, Joe Don Ridgell, Francis, Orr &

Totusek, L.L.P., Dallas, TX, for Appellant.

Hermon L. Veness, Jr., Carnahan Thomas, L.L.P., Southlake,

TX, for Appellee.

Before Justices MORRIS, WHITTINGTON, and

FITZGERALD.

OPINION

Opinion by Justice MORRIS.

In this hospital lien case, Methodist Hospitals of Dallas d/b/

a Methodist Medical Center contends the trial court erred in

concluding it had not properly secured its lien and granting

a summary judgment in favor of Mid–Century Insurance

Company of Texas. Asserting four points of error, Methodist

contends its lien satisfied the requirements of section 55.005

of the Texas Property Code and Mid–Century was not entitled

to a no-evidence summary judgment. After reviewing the

summary judgment record, we conclude Methodist did not

substantially comply with the requirements of section 55.005.

We affirm the trial court's judgment.

I.

On October 11, 1999, Lori Ward was involved in a car

accident with a person insured by Mid–Century Insurance

Company. Ward was taken to Methodist Medical Center

where she was treated for her injuries. The bill for the medical

services and supplies provided to Ward by Methodist was

$8,656.75.

Ward made a claim with Mid–Century for the damages she

suffered as a result of the accident. Mid–Century evaluated

the claim and offered her its policy limits. The claim was

settled on September 6, 2000. Mid–Century issued a check

dated September 20, 2000 made jointly payable to Ward

and her attorney, Juan Hernandez. Hernandez testified that

someone from his office picked up the check that same day.

One day later, on the afternoon of September 21, 2000,

Methodist filed a written notice of lien for the medical

services and supplies provided to Ward. The lien listed Ward

as the injured person treated by *360 Methodist. In addition,

however, the notice incorrectly listed the date of the accident

as October 12, 1999 and stated the person liable for the

accident was Ward rather than the third party insured by Mid–

Century. Finally, the notice incorrectly stated the amount of

the lien as $9,189.29. The lien was filed with the county clerk

and was made available to the public approximately ten to

twelve days later.

When Methodist discovered that the settlement proceeds from

Mid–Century had been disbursed, it filed this suit against

Mid–Century and Hernandez to enforce its lien. 1 Mid–

Century moved for a traditional and no-evidence summary

judgment arguing that Methodist failed to properly secure its

lien as required by section 55.005 of the Texas Property Code.

Methodist replied and filed a cross-motion for summary

judgment arguing that it complied with the requirements of

section 55.005 as a matter of law. After considering the
Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

motions, the trial court granted Mid–Century's motion for

summary judgment and denied Methodist's cross-motion for

summary judgment. The court ordered that Methodist take

nothing by its claims. This appeal ensued.

II.

Methodist raises four issues on appeal challenging the trial

court's decision to render summary judgment against it.

Because we conclude Methodist's third issue is dispositive of

this appeal, we begin by addressing that issue.

[1] It its third issue, Methodist contends its notice of

lien substantially complied with the requirements of section

55.005(b). Section 55.005(b) states that a notice of lien filed

by a hospital or emergency medical services provider must

contain: (1) the injured individual's name and address; (2)

the date of the accident; (3) the name and location of the

hospital or emergency services provider claiming the lien; and

(4) the name of the person alleged to be liable for damages

arising from the injury, if known. TEX. PROP.CODE ANN.

§ 55.005(b) (Vernon 2007). As stated above, the notice of lien

filed by Methodist incorrectly stated the date of the accident

and listed Ward, the injured person, as the person liable for

the damages.

[2] [3] Methodist first argues that, because a hospital

lien is statutorily created, substantial compliance with the

notice requirements is all that is required for the lien to

be enforceable. See Citicorp Real Estate, Inc. v. Banque

Arabe Internationale D' Investissement, 747 S.W.2d 926, 929

(Tex.App.-Dallas 1988, writ denied) (substantial compliance

all that is required for statutorily created judicial lien).

Even assuming substantial compliance with the notice

requirements is sufficient for a hospital lien to be enforceable,

we conclude the notice at issue in this case did not

substantially comply with the requirements of section

55.005(b). “Substantial compliance” does not permit a party

to ignore statutory requirements. See Wesco Distribution, Inc.

v. Westport Group, Inc., 150 S.W.3d 553, 559 (Tex.App.-

Austin 2004, no pet.). Even if we liberally construe a statute

to achieve its purposes, we may not enlarge or alter the plain

meaning of the statutory language. See Conn, Sherrod & Co.

v. Tri–Electric Supply Co., 535 S.W.2d 31, 34 (Tex.Civ.App.-

Tyler 1976, writ ref'd n.r.e.).

[4] Taken together, the errors made by Methodist in its

notice of lien render the lien unenforceable. Of the four

statutory notice requirements, Methodist only complied with

two. Methodist contends its *361 error in stating the date of

the accident is a minor discrepancy because the actual date

of the accident was only an hour and twenty-four minutes

earlier. There is nothing on the notice to indicate the time

of the accident, however. And the date of the accident is a

critical component of the notice. Because the lien attaches

only to a cause of action, judgment, or settlement based on

the accident giving rise to the injuries treated by the hospital,

the date of the accident listed on the notice is crucial. See

TEX. PROP.CODE ANN. § 55.003. It is by comparing the

date and the name of the responsible party, if known, that one

can determine whether the accident made the subject of the

legal claims is the same as the accident made the subject of

the lien. There is nothing on Methodist's notice of lien that

would enable someone searching the record to determine that

the lien was intended to attach to the accident occurring on

an earlier date.

Methodist further argues that its listing of Ward as the liable

party does not render the notice out of compliance with the

statute because the name of the liable party is not required.

The statute requires the name of the liable party only “if

known.” See id. § 55.005(b)(4). Having undertaken to name

the liable party, however, it was incumbent upon Methodist

to name the correct party. Indeed, by naming Ward as the

liable party, the notice of lien appears unenforceable on its

face. A hospital can impose a lien only on a cause of action

or claim that an individual has for injuries “caused by an

accident attributed to the negligence of another person.” See

id. § 55.002(a) (emphasis added). By naming Ward as both

the injured party and the liable party, the notice appears to

negate the element that the accident was attributed to the

negligence of another person.

To adopt Methodist's argument that its notice of lien

substantially complied with the requirements of section

55.005 would vitiate the requirements of the statute. We

conclude the trial court properly ruled Methodist's lien

was unenforceable under section 55.005. Because of our

resolution of this issue, it is unnecessary for us to Methodist's

the other issues.

We affirm the trial court's judgment.

All Citations

259 S.W.3d 358
Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Footnotes

1 Methodist later dismissed its claims against Hernandez.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Nall v. Plunkett, 404 S.W.3d 552 (2013)

56 Tex. Sup. Ct. J. 818

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

404 S.W.3d 552

Supreme Court of Texas.

Justin Curtis NALL, Robert W.

Nall, and Olga L. Nall, Petitioners,

v.

John B. PLUNKETT, Respondent.

No. 12–0627. | June 28, 2013.

Synopsis

Background: Guest at New Year's Eve party brought

negligence action against hosts and driver relating to personal

injuries he sustained when he attempted to prevent the

driver from driving intoxicated after leaving the party. The

District Court, Fort Bend County, Brady G. Elliott, J., granted

summary judgment in favor of hosts. Guest appealed. The

Court of Appeals, Charles W. Seymore, J., 374 S.W.3d 584,

reversed and remanded. Hosts sought review which was

granted.

[Holding:] The Supreme Court held that summary judgment

motion specifically addressed the negligent-undertaking

claim as required for Court of Appeals to affirm summary

judgment on that basis.

Reversed.

Attorneys and Law Firms

*553 David Hill Bradley, Walters Balido & Crain, L.L.P.,

Houston, TX, Gregory R. Ave, Jason L. Wren, Walters,

Balido & Crain, L.L.P., Dallas, TX, for Petitioner Justin

Curtis Nall.

Charles H. Peckham, Mary Abbott Martin, Peckham PLLC,

Jon M. Stautberg, Attorney at Law, Houston, TX, for

Respondent John B. Plunkett.

Opinion

*554 PER CURIAM.

This case presents an issue of summary judgment procedure.

John Plunkett sued Justin Nall, Robert Nall, Olga Nall,

and Justin Kowrach for personal injuries suffered at a New

Year's Eve party at the Nalls' residence. Plunkett pled causes

of action against the Nalls for negligence based on an

undertaking theory and for premises liability. The Nalls

moved for summary judgment as to Plunkett's negligence

claim on the ground that they owed no duty to Plunkett

under the facts pled in his petition. The trial court rendered

judgment in favor of the Nalls as to “all issues except those

relating to premises liability.” Plunkett appealed, arguing that

summary judgment was improper because the Nalls' summary

judgment motion addressed only social host liability and

not the negligent-undertaking theory. The court of appeals

agreed and reversed the summary judgment. 374 S.W.3d 584,

586–87. We hold that the Nalls' summary judgment motion

specifically addressed the negligent-undertaking claim by

arguing that our decision in Graff v. Beard, 858 S.W.2d 918,

921 (Tex.1993), forecloses the assumption of any duty by a

social host under the facts of this case. Because Plunkett did

not argue that summary judgment was improper on the merits,

we do not reach any substantive issues related to the summary

judgment. See TEX.R.APP. P. 53.4. Accordingly, we reverse

the court of appeals' judgment and reinstate the trial court's

judgment.

Plunkett attended Justin Nall's New Year's Eve party at a

home that is owned by his parents, Robert and Olga Nall.

Plunkett alleges that the Nalls hosted the party and, knowing

that alcohol would be consumed at the house, required all

attendees who remained at the house after midnight to spend

the night. Plunkett contends that the Nalls failed to confiscate

car keys of those who remained after midnight or take any

other actions to keep attendees from leaving. The petition

states that Robert and Olga went to bed after midnight

but before 2:00 a.m., without ensuring that those still in

attendance would remain until they were safe to drive. Shortly

after 2:00 a.m., Kowrach and a friend attempted to leave

in the friend's vehicle. Plunkett alleges that he attempted to

convince Kowrach not to leave, as they were both intoxicated.

As Plunkett stood on the running board of the vehicle and

attempted to pull the keys from the ignition, Kowrach pressed

the accelerator, gathered speed, then hit the brakes. The

sudden braking and Plunkett's momentum propelled him head

first into the ground, lodging his head under a parked car.

Plunkett suffered traumatic brain damage as a result of his

injuries and will require medical care for the rest of his life.

Plunkett sued the Nalls and Kowrach. Plunkett alleged that

the Nalls were liable for “common law negligence,” “fail[ing]

to exercise due care in their undertaking” to protect guests,

and for premises liability. The Nalls moved for summary

judgment, arguing that they owed no duty to Plunkett. The
Nall v. Plunkett, 404 S.W.3d 552 (2013)

56 Tex. Sup. Ct. J. 818

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

trial court granted the motion as to all claims except for the

premises liability claim, which Plunkett eventually nonsuited.

The trial court then severed Plunkett's claims against the Nalls

from his claims against Kowrach. Plunkett appealed. The

only issue briefed by Plunkett on appeal was whether the

trial court erred by granting summary judgment on Plunkett's

undertaking claim based on the Nalls' alleged failure to

address that claim.

A divided court of appeals reversed and remanded, holding

that the trial court erred by granting summary judgment

because the Nalls failed to address Plunkett's negligentundertaking theory in their motion. 374 S.W.3d at 586.

The court of *555 appeals construed Plunkett's petition

as alleging a claim for negligence based on an undertaking

theory and the Nalls' summary judgment motion as arguing

only that summary judgment was proper as to a negligence

claim based on social host liability. Id. at 586–87.

[1] [2] [3] This procedural issue was the only issue

argued by Plunkett on appeal and the only issue addressed

by the court of appeals. See id. at 585. We review a grant

of summary judgment de novo. Exxon Corp. v. Emerald Oil

& Gas Co., 331 S.W.3d 419, 422 (Tex.2010). In a summary

judgment motion under Rule 166a(c) of the Texas Rules of

Civil Procedure, a movant “shall state the specific grounds

therefor,” and a defendant who conclusively negates at least

one of the essential elements of a cause of action is entitled

to summary judgment. TEX. R. CIV. P. 166a(c). A trial

court cannot grant summary judgment on grounds that were

not presented. See, e.g., FDIC v. Lenk, 361 S.W.3d 602,

609 (Tex.2012); see also G & H Towing Co. v. Magee,

347 S.W.3d 293, 297 (Tex.2011) (per curiam) (“Granting a

summary judgment on a claim not addressed in the summary

judgment motion therefore is, as a general rule, reversible

error.”). “Issues not expressly presented to the trial court

by written motion, answer or other response shall not be

considered on appeal as grounds for reversal.” TEX. R.

CIV. P. 166a(c). We have also noted that “[a]n exception is

required should a non-movant wish to complain on appeal

that the grounds relied on by the movant were unclear or

ambiguous.” McConnell v. Southside Indep. Sch. Dist., 858

S.W.2d 337, 342 (Tex.1993); see also D.R. Horton–Tex., Ltd.

v. Markel Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex.2009)

(“A non-movant must present its objections to a summary

judgment motion expressly by written answer or other written

response to the motion in the trial court or that objection is

waived.”). However, even when a non-movant fails to except,

the court of appeals cannot “read between the lines” or infer

from the pleadings any grounds for granting the summary

judgment other than those grounds expressly set forth before

the trial court. McConnell, 858 S.W.2d at 343.

[4] [5] Like the court of appeals, we construe Plunkett's

petition as alleging two causes of action against the

Nalls: (1) “common law negligence” based on the Nalls'

failure to “exercise due care in their undertaking” (the

negligent-undertaking claim), and (2) premises liability. The

critical inquiry concerning the duty element of a negligentundertaking theory is whether a defendant acted in a way

that requires the imposition of a duty where one otherwise

would not exist. See Torrington Co. v. Stutzman, 46 S.W.3d

829, 838–39 (Tex.2000); see also Osuna v. S. Pac. R.R.,

641 S.W.2d 229, 230 (Tex.1982) (“Having undertaken to

place a flashing light at the crossing for the purpose of

warning travelers, the railroad was under a duty to keep

the signal in good repair, even though the signal was

not legally required.”). In Torrington, we held that a jury

submission for a negligence claim predicated on a negligentundertaking theory requires a broad-form negligence question

accompanied by instructions detailing the essential elements

of an undertaking claim. Torrington, 46 S.W.3d at 838–

39. Accordingly, the broad-form submission for a typical

negligence claim and a negligent-undertaking claim is the

same, except that an undertaking claim requires the trial

court to instruct the jury that a defendant is negligent only

if: (1) the defendant undertook to perform services that it

knew or should have known were necessary for the plaintiff's

protection; (2) the defendant failed to exercise reasonable

care in performing *556 those services; and either (a) the

plaintiff relied upon the defendant's performance, or (b) the

defendant's performance increased the plaintiff's risk of harm.

Id.; see also RESTATEMENT (SECOND) OF TORTS §

324A (providing the rule for liability to a third person for

negligent performance of an undertaking).

[6] [7] The Nalls' summary judgment motion stated the

issue addressed as: “Whether [the Nalls] have any duty to

[Plunkett] in the factual scenario plead by [Plunkett].” The

Nalls' “short answer” was that “Texas does not recognize

social host liability, and [the Nalls] do not have any duty to

[Plunkett] in this case.” Plunkett did not file any exception to

the Nalls' motion. The court of appeals construed the Nalls'

motion as addressing Plunkett's negligence claim only as a

social-host liability claim and not as a negligent-undertaking

claim. 374 S.W.3d at 586. We construe the Nalls' motion,

however, as specifically moving for summary judgment on

the duty element of Plunkett's negligence claim, making a
Nall v. Plunkett, 404 S.W.3d 552 (2013)

56 Tex. Sup. Ct. J. 818

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

two-part argument that addressed the absence of a duty in both

the social host context and the undertaking context. First, the

Nalls correctly pointed out that, under Texas law, a host has

no duty to prevent a guest who will be driving from becoming

intoxicated or to prevent an intoxicated guest from driving. 1

See Graff, 858 S.W.2d at 918. Second, the Nalls addressed the

undertaking theory asserted by Plunkett in light of Graff. 2

Specifically, the Nalls argued:

[Plunkett] places a great amount of emphasis on the alleged

“rule” of the Nall hosts that required a guest who was

still at the home at midnight to spend the night. The court

in Graff v. Beard also discussed the scenario wherein a

home owner attempts to assume that duty and the problems

inherent in trying to decide scope of duty in that context.

The Supreme Court refuses to recognize the assumption of

the duty argument in the case of a social host.

We hold that the Nalls' summary judgment motion

specifically addressed the negligent-undertaking claim by

arguing that Graff forecloses the assumption of any duty

(i.e., an undertaking) by a social host. Therefore, the court

of appeals erred by reversing the trial court's judgment on

procedural grounds.

[8] Whether the Nalls were entitled to summary judgment

based on the merits of the argument above is not at issue in

this appeal, and we do not address it. Texas Rule of Appellate

Procedure 53.4 provides that a party may obtain a remand

to the court of appeals to address issues or points briefed in

that court but not decided by that court, or we may address

those issues in the interest of judicial economy. TEX.R.APP.

P. 53.4. As we previously noted, Plunkett briefed only the

procedural issue on appeal to the court of appeals. He did not

argue that a genuine issue of material fact precluded summary

judgment on the merits. 3 We conclude that Plunkett waived

the issue of whether summary judgment was proper on the

merits in this case by failing to brief it in the court of appeals.

See id. Accordingly, we grant *557 the Nalls' petition for

review, and without hearing oral argument, we reverse the

court of appeals' judgment and reinstate the trial court's

judgment. See TEX.R.APP. P. 59.1.

All Citations

404 S.W.3d 552, 56 Tex. Sup. Ct. J. 818

Footnotes

1 The portion of the Nalls' summary judgment motion that addressed this point was introduced by the following heading:

“No statutory or common law duty is owed by a social host.”

2 The portion of the Nalls' summary judgment motion that addressed this point was introduced by the following heading:

“Absent a legal right to restrain a guest, a host owes no duty to a guest to do so.”

3 Plunkett's brief at the court of appeals provided that the issue was a “legal one—sufficiency of pleadings to support a

cause of action.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

451 S.W.3d 133

Court of Appeals of Texas,

Amarillo.

Pak–a–Sak, Inc., Appellant

v.

City of Perryton, Appellee

No. 07–14–00047–CV | November 6, 2014

Synopsis

Background: Convenience store petitioned for review of

decision by city to deny its application for permit to sell

wine and beer. The County Court, Ochiltree County, affirmed

denial, and store appealed. The 84th District Court, Ochiltree

County, William D. Smith, J., affirmed. Store appealed.

Holdings: The Court of Appeals, Brian Quinn, C.J., held that:

[1] city did not exceed its statutory authority to enact

ordinance prohibiting sale of beer in residential area when it

enacted ordinance prohibiting sale, dispensation, or delivery

of any alcoholic beverage within residential area in city;

[2] ordinance was not unconstitutionally vague; and

[3] substantial evidence supported finding that convenience

store was located within residential area.

Affirmed.

*135 On Appeal from the 84th District Court, Ochiltree

County, Texas, Trial Court No. CV–13743, Honorable

William D. Smith, Presiding

Attorneys and Law Firms

Benjamin Doyle, Gavin Gadberry, Underwood Law Firm,

P.C., Amarillo, for Appellant.

Angelique S. Weaver, Kristi R. Weaber, Mayfield Law Firm,

Amarillo, for Appellee.

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

Brian Quinn, Chief Justice

This is an appeal from an order denying an application for

a license to sell alcoholic *136 beverages at a Pak–a–

Sak convenience store location in the City of Perryton (the

City). The denial was premised on a municipal ordinance

which prohibits the sale of alcohol within a “residential

area” of the City. Pak–a–Sak contends that 1) the ordinance

unconstitutionally grants authority to the City in excess of

that granted by the legislature under the Texas Alcoholic

Beverages Code, 2) the ordinance is unconstitutionally vague

and ambiguous, and 3) there is no substantial evidence to

support a finding that Pak–a–Sak's location is in a residential

area. We affirm.

On April 16, 2013, the City enacted Ordinance 1000–

13 which states: “It shall be unlawful for any person to

sell, dispense or deliver, or cause to be sold, dispensed

or delivered, any beer, liquor, or any other intoxicating

beverage within a residential area in the city.” 1 The

ordinance was enacted under the authority of § 109.32 of

the Texas Alcoholic Beverage Code which provides that

an incorporated city may prohibit the sale of beer in a

residential area. TEX. ALCO. BEV.CODE ANN.. § 109.32

(West 2007). Neither the statute nor the ordinance define

the phrase “residential area.” On June 3, 2013, Pak–a–Sak

submitted an Application for Wine and Beer Retailer's Off–

Premises Permit (BQ license) to the City for its store at 522

SW 9th Avenue in Perryton. 2 The application was denied.

That decision was appealed to the county court which upheld

it. It was then appealed to the district court which did the

same.

Ultra Vires

[1] As previously mentioned, Pak–a–Sak initially contends

that the City exceeded legislative authorization by failing to

define “residential area.” That is, “[b]y failing to objectively

define ‘residential area,’ the City [allegedly] acted outside the

scope of its authority.” Appellant continues by arguing that

the “Texas Legislature did not provide municipalities with

unlimited authority to determine when its actors may prohibit

the sale of alcohol ... once a county has voted under a Local

Option Election to allow the sale of alcohol, the municipality

may only limit the sale in certain circumstances ... [which]
Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

circumstances are outlined in the Texas Alcoholic Beverages

Code.”

The circumstance alluded to is specified in § 109.32 and

states that “[a]n incorporated city or town by charter or

ordinance may ... prohibit the sale of beer in a residential

area.” TEX. ALCO. BEV.CODE ANN.. § 109.32(a)(1)

(West 2007) (Emphasis added). The portion of the ordinance

adopted by the City and attacked at bar reads: “[i]t shall

be unlawful for any person to sell, dispense or deliver, or

cause to be sold, dispensed or delivered, any beer, liquor, or

any other intoxicating beverage within a residential area in

the city.” (Emphasis added). As can be seen, the limitation

mentioned in the statute is identical to that specified in the

ordinance. Moreover, and contrary to the insinuation of Pak–

a–Sak, § 109.32 does not direct the municipality to further

define the phrase “residential area.” Nor did appellant cite

us to authority expressly imposing such an obligation on the

City. Given that the ordinance simply reiterated the limitation

specified by the statute, we cannot say that the City acted

outside the scope of its authority by enacting the ordinance.

Void for Vagueness

[2] Next, we address Pak–a–Sak's constitutional complaint.

It believes that the phrase “residential area” is ambiguous and

*137 susceptible to ad hoc interpretation and application.

That purportedly being so, and because the City failed to

provide guidelines explaining what it meant by or otherwise

define the phrase, the provision is impermissibly vague and,

therefore, unconstitutional because it violates due process. 3

We disagree.

[3] [4] The same rules apply to the construction of

ordinances as to the construction of statutes. Bd. of

Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 430

(Tex.2002); Mills v. Brown, 159 Tex. 110, 316 S.W.2d

720, 723 (1958). Furthermore, we generally presume that

an ordinance is valid, and the party challenging it has the

burden to prove otherwise. Bd. of Adjustment of San Antonio

v. Wende, 92 S.W.3d at 431; Brookside Village v. Comeau,

633 S.W.2d 790, 792–93 (Tex.1982).

[5] [6] Next, a statute or ordinance is unconstitutionally

vague if it fails to give fair notice of what conduct

may be punished or it invites arbitrary and discriminatory

enforcement by failing to establish guidelines. Commission

for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437

(Tex.1998). That is, it may not be so vague and standardless

as to leave a governing body free to decide, without any

legally fixed guidelines, what is prohibited in each particular

case. Lindig v. City of Johnson City, No. 03–11–00660–CV,

2012 WL 5834855, at *3, 2012 Tex.App. LEXIS 9563, at *12

(Tex.App.—Austin November 14, 2012, no pet.) (mem.op.).

If persons of common intelligence are compelled to guess at

its meaning and applicability, then principles of due process

will not let it stand. Id. at *3–4, 2012 Tex.App. LEXIS 9563,

at *12–13.

[7] [8] [9] [10] Yet, it should be remembered that

statutes deal with “untold and unforeseen variations in factual

situations, and the practical necessities of discharging the

business of government inevitably limit the specificity with

which legislators can spell out prohibitions.” Pennington v.

Singleton, 606 S.W.2d 682, 689 (Tex.1980). Thus, no more

than a reasonable degree of certainty can be demanded. Id.;

Vista Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d

264, 273 (Tex.App.—Austin 2010, pet. denied). Nor do the

words of a statute fall short of providing a reasonable degree

of certainty because they are undefined. Vista Healthcare,

Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d at 273 (stating that

a “law is not unconstitutionally vague merely because it

does not define words or phrases”). Nor does the existence

of a dispute as to a law's meaning necessarily render the

provision unconstitutionally vague. Id. Again, the verbiage

need only provide a reasonable degree of certainty as to what

is proscribed. And, the test “is relaxed” when the conduct

being regulated is not normally considered constitutionally

protected. See Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d

362 (1982) (stating that “[t]he degree of vagueness that the

Constitution tolerates—as well as the relative importance

of fair notice and fair enforcement—depends in part on

the nature of the enactment. Thus, economic regulation is

subject to a less strict vagueness test because its subject

matter is often more narrow ....”); accord Commission for

Lawyer Discipline v. Benton, 980 S.W.2d at 437–38 (stating

that “[t]he vagueness doctrine requires different levels of

clarity depending on the nature of the law in question. Courts

demand less precision of statutes that impose only civil *138

penalties than of criminal statutes because their consequences

are less severe.”). 4

[11] [12] We also mention that this requirement for a

reasonable degree of certainty can be provided through

the use of ordinary terms having adequate interpretation in

common usage and understanding. Lindig v. City of Johnson

City, 2012 WL 5834855, at *4, 2012 Tex.App. LEXIS 9563,
Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

at *13 (stating that “the reasonable-certainty requirement

‘does not preclude the use of ordinary terms to express

ideas which find adequate interpretation in common usage

and understanding’ ”); Webster v. Signad, Inc., 682 S.W.2d

644, 647 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd

n.r.e). Simply put, where the statute fails to define pivotal

words contained therein, reference to their common usage and

understanding can supply the requisite certainty.

[13] [14] [15] [16] Also of note is that a law is not

automatically vague merely because difficulty is experienced

in determining whether certain marginal conduct falls within

its scope. Pennington v. Singleton, 606 S.W.2d at 689. This

is of import because in assessing whether a statute is void

for vagueness when First Amendment freedoms are not

implicated, we examine the matter “ ‘in light of the facts of

the case at hand.’ ” Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. at 495 n. 7, 102 S.Ct. 1186. In

such circumstances, a facial challenge has merit “only if the

enactment is impermissibly vague in all of its applications.”

Id. at 494–95, 102 S.Ct. 1186; accord In re Commitment

of Fisher, 164 S.W.3d 637, 654–55 (Tex.2005) (stating that

to “prevail on his facial vagueness challenge ... [one] bears

the heavy burden of showing that the Act is unconstitutional

in every possible application”). A complainant who engages

in some conduct that is clearly proscribed “cannot complain

of the vagueness of the law as applied to the conduct of

others.” Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. at 495, 102 S.Ct. 1186. “A court should therefore

examine the complainant's conduct before analyzing the other

hypothetical applications of the law.” Id.

Here, the trial court determined that the term “residential

area” had a “definite meaning that is objectively determinable

in its application.” Indeed, this conclusion appears supported

by various definitions of the term proffered by the City's

witnesses. For instance, the mayor testified it is a “geographic

area of houses in which people live” or a “geographic area

consisting primarily of homes where people live.” A city

council member testified that a residential area is “anywhere

there was a grouping of houses” or a “geographic area

primarily occupied by houses.” The city manager defined it

as an “area where people reside” or an area that “primarily

consists of houses” regardless of use. Common in each is the

notion that the area must generally consist of abodes wherein

people live.

To the foregoing, we add that the common meaning of

the term “residential” describes a location at which people

live. Indeed, it has been defined as a location “containing

mostly homes instead of stores [or] businesses,” “used as

a place to live,” or “of or relating to the places where

people live.” See MERRIAM–WEBSTER DICTIONARY,

http://merriam-webster.com (last visited Nov. 6, 2014). In

turn, “area” describes, in common parlance, “a part or

section within a larger place.” Id. When those definitions are

combined in the context *139 of the statute and ordinance at

issue, it is quite reasonable to construe the phrase “residential

area” to encompass, at the very least, a section of the city

wherein people primarily maintain homes and live. Stated

differently, it is reasonably certain that what constitutes a

“residential area” includes a neighborhood wherein people

primarily live and maintain homes. Admittedly, the margins

of the phrase may be difficult to determine. Whether they

would encompass an industrial region wherein one or two

people maintain a house is subject to reasonable debate. But,

again, we are to analyze the attack “ ‘in light of the facts of the

case at hand.’ ” And, the “facts at hand” do not depict such

an area.

Instead, the record shows that the Pak–a–Sak store in question

is surrounded by houses and people living in them. One need

only look at the pictures of the location and its neighbors

to see that. While some businesses (e.g., a beauty parlor, a

dog grooming business, and an auto mechanic shop) may be

operated within various of those homes, people still primarily

live within the neighboring environs of that Pak–a–Sak. 5

Given this, we have before us a circumstance encompassed by

a reasonable interpretation of what constitutes a “residential

area.” Selling beer from the Pak–a–Sak here would be

conduct clearly proscribed by the ordinance; it would be

conduct clearly within the common meaning of “residential

area,” that is, a section of the City wherein people primarily

maintain homes and live. So, we cannot say that the ordinance

has been shown to be vague in all of its applications as

required, and we overrule the issue before us given the

particular circumstances at bar.

Substantial Evidence

[17] Finally, Pak–a–Sak argues that “the City was required to

establish by substantial evidence that the location in question

met the requirements of the regulation it intended to enforce”

and that it “did not meet their burden of admitting substantial

evidence of Pak–a–Sak's location being within a ‘residential

area.’ ” We overrule this issue as well.
Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

[18] A decision has the support of substantial evidence when

the evidence of record, viewed as a whole, is such that

reasonable minds could have reached the same conclusion.

Texas Alcoholic Beverage Comm'n v. Sierra, 784 S.W.2d 359,

360 (Tex.1990); Melmat, Inc. v. Texas Alcoholic Beverage

Comm'n, 362 S.W.3d 211, 214 (Tex.App.—Dallas 2012,

no pet.); accord Texas Alcoholic Beverage Comm'n v. I

Gotcha, Inc., No. 07–05–0411–CV, 2006 WL 2095449, at

*2–3, 2006 Tex.App. LEXIS 6733, at *6–7 (Tex.App.—

Amarillo July 28, 2006, pet. denied) (mem.op.) (stating

that substantial evidence exists if the evidence is such that

reasonable minds could have reached the same conclusion).

And, the quantum of evidence need only be more than a

scintilla. Texas Alcoholic Beverage Comm'n v. I Gotcha, Inc.,

2006 WL 2095449, at *2, 2006 Tex.App. LEXIS 6733, at *6.

As we observed in our discussion of the issue immediately

preceding this one, the record contains more than a scintilla

of evidence illustrating that Pak–a–Sak was located in a

“residential area.” Consequently, the decision by the City of

Perryton to deny the permit has the support of substantial

evidence.

*140 Having rejected each issue proffered by Pak–a–Sak,

we affirm the order of the trial court.

All Citations

451 S.W.3d 133

Footnotes

1 There is no zoning in Perryton.

2 This occurred after a general election on May 11, 2013, in Ochiltree County permitting the sale of alcoholic beverages

3 Pak–a–Sak does not challenge § 109.32(a)(1) of the Beverage Code as unconstitutionally vague, only the ordinance.

4 Pak–a–Sak does not suggest that the opportunity to sell beer in Perryton, Texas, is of constitutional dimension.

5 At least one witness also described the neighborhood as primarily occupied by houses.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Perry v. S.N., 973 S.W.2d 301 (1998)

41 Tex. Sup. Ct. J. 1162

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973 S.W.2d 301

Supreme Court of Texas.

Douglas Wayne PERRY, Janise White,

and Raul Quintero, Petitioners,

v.

S.N. and S.N., individually and a/n/f of B.N., a

minor, and a/n/f of K.N., a minor, Respondents.

No. 97–0573. | Argued Jan.

7, 1998. | Decided July 3, 1998.

Parents, individually and as next friends of their children,

brought negligence action against friends of day care

providers for failing to report child abuse they allegedly

witnessed at day-care center. The 53rd Judicial District Court,

Travis County, Paul R. Davis, Jr., J., granted friends' motion

for summary judgment, and parents appealed. The Austin

Court of Appeals, 944 S.W.2d 728, reversed and remanded,

and friends petitioned for writ of error. The Supreme Court,

Phillips, C.J., held that violation of child abuse reporting

statute was not negligence per se.

Reversed and rendered.

Attorneys and Law Firms

*302 Gary E. Zausmer, Jeffrey Jury, Tom Tourtellotte,

Austin, for Petitioners.

Greg Reed, Lionel J. Roach, Austin, for Respondents.

Opinion

PHILLIPS, Chief Justice, delivered the opinion of the Court.

Respondents' motion for rehearing is overruled. Our opinion

of May 8, 1998, is withdrawn and the following is substituted

in its place.

This is a suit for injuries arising out of the abuse of children

at a day care center. Plaintiffs filed suit individually and as

next friends of their two children, alleging that defendants

witnessed the abuse and failed to report it to the police or

child welfare officials. The sole issue before us is whether

plaintiffs may maintain a cause of action for negligence per

se based on the Family Code, which requires any person

having cause to believe a child is being abused to report the

abuse to state authorities and makes the knowing failure to

do so a misdemeanor. See TEX. FAM.CODE §§ 261.101(a),

261.109 (formerly TEX. FAM.CODE §§ 34.01, 34.07). The

trial court granted summary judgment for defendants, but the

court of appeals reversed and remanded plaintiffs' negligence

per se and gross negligence claims for trial. Nash v. Perry,

944 S.W.2d 728 (Tex.App.—Austin 1997). We reverse the

judgment of the court of appeals and render judgment that

plaintiffs take nothing. Because plaintiffs did not preserve

their common law negligence claims, we do not decide

whether there should be a common law duty to report child

abuse in some circumstances.

B.N. and K.N. attended a day care center operated by Francis

Keller and her husband Daniel Keller from March 25, 1991,

to August 28, 1991. Their parents, S.N. and S.N., allege that

during that period, Daniel Keller regularly abused B.N. and

K.N. and other children at the center both physically and

sexually. Mr. and Mrs. N. brought suit against the Kellers and

three of the Kellers' friends, Douglas Perry, Janise White, and

Raul Quintero. Plaintiffs claim that Francis Keller confided

in White at an unspecified time that Daniel Keller had

“abusive habits toward children.” They further allege that

on one occasion in August 1991, while visiting the Kellers,

defendants Perry, White, and Quintero all saw Daniel Keller

bring a number of children out of the day care center into

the Kellers' adjoining home and sexually *303 abuse them.

The record does not indicate whether B.N. and K.N. were

among these children. According to plaintiffs, Perry, White,

and Quintero did not attempt to stop Daniel Keller from

abusing the children or report his crimes to the police or child

welfare authorities.

[1] Plaintiffs' brief filed in this Court alleges additional facts

that were not contained in their trial court pleadings. They

now assert that Perry pleaded guilty to indecency with a

child by contact and that White and Quintero were indicted

but not prosecuted for sex offenses involving the children at

the day care center. Plaintiffs' trial court petition, however,

did not allege that Perry, White, or Quintero participated in

abusing B.N. and K.N. or other children. We may not consider

factual assertions that appear solely in the appellate briefs and

not before the trial court. See Estate of Arrington v. Fields,

578 S.W.2d 173, 183 (Tex.Civ.App.—Tyler 1979, writ ref'd

n.r.e.).

Instead, Mr. and Mrs. N. alleged only that Perry, White, and

Quintero were negligent per se because they violated a statute

requiring any person who “has cause to believe that a child's

physical or mental health or welfare has been or may be
Perry v. S.N., 973 S.W.2d 301 (1998)

41 Tex. Sup. Ct. J. 1162

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adversely affected by abuse” to file a report with the police

or the Department of Protective and Regulatory Services.

TEX. FAM.CODE § 261.109(a). Plaintiffs also asserted

gross negligence and common law negligence claims. They

claimed that Perry, White, and Quintero's failure to report

the abuse proximately caused them harm by permitting the

day care center to remain open, thus enabling Daniel Keller

to continue abusing the children at the center. They sought

damages for pain, mental anguish, and medical expenses, as

well as loss of income when they could not work outside the

home because of B.N. and K.N.'s injuries.

[2] [3] Perry, White, and Quintero moved for summary

judgment on the sole ground that plaintiffs failed to state a

cause of action. None of the parties presented any summary

judgment evidence. A court may not grant summary judgment

for failure to state a cause of action without first giving the

plaintiff an opportunity to amend the pleadings. See Pietila

v. Crites, 851 S.W.2d 185, 186 n. 2 (Tex.1993). Before any

defendant moved for summary judgment, however, White

filed special exceptions arguing that plaintiffs had not stated

a cause of action, and plaintiffs subsequently amended their

petition. Although it appears from the record that Perry and

Quintero did not file special exceptions, their motions for

summary judgment were based solely on the grounds argued

in White's special exceptions. Thus, Mr. and Mrs. N. had a

fair opportunity to correct any deficiency in their pleadings.

[4] [5] The trial court granted Perry, White, and Quintero's

motions for summary judgment and severed plaintiffs' claims

against those three defendants from their suit against the

Kellers, which is not before us. Because defendants' motions

for summary judgment argued only that plaintiffs failed to

state a cognizable claim, the trial court's judgment can be

upheld, if at all, only on that ground. See McConnell v.

Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).

When the ground for the trial court's decision is that plaintiffs

failed to state a cause of action, we must take the allegations

in the pleadings as true in determining whether a cause of

action exists. See El Chico Corp. v. Poole, 732 S.W.2d 306,

309 (Tex.1987).

The court of appeals affirmed the summary judgment on

plaintiffs' common law negligence claims but reversed and

remanded for trial on the issues of negligence per se and gross

negligence, holding that a violation of the Family Code's

child abuse reporting requirement is negligence per se. 944

S.W.2d 728. Mr. and Mrs. N. have not appealed the court of

appeals' judgment affirming the summary judgment against

them on common law negligence. Therefore, the question of

whether Texas should impose a new common law duty to

report child abuse on the facts of this case is not before us. See

generally Golden Spread Council, Inc. v. Akins, 926 S.W.2d

287, 291–92 (Tex.1996); Butcher v. Scott, 906 S.W.2d 14,

15–16 (Tex.1995) (both refusing to recognize a common law

duty to report abuse under the circumstances of those cases);

Greater Houston *304 Transp. Co. v. Phillips, 801 S.W.2d

523, 525 (Tex.1990) (setting out factors for deciding whether

a common law duty should exist). We granted defendants'

application for writ of error to resolve the conflict between

the court of appeals' decision remanding the negligence per

se claims for trial and the decisions of three other courts

of appeals declining to permit tort liability for violation of

the statutory child abuse reporting requirement. See Marshall

v. First Baptist Church, 949 S.W.2d 504, 508 (Tex.App.—

Houston [14th Dist.] 1997, no writ); Childers v. A.S., 909

S.W.2d 282, 289–90 (Tex.App.—Fort Worth 1995, no writ);

Scott v. Butcher, 906 S.W.2d 16, 20–21 (Tex.App.—Tyler

1994), rev'd on other grounds, 906 S.W.2d 14 (Tex.1995).

1

[6] “It is fundamental that the existence of a legally

cognizable duty is a prerequisite to all tort liability.” Graff v.

Beard, 858 S.W.2d 918, 919 (Tex.1993). The court of appeals

found a duty in the following mandatory child abuse reporting

provisions of the Texas Family Code:

A person having cause to believe that

a child's physical or mental health or

welfare has been adversely affected by

abuse or neglect by any person shall

immediately make a report as provided

by this subchapter.

TEX. FAM.CODE § 261.101(a).

2

(a) A person commits an offense if the person has cause to

believe that a child's physical or mental health or welfare

has been or may be adversely affected by abuse or neglect

and knowingly fails to report as provided in this chapter.

(b) An offense under this section is a Class B

misdemeanor.

Id. § 261.109.

3

 The court concluded that these provisions

create a “statutory duty” to report child abuse, and that a

violation of this duty is negligence per se. See 944 S.W.2d

at 730.
Perry v. S.N., 973 S.W.2d 301 (1998)

41 Tex. Sup. Ct. J. 1162

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[7] All persons have a duty to obey the criminal law in

the sense that they may be prosecuted for not doing so, but

this is not equivalent to a duty in tort. See, e.g., Smith v.

Merritt, 940 S.W.2d 602, 607–08 (Tex.1997) (statute making

it a crime to furnish alcohol to persons under age 21 did not

impose a tort duty on social hosts). “It is well-established that

the mere fact that the Legislature adopts a criminal statute

does not mean that this court must accept it as a standard

for civil liability.” Carter v. William Sommerville & Son,

Inc., 584 S.W.2d 274, 278 (Tex.1979). “The considerations

which warrant imposing tort liability are not identical with

those which warrant criminal conviction,” Morris, The Role

of Criminal Statutes in Negligence Actions, 49 COLUM.

L.REV.. 21, 22–23 (1949), and we will not apply the doctrine

of negligence per se if the criminal statute does not provide

an appropriate basis for civil liability. 4See *305 Smith,

940 S.W.2d at 607; Rudes v. Gottschalk, 159 Tex. 552, 324

S.W.2d 201, 204–05 (1959); Phoenix Refining Co. v. Powell,

251 S.W.2d 892, 896 (Tex.Civ.App.—San Antonio 1952,

writ ref'd n.r.e.).

[8] Before we begin our analysis of whether section 261.109

of the Family Code is an appropriate basis for tort liability,

we emphasize that we must look beyond the facts of this

particular case to consider the full reach of the statute. We

do not decide today whether a statute criminalizing only the

type of egregious behavior with which these defendants are

charged—the failure of eyewitnesses to report the sexual

molestation of preschool children—would be an appropriate

basis for a tort action. That is not the statute the Legislature

passed. Rather, the issue before us is whether it is appropriate

to impose tort liability on any and every person who

“has cause to believe that a child's physical or mental

health or welfare has been or may be adversely affected

by abuse or neglect and knowingly fails to report.” TEX.

FAM.CODE § 261.109(a). Cf. Leonard, The Application of

Criminal Legislation to Negligence Cases: A Reexamination,

23 SANTA CLARA L.REV. 427, 457–66 (1983) (contrasting

the rigidity of statutory standards with the flexibility of caseby-case common law determinations of duty and breach).

[9] The threshold questions in every negligence per se case

are whether the plaintiff belongs to the class that the statute

was intended to protect and whether the plaintiff's injury is of

a type that the statute was designed to prevent. See Moughon

v. Wolf, 576 S.W.2d 603, 604 (Tex.1978); East Tex. Motor

Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 615

(1949); Missouri, K & T. Ry. v. Saunders, 101 Tex. 255,

106 S.W. 321, 321–23 (1908); RESTATEMENT (SECOND)

OF TORTS §§ 286, 288. Texas's first mandatory child abuse

reporting statute, from which Family Code section 261.101(a)

is derived, stated that “[t]he purpose of this Act is to protect

children who [ ] ... are adversely affected by abuse or neglect.”

Act of May 24, 1971, 62d Leg., R.S., ch. 902, § 1, 1971

Tex. Gen. Laws 2790. Similarly, the current Family Code

provision governing the investigation of reports of child abuse

states that “[t]he primary purpose of the investigation shall be

the protection of the child.” TEX. FAM.CODE § 261.301(d).

[10] B.N. and K.N. are within the class of persons whom

the child abuse reporting statute was meant to protect, and

they suffered the kind of injury that the Legislature intended

the statute to prevent. 5 But this does not end our inquiry.

See Praesel v. Johnson, 967 S.W.2d 391, 395 (Tex.1998).

The Court must still determine whether it is appropriate to

impose tort liability for violations of the statute. See Smith,

940 S.W.2d at 607–08. This determination is informed by a

number of factors, some discussed by the court of appeals

in this case and others derived from past negligence per se

decisions of Texas courts and from scholarly analyses. *306

These factors are not necessarily exclusive, nor is the issue

properly resolved by merely counting how many factors lean

each way. Rather, we set out these considerations as guides to

assist a court in answering the ultimate question of whether

imposing tort liability for violations of a criminal statute is

fair, workable, and wise.

[11] We first consider the fact that, absent a change in the

common law, a negligence per se cause of action against

these defendants would derive the element of duty solely from

the Family Code. At common law there is generally no duty

to protect another from the criminal acts of a third party or

to come to the aid of another in distress. See Butcher, 906

S.W.2d at 15; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307,

309 (Tex.1983). Although there are exceptions to this no-duty

rule, see, e.g., Lefmark Management Co. v. Old, 946 S.W.2d

52, 53 (Tex.1997) (noting that under some circumstances,

person in control of premises has duty to protect invitees from

crime), this case does not fall within any of the established

exceptions, and Mr. and Mrs. N. have not asked this Court

to impose on persons who are aware of child abuse a new

common law duty to report it or take other protective action.

[12] In contrast, the defendant in most negligence per se

cases already owes the plaintiff a pre-existing common law

duty to act as a reasonably prudent person, so that the statute's

role is merely to define more precisely what conduct breaches

that duty. See Rudes, 324 S.W.2d at 204 (“We adopt the
Perry v. S.N., 973 S.W.2d 301 (1998)

41 Tex. Sup. Ct. J. 1162

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statutory test rather than that of the ordinarily prudent man as

the more accurate one to determine negligence ....”); see also

Moughon, 576 S.W.2d at 604; RESTATEMENT (SECOND)

OF TORTS § 286 (1965) (both defining negligence per

se as the judicial adoption of a statute to define the

standard of conduct of a reasonable person). For example,

the overwhelming majority of this Court's negligence per se

cases have involved violations of traffic statutes by drivers

and train operators—actors who already owed a common

law duty to exercise reasonable care toward others on the

road or track. See, e.g., Murray v. O & A Express, Inc.,

630 S.W.2d 633 (Tex.1982); Impson v. Structural Metals,

Inc., 487 S.W.2d 694 (Tex.1972); Missouri–Kansas–Texas

R.R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956);

Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982

(1941); Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039

(1936); Lancaster & Wight v. Allen, 110 Tex. 213, 217 S.W.

1032 (1920); Missouri, K & T. Ry. Co. v. Saunders, 101 Tex.

255, 106 S.W. 321 (1908); San Antonio & A.P. Ry. Co. v.

Bowles, 88 Tex. 634, 32 S.W. 880 (1895).

When a statute criminalizes conduct that is also governed by

a common law duty, as in the case of a traffic regulation,

applying negligence per se causes no great change in the

law because violating the statutory standard of conduct

would usually also be negligence under a common law

reasonableness standard. See Praesel, 967 S.W.2d at 395;

Parrott v. Garcia, 436 S.W.2d 897, 900 (Tex.1969); Rudes,

324 S.W.2d at 204; Morris, The Role of Criminal Statutes

in Negligence Actions, 49 COLUM. L.REV.. 21, 34 (1949).

But recognizing a new, purely statutory duty “can have an

extreme effect upon the common law of negligence” when it

allows a cause of action where the common law would not.

See Leonard, 23 SANTA CLARA L.REV. at 449 n. 92. In

such a situation, applying negligence per se “bring[s] into

existence a new type of tort liability.” Burnette v. Wahl, 284

Or. 705, 588 P.2d 1105, 1109 (1978). The change tends to

be especially great when, as here, the statute criminalizes

inaction rather than action. See generally Otis Eng'g, 668

S.W.2d at 309; 3 HARPER ET AL., THE LAW OF

TORTS § 18.6 (2d ed.1986); KEETON ET AL., PROSSER

& KEETON ON THE LAW OF TORTS § 56, at 373–77

(5th ed.1984); Thayer, Public Wrong and Private Action, 27

HARV. L.REV.. 317 (1914) (all discussing traditional tort

law distinction between misfeasance and nonfeasance).

Some commentators contend that the term “negligence per

se” does not even apply when the statute on which civil

liability is based corresponds to no common law duty. See

KEETON ET AL. § 36, at 221 n. 9; Forell, The Statutory

Duty Action in Tort: A Statutory/Common Law Hybrid, 23

IND. L.REV. 781, 782 (1990). While our definition has never

been so restrictive, this Court in fact *307 has created a new

duty by applying negligence per se on only one occasion.

In Nixon v. Mr. Property Management Co., 690 S.W.2d

546, 549 (Tex.1985), a third party dragged the plaintiff into

an unlocked vacant apartment owned by the defendant and

raped her. Because the plaintiff was a trespasser according

to traditional premises liability categories, the defendant

landowner owed her no common law duty. See id. at 548.

Although two members of this Court would have recognized a

new common law duty of reasonable care toward trespassers,

at least in certain cases, see id. at 551–54 (Kilgarlin, J.,

concurring); id. at 554 (Spears, J., concurring), a plurality

instead found a duty only in a city ordinance requiring

landowners to keep vacant buildings locked. See id. at 549.

But in our next major negligence per se case, El Chico Corp.

v. Poole, we returned to the norm of deriving duty from the

common law and looking to the statute only for the standard of

conduct. Only after we created a new common law duty not to

sell alcohol to intoxicated persons, see El Chico, 732 S.W.2d

at 309–12, did we adopt a relevant section of the Alcoholic

Beverage Code as “the attendant standard of conduct.” Id.

at 312–13. Thus, based on both this Court's past practice

and the observations of noted scholars, we conclude that the

absence of a relevant common law duty should be considered

in deciding whether to apply negligence per se to the Family

Code's reporting provision.

The court of appeals in this case listed several factors to

consider in deciding whether to apply negligence per se. See

944 S.W.2d at 730 (citing Ratliff, Comment, Negligence Per

Se in Texas, 41 TEX. L.REV. 104, 106 (1962)). According to

the court of appeals, the principal factors favoring negligence

per se are that the Legislature has determined that compliance

with criminal statutes is practicable and desirable and that

criminal statutes give citizens notice of what conduct is

required of them. See id. As considerations against negligence

per se, the court of appeals cautioned that some penal statutes

may be too obscure to put the public on notice, may impose

liability without fault, or may lead to ruinous monetary

liability for relatively minor offenses. See id. The first of

these factors is not helpful because it points the same way in

every case: the very existence of a criminal statute implies a

legislative judgment that its requirements are practicable and

desirable. The court of appeals' remaining factors, however,

are pertinent to our analysis.
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On the question of notice, this Court has held that one

consideration bearing on whether to apply negligence per se is

whether the statute clearly defines the prohibited or required

conduct. See Praesel, 967 S.W.2d at 395; Carter, 584

S.W.2d at 278; RESTATEMENT (SECOND) OF TORTS §

874A cmt. h(1). The Family Code's reporting requirement

is triggered when a person “has cause to believe that a

child's physical or mental health or welfare has been or

may be adversely affected by abuse or neglect.” TEX.

FAM.CODE § 261.109(a). In this case, defendants allegedly

were eyewitnesses to sexual abuse. Under these facts, there

is no question that they had cause to believe abuse was

occurring, and thus that the statute required them to make a

report. In many other cases, however, a person may become

aware of a possible case of child abuse only through secondhand reports or ambiguous physical symptoms, and it is

unclear whether these circumstances are “cause to believe”

that such conduct “may be” taking place. 6See Scott, 906

S.W.2d at 20. A statute that conditions the requirement to

report on these difficult judgment calls does not clearly

define *308 what conduct is required in many conceivable

situations. 7

The next factor the court of appeals considered was whether

applying negligence per se to the reporting statute would

create liability without fault. See 944 S.W.2d at 730. We agree

with the court of appeals that it would not, because the statute

criminalizes only the “knowing[ ]” failure to report. 8See

id.; see also El Chico, 732 S.W.2d at 313 (holding under a

similarly worded statute that “a liquor licensee is negligent

as a matter of law under the statute when he knowingly sells

an alcoholic beverage to an intoxicated person” (emphasis

added)). This characteristic of the statute weighs in favor of

imposing civil liability.

Our next consideration is whether negligence per se would

impose ruinous liability disproportionate to the seriousness

of the defendant's conduct. In analyzing this factor, the court

of appeals treated child abuse as the relevant conduct. See

944 S.W.2d at 730 (“[T]he abuse of children has become

notorious.”). The conduct criminalized by section 261.109,

however, is not child abuse but the failure to report child

abuse. Through its penal laws, the Legislature has expressed a

judgment that abuse and nonreporting deserve very different

legal consequences. The abuser in this case committed the

offense of aggravated sexual assault on a child under the

age of fourteen, a first degree felony carrying a penalty

of five to ninety-nine years in prison and a fine of up to

$10,000. See TEX. PEN.CODE §§ 22.021, 12.32. Almost

all of the other acts of abuse and neglect covered by the

reporting requirement, see TEX. FAM.CODE § 261.001(1),

(4) (defining “abuse” and “neglect”), are also felonies. See

TEX. PEN.CODE § 22.04 (injury to a child); id. § 22.041

(abandoning or endangering child); id. § 22.011(a)(2), (f)

(statutory rape). Even the lowest level of felony is punishable

by 180 days to two years in jail and a $10,000 fine, see id.

§ 12.35, and automatically deprives the offender of certain

civil rights such as the franchise, see TEX. ELEC.CODE §

13.001(a)(4), eligibility for public office, see id. § 141.001(a)

(4), and the right to own a firearm, see TEX. PEN.CODE

§ 46.04(a). By contrast, failure to report abuse or neglect,

no matter how serious the underlying crime, is a class B

misdemeanor punishable by no more than six months in jail

and a $2,000 fine. See TEX. FAM.CODE § 261.109(b); TEX.

PEN.CODE § 12.22. This evidence of legislative intent to

penalize nonreporters far less severely than abusers weighs

against holding a person who fails to report suspected abuse

civilly liable for the enormous damages that the abuser

subsequently inflicts. The specter of disproportionate liability

is particularly troubling when, as in the case of the reporting

statute, it is combined with the likelihood of “broad and

wide-ranging liability” by collateral wrongdoers that we

condemned in Carter v. William Sommerville & Son, Inc., 584

S.W.2d at 279.

Finally, in addition to the factors discussed by the court of

appeals, we have also looked to whether the injury resulted

directly or indirectly from the violation of the statute. See

Praesel, 967 S.W.2d at 395. In Carter v. William Sommerville

& Son, Inc., we refused to apply negligence per se liability

to a provision of the Texas Motor Carrier Act making it a

misdemeanor to aid and abet any violation of the Act. See

Carter, 584 S.W.2d at 278–79. We concluded that the aiding

and abetting section was “too far removed to be adopted as

a standard” for civil liability, in part because “[i]t is only by

first finding a violation of some other section of the Act that

the court may then find a violation” of that *309 provision.

Carter, 584 S.W.2d at 279. Like the aiding and abetting

provision in Carter, Family Code section 261.109 defines the

misdemeanor of failure to report child abuse in terms of the

wrongful act of a third party. Under Carter 's reasoning, the

indirect relationship between violation of such a statute and

the plaintiff's ultimate injury is a factor against imposing tort

liability.

The lack of direct causation is not in itself dispositive; we

have imposed civil liability for some statutory violations

that caused the plaintiff's injury by facilitating the tort of
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a third party. See El Chico, 732 S.W.2d at 312–13 (statute

prohibiting sale of alcohol to intoxicated person); Nixon,

690 S.W.2d at 548–49 (building ordinance requiring security

measures). But a reporting statute by definition places a fourth

party between the defendant and the plaintiff: the person or

agency to whom the defendant is required to make the report.

Thus, the connection between the defendant's conduct and

the plaintiff's injury is significantly more attenuated in a case

based on failure to report than in Nixon or El Chico. We

are not aware of any Texas case applying negligence per

se to a statute that, like the child abuse reporting provision,

interposes not one but two independent actors between the

plaintiff and the defendant.

We conclude by noting that for a variety of reasons,

including many of those we have discussed, most other

states with mandatory reporting statutes similar to Texas's

have concluded that the failure to report child abuse is

not negligence per se. See C.B. v. Bobo, 659 So.2d 98,

102 (Ala.1995); Fischer v. Metcalf, 543 So.2d 785, 790–

91 (Fla.Dist.Ct.App.1989); Cechman v. Travis, 202 Ga.App.

255, 414 S.E.2d 282, 284 (1991); Borne v. Northwest

Allen County Sch. Corp., 532 N.E.2d 1196, 1202–03

(Ind.Ct.App.1989); Kansas State Bank & Trust Co. v.

Specialized Transp. Servs., Inc., 249 Kan. 348, 819 P.2d

587, 604 (1991); Valtakis v. Putnam, 504 N.W.2d 264, 266

(Minn.Ct.App.1993); Bradley v. Ray, 904 S.W.2d 302, 312–

14 (Mo.Ct.App.1995); Marquay v. Eno, 139 N.H. 708, 662

A.2d 272, 276–78 (1995). But see Landeros v. Flood, 17

Cal.3d 399, 131 Cal.Rptr. 69, 551 P.2d 389, 396–97 (1976);

Curran v. Walsh Jesuit High Sch., 99 Ohio App.3d 696, 651

N.E.2d 1028, 1030 (1995); Doe v. Coffee County Bd. of Educ.,

852 S.W.2d 899, 909 (Tenn.Ct.App.1992).

In summary, we have considered the following factors

regarding the application of negligence per se to the Family

Code's child abuse reporting provision: (1) whether the statute

is the sole source of any tort duty from the defendant to

the plaintiff or merely supplies a standard of conduct for an

existing common law duty; (2) whether the statute puts the

public on notice by clearly defining the required conduct; (3)

whether the statute would impose liability without fault; (4)

whether negligence per se would result in ruinous damages

disproportionate to the seriousness of the statutory violation,

particularly if the liability would fall on a broad and wide

range of collateral wrongdoers; and (5) whether the plaintiff's

injury is a direct or indirect result of the violation of the

statute. Because a decision to impose negligence per se could

not be limited to cases charging serious misconduct like

the one at bar, but rather would impose immense potential

liability under an ill-defined standard on a broad class of

individuals whose relationship to the abuse was extremely

indirect, we hold that it is not appropriate to adopt Family

Code section 261.109(a) as establishing a duty and standard

of conduct in tort. Therefore, Mr. and Mrs. N. and their

children may not maintain a claim for negligence per se or

gross negligence based on defendants' violation of the child

abuse reporting statute. Because plaintiffs did not appeal

the court of appeals' adverse decision on their common law

negligence claims, we do not consider whether Texas should

impose a common law duty to report or prevent child abuse.

For the foregoing reasons, we reverse the judgment of the

court of appeals and render judgment that plaintiffs take

nothing.

All Citations

973 S.W.2d 301, 41 Tex. Sup. Ct. J. 1162

Footnotes

1 This Court was unable to address the negligence per se issue in Butcher for jurisdictional reasons. See Butcher v. Scott,

906 S.W.2d 14, 16 (Tex.1995). This case thus presents our first opportunity to consider this question.

2 This mandatory reporting statute was enacted in 1971. See Act of May 24, 1971, 62d Leg., R.S., ch. 902, § 1, 1971 Tex.

Gen. Laws 2790, 2791. Prior to that time, Texas did not require the reporting of child abuse, although there were statutes

granting immunity from suit to doctors and other professionals who chose to report cases of suspected abuse. See Act

of April 26, 1965, 59th Leg., R.S., ch. 117, 1965 Tex. Gen. Laws 277 (physicians); Act of May 5, 1969, 61st Leg., R.S.,

ch. 219, 1969 Tex. Gen. Laws 637 (other professionals).

The version of this provision in force at the time of the events in this case read “has been or may be adversely affected.”

See 944 S.W.2d at 729 (quoting former TEX. FAM.CODE § 34.01(a)) (emphasis added). The Legislature deleted the

italicized language in 1997. See Act of Sept. 1, 1997, 75th Leg., R.S., ch. 1022, § 65, 1997 Tex. Gen. Laws 3733,

3760. However, the phrase “or may be” remains in the current version of § 261.109(a).
Perry v. S.N., 973 S.W.2d 301 (1998)

41 Tex. Sup. Ct. J. 1162

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

3 This provision criminalizing the failure to report was added in 1973. See Act of May 17, 1973, 63d Leg., R.S., ch. 398,

§ 1, 1973 Tex. Gen. Laws 881.

4 At times, our opinions have included language suggesting that any statutory violation is automatically negligence per se.

See, e.g., Southern Pac. Co. v. Castro, 493 S.W.2d 491, 497 (Tex.1973) (stating that to prove negligence per se, one

must prove the unexcused violation of a penal standard). Yet these same opinions recognize the Restatement of Torts

as the law of Texas on negligence per se, and the Restatement expressly states that the adoption of criminal statutes

into tort law is a matter of judicial discretion: “The correct rule is ...: ‘The unexcused violation of a legislative enactment

or an administrative regulation which is adopted by the court as defining the standard of conduct of the reasonable man,

is negligence in itself.’ ” Southern Pac., 493 S.W.2d at 497 (emphasis added)(quoting RESTATEMENT (SECOND) OF

TORTS § 288B (1965)); see also RESTATEMENT (SECOND) OF TORTS § 286 (1965) (“The court may adopt as the

standard of conduct of a reasonable man the requirements of a legislative enactment ....”) (emphasis added); id. cmt.

d (“Since the legislation has not so provided, the court is under no compulsion to accept it as defining any standard of

conduct for purposes of a tort action.”).

5 A few courts in other jurisdictions have interpreted mandatory reporting statutes as intended to protect only the specific

child the defendant suspects is being abused, not other potential victims of the same abuser. See Curran v. Walsh

Jesuit High School, 99 Ohio App.3d 696, 651 N.E.2d 1028, 1030–31 (1995); Marcelletti v. Bathani, 198 Mich.App. 655,

500 N.W.2d 124, 127 (1993). It is unclear from the pleadings whether B.N. and K.N. were among the children whom

defendants saw being abused. But whether or not Curran and Marcelletti 's analysis applies to the Texas reporting statute,

B.N. and K.N. are within the protected class on the facts of this case. According to the pleadings, defendants saw Daniel

Keller take some of the children enrolled in the day care center out of the center into an adjoining room of the Kellers' home

and sexually abuse them. This gave defendants “cause to believe” that the “physical or mental health or welfare” of all the

children attending the day care center—not only the particular children they saw being abused on that occasion—“may

be adversely affected by abuse or neglect.” See TEX. FAM.CODE § 261.109(a). Thus, the statute required defendants

to make a report concerning all the children at the center.

6 Determining whether abuse is or may be occurring in a particular case is likely to be especially difficult for untrained

laypersons. Texas is one of a minority of states that require any person who suspects child abuse to report it. See O'Brien

& Flannery, The Pending Gauntlet to Free Exercise: Mandating that Clergy Report Child Abuse, 25 LOY. L.A. L.REV. .

1, 24–25 & n. 127 (1991) (collecting statutes). Most states place such a requirement only on professionals who may be

expected to know more than the average person about recognizing child abuse and who have a professional relationship

with and responsibility for children. See id. at 19 n. 106 (collecting statutes); id. at 24. The Texas Family Code contains a

separate mandatory reporting provision, not relevant here, specifically directed to members of certain professions. See

TEX. FAM.CODE § 261.101(b).

7 We do not mean to suggest that section 261.109 is unconstitutionally vague. In fact, one court of appeals has already

rejected an as-applied vagueness challenge to this provision. See Morris v. State, 833 S.W.2d 624, 627 (Tex.App.—

Houston [14th Dist.] 1992, pet. ref'd), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993). A statute's lack

of clarity need not rise to a constitutionally suspect level in order to be a factor in our determination of whether imposing

negligence per se is appropriate.

8 Although the issue of strict liability is related to the problem of notice, see Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), a statute may require scienter and yet fail to

define clearly the prohibited conduct. Cf. Long v. State, 931 S.W.2d 285, 289 (Tex.Crim.App.1996).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

215 S.W.3d 559

Court of Appeals of Texas,

Austin.

RAILROAD COMMISSION OF TEXAS and

Dos Republicas Resources Co., Inc., Appellants,

v.

Theodosia COPPOCK, Juanita Alvarado,

Guadalupe Davila, and Kickapoo

Traditional Tribe of Texas, Appellees.

No. 03–05–00097–CV. | Feb. 1, 2007.

Synopsis

Background: Neighboring landowners appealed Railroad

Commission's decision to extend coal mining company's

surface coal mining permit. The 201st Judicial District Court,

Travis County, Scott H. Jenkins, J., entered judgment for

landowners. Commission and company appealed.

Holdings: The Court of Appeals, David Puryear, J., held that:

[1] Commission had the authority to grant company's request

for a permit extension, even though three-year deadline had

expired, and

[2] company could obtain permit extension due to

unfavorable market conditions beyond the control of and

without the fault or negligence of the company.

Reversed and remanded.

Attorneys and Law Firms

*560 Chesley N. Blevins, Rebecca L. Fink, Lloyd Gosselink

Blevins Rochelle & Townsend, P.C., Nathan M. Bigbee,

Assistant Attorney General, Natural Resources Division,

Austin, for appellants.

Enrique Valdivia, Texas RioGrande Legal Aid, San Antonio,

David O. Frederick, Lowere & Frederick, John G. Soule,

Scott Douglass & McConnico, L.L.P., Austin, for appellees.

Before Justices PATTERSON, PURYEAR and SMITH. *

*561 OPINION

DAVID PURYEAR, Justice.

Our opinion and judgment issued on December 29, 2006, are

withdrawn, and the following opinion is substituted.

Dos Republicas Resources Co., Inc. (“Dos Republicas”)

asked the Railroad Commission of Texas (the “Commission”)

to extend its surface coal mining permit under the provisions

of the Texas Surface Coal Mining and Reclamation Act

codified in the natural resources code, but Theodosia

Coppock, Juanita Alvarado, Guadalupe Davila, and Kickapoo

Traditional Tribe of Texas (the “appellees”) opposed the

extension. Ultimately, the Commission granted the extension,

and the appellees appealed the Commission's decision. The

district court concluded that the Commission's basis for

granting the extension, namely the lack of a market for

Dos Republicas to sell its coal, was not authorized under

the natural resources code. See Tex. Nat. Res.Code Ann. §

134.072 (West 2001). Dos Republicas and the Commission

appeal the district court's judgment, and we will reverse the

court's judgment.

BACKGROUND

In 1992, Dos Republicas applied to the Commission for a

permit to allow it to engage in coal mining on a 2700–acre

tract in Eagle Pass, Texas, and the Commission approved the

permit in 1994. However, Dos Republicas did not request that

the permit be issued at that time.

For years, Dos Republicas attempted to enter into an

agreement to sell its coal to the Comision Federal de

Electricidad (“CFE”), a state-owned electricity provider in

Mexico that operates two coal-fired plants near Eagle Pass.

In 1999, CFE became concerned about the financial security

of the mining company that had been its coal supplier. As

a result, it alerted Dos Republicas that, in early 2000, it

would be issuing a request for proposals asking companies

to submit bids offering to supply CFE with coal and asked

Dos Republicas to issue a bid. To ensure that it would

have a supply when necessary, Dos Republicas asked the

Commission to issue the permit it had previously approved,

and the Commission issued the permit in April 2000.
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

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Due to a number of political changes and pressure from

various interested parties, CFE never issued its request for

proposals. Employees from mines in Mexico complained that

importing coal from Texas might eliminate their jobs. In

addition, during this time, the governing political party in

Mexico changed, and the leaders of CFE were replaced.

Dos Republicas continued its efforts to enter into an

agreement with CFE, and, in 2001, CFE again indicated

that it would issue a request for proposals. However, as had

happened previously, no request was ever issued. Instead,

CFE entered into a long-term supply contract with a Mexican

mining company, Coahuila Industrial Minera (“Coahuila”).

Prior to and after CFE entered into a contract with Coahuila,

Dos Republicas unsuccessfully attempted to find other market

options for selling its coal. Even though Dos Republicas

asked the Commission to issue it a mining permit, it never

began mining coal at the Eagle Pass mine and, eventually,

filed an application with the Commission seeking to terminate

its permit. Although Dos Republicas asked that its permit be

terminated, the natural resources code also contains an early

termination provision mandating that a mining permit will

expire within three years of *562 its issuance if the permit

holder has not begun “surface coal mining” operations by that

date. Tex. Nat. Res.Code Ann. § 134.072(a); 1see also id. §

134.004(20) (West 2001) (definition of “surface coal mining

operations”). Dos Republicas filed its application to terminate

its permit shortly before the three-year termination date.

Just before the three-year termination deadline passed,

Coahuila contacted Dos Republicas and indicated that it was

interested in purchasing the Eagle Pass mining operation.

Consequently, Dos Republicas filed a request to withdraw its

application to terminate the permit and also filed a request to

extend its permit beyond the three-year deadline. The natural

resources code allows the Commission to grant “reasonable

extensions” if it is shown that the extensions are necessary

because of:

(1) litigation that precludes the beginning of operations or

threatens substantial economic loss to the permit holder; or

(2) conditions beyond the control and without the fault or

negligence of the permit holder.

Id. § 134.072(b). 2

The Commission referred the matter to a hearings examiner.

Coppock, a landowner near the Eagle Pass property,

opposed the extension. 3 She claimed that, because the

three-year deadline had passed by the time of the hearing,

the Commission had no authority to grant an extension.

Alternatively, she argued that the Commission should

deny the extension because the conditions allowing for

an extension found in section 134.072 were not satisfied.

Specifically, she asserted that the absence of a market in

which Dos Republicas could sell its coal could not justify an

extension.

The hearing examiner concluded that the Commission had

jurisdiction to consider the request for an extension because

the request for an extension was filed prior to the three-year

deadline. Further, she concluded that the Commission should

grant the extension because Dos Republicas's failure to begin

mining was due to *563 the absence of a market for the

coal and that the market condition was “beyond the control

and without the fault or negligence” of Dos Republicas. The

Commission adopted the examiner's proposal for decision and

granted the extension.

The appellees appealed the Commission's order to the

district court. See Tex. Gov't Code Ann. § 2001.171 (West

2000) (person who has exhausted all administrative remedies

and is aggrieved by final agency decision is entitled to

judicial review). In its judgment, the district court concluded

that the Commission had jurisdiction over the extension

request because the Commission has authority over a

request as long as it is filed within three years of the

permit's issuance. However, the court also concluded that

“[s]ubsection 134.072(b) does not authorize the Commission

to grant an extension based upon the absence of a market or

other economic, political, or social conditions that are beyond

the control of and without the fault or negligence of the

permit holder.” Dos Republicas and the Commission appeal

the district court's judgment.

STANDARD OF REVIEW

In addressing the issues raised in this appeal by the

appellants and the appellees, we must necessarily construe the

relevant provisions of the natural resources code. Statutory

construction is a question of law, which we review de novo.

State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). In

determining the meaning of a statute, our primary purpose

is to determine the legislature's intent when enacting the

statute, and we begin with the language used in the statute. Id.

Every word in a statute is presumed to have been used for a
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

purpose and every word excluded is presumed to have been

excluded for a purpose. Laidlaw Waste Sys., Inc. v. City of

Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Further, we look

to the entire act and do not look at a single provision isolated

from the remainder of the act. Watts v. City of Houston,

126 S.W.3d 97, 100 (Tex.App.-Houston [1st Dist.] 2003, no

pet.); see also Tex. Gov't Code Ann. § 311.021(2) (West

2005) (presume that entire statute was meant to be effective).

We should not adopt a construction of a statute that will

render the statute meaningless or lead to absurd results. See

Watts, 126 S.W.3d at 100; see also Tex. Gov't Code Ann. §

311.021(3) (West 2005) (in construing statutes, we presume

that just and reasonable result was intended). Finally, the

construction of a statute by the administrative agency charged

with its enforcement is entitled to serious consideration so

long as the construction is reasonable and does not contradict

the plain language of the statute. Tarrant Appraisal Dist. v.

Moore, 845 S.W.2d 820, 823 (Tex.1993); Anderson–Clayton

Bros. Funeral Home, Inc. v. Strayhorn, 149 S.W.3d 166,

178 (Tex.App.-Austin 2004, pet. denied) (even if there are

other reasonable interpretations, we will accept agency's

construction of statute if it is consistent with language

and purpose of statute); see also Tex. Gov't Code Ann. §

311.023(6) (West 2005) (in construing statutes, courts may

consider administrative construction of statute regardless of

whether statute is considered ambiguous). This is particularly

true when the statute involves a complex subject matter.

Buddy Gregg Motor Homes v. Motor Vehicle Bd., 156 S.W.3d

91, 99 (Tex.App.-Austin 2004, pet. denied). However, for

nontechnical questions of law and other questions not lying

within an agency's expertise, courts do not defer to an

agency's interpretation. Id.

DISCUSSION

On appeal, the Commission and Dos Republicas contend that

the district court erred when it reversed the Commission's

*564 order granting Dos Republicas's extension because

the extension was authorized by the natural resources code.

In response, the appellees assert that the extension was

not authorized by statute and that the Commission did not

have the authority to grant the extension after the three-year

deadline.

The Commission Possessed Authority to Address Dos

Republicas's Extension Request

[1] On appeal, the appellees assert that the Commission

lacked the authority to grant the permit extension because

the three-year deadline specified in the statute had expired.

Before we address this issue, we note that there is some

question about whether the appellees may make this crossclaim without first filing a notice of appeal. The Commission

and Dos Republicas contend that the appellees may not

bring this cross-claim on appeal because they failed to file

a notice of appeal. See Tex.R.App. P. 25.1 (party who seeks

to alter trial court's judgment must file notice of appeal),

26.1 (specifying deadlines for filing notices of appeal). The

appellees, on the other hand, insist that this issue may be

considered on appeal. Specifically, they assert that it was

unnecessary for them to file a notice of appeal because they

are not seeking more favorable relief than that granted by

the district court. See First Gen. Realty Corp. v. Maryland

Cas. Co., 981 S.W.2d 495, 503 (Tex.App.-Austin 1998, pet.

denied) (because appellees' arguments did not ask for relief

greater than that granted by trial court, appellees were not

required to file notice of appeal). Rather, they argue that they

are simply seeking to affirm the final judgment of the district

court and that they raise this issue merely as an alternative

ground for affirming the district court's judgment. See Helton

v. Railroad Comm'n, 126 S.W.3d 111, 119–20 (Tex.App.-

Houston [1st Dist.] 2003, pet. denied) (noting distinction

between cross-points that require separate notice of appeal

and claims that merely seek to raise alternate grounds

opposing recovery by appealing party). In the interests of

justice, we will address their argument.

[2] The appellees insist that Dos Republicas's permit

terminated automatically on April 11, 2003, because Dos

Republicas had not commenced surface mining and had not

obtained an extension by that date. In support of this assertion,

the appellees contend that nothing in the natural resources

code provides that requesting an extension within the threeyear deadline will toll the termination deadline or allows for

a conditional extension pending a final determination by the

Commission. In response, the Commission argues that it may

grant an extension request after the three-year deadline as

long as the request was filed within the three-year cutoff.

The Commission's interpretation of the statute is consistent

with the language of the statute. Nothing in the natural

resources code necessitates that the Commission rule on an

extension request before the three-year deadline passes in

order for the extension to be effective. See Tex. Nat. Res.Code

Ann. § 134.072. The lack of a Commission deadline for

issuing its decision is instructive given that the code provides
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

specific deadlines for agency action in other contexts. For

example, section 134.080 of the code mandates that the

Commission issue a decision regarding a permit revision filed

by a permit holder within 90 days of receiving the application

for revision. See id. § 134.080 (West 2001); see also Tex.

Gov't Code Ann. § 2001.146(c) (West 2000) (agency must act

on motion for rehearing within 45 days or motion is overruled

by operation of law).

*565 Moreover, the code does not mandate that a permit

holder file an extension request within a given time prior

to the termination date in order to allow the Commission to

fully consider the request. The lack of a specific deadline by

which a permit holder must file a request is noteworthy when

looking at other code provisions. The section concerning

permit renewals explicitly provides a deadline by which an

applicant must file a permit renewal application that is prior

to the permit expiration date. Specifically, section 134.078

provides as follows:

Application for permit renewal must

be made not later than the 120th day

before the date the existing permit

expires.

Tex. Nat. Res.Code Ann. § 134.078 (West 2001); see also

16 Tex. Admin. Code § 12.106(b)(2) (2006) (requiring

permit holder to file permit renewal 180 days before permit

expires), (b)(3) (2006) (requiring permit holder to file permit

revision application 180 days before it expects to revise its

operations). The absence of a similarly worded deadline in the

extension context supports the Commission's interpretation,

which allows for the filing of an extension request up to the

three-year termination deadline. See Laidlaw Waste Sys., Inc.,

904 S.W.2d at 659 (presume that every word omitted was

purposefully excluded).

Furthermore, if the appellees' interpretation of the statute

were correct, applicants would have the onerous task of

estimating how far in advance they would need to file an

extension request in order to allow the Commission time

to fully review the application and issue its decision prior

to the expiration of the three-year deadline. In addition,

the appellees' construction would effectively eliminate

extensions for events occurring between the time a permit

holder should file an extension request to ensure that a timely

decision is issued and the three-year termination date. Given

that the possible reasons for requesting an extension might

vary in complexity, the amount of time necessary for full

consideration of a request will vary, the extension may or

may not be opposed, hearings may or may not be scheduled

on the proposed extension, and there is no statutory deadline

for the Commission releasing its decision, this interpretation

would lead to unfair results. For example, under the appellees'

interpretation, a permit holder who files for an extension just

prior to the termination deadline would receive an extension

as long as the Commission issued the extension by the threeyear deadline, whereas a permit holder who files a request

for an extension well in advance of the deadline would not

receive an extension if the Commission is unable to grant

the extension by the cut-off date. 4 We cannot adopt an

interpretation that would lead to such arbitrary results. See

Watts, 126 S.W.3d at 100.

This construction is also supported by the effect of the

extension provisions. Cf. Tex. Gov't Code Ann. § 311.023(1)

(West 2005) (in interpreting statute, courts may consider

“object sought to be attained”). Section 134.072 terminates

a permit, regardless of the length of the permit's effective

term, within three years of the permit's issuance if the permit

holder has not begun mining operations. Tex. Nat. Res.Code

Ann. § 134.072; see also id. § 134.071 (West 2001) (allowing

Commission to issue permits with terms of five years or

more). Given that section 134.072 can shorten the effective

term of a mining permit by imposing a three-year deadline,

*566 the Commission's interpretation that a request for an

extension is effective if filed within the three-year deadline

seems logical and equitable.

For all the reasons previously given, we conclude that the

Commission's interpretation of the statute is consistent with

section 134.072 and further conclude that the Commission

had the authority to grant Dos Repulicas's extension request

even though the three-year termination date had passed.

Accordingly, we affirm that portion of the district court's

judgment.

The Statute Allows Extension Requests to be Granted

for Market Reasons

[3] In their only issue on appeal, the Commission and Dos

Republicas contend that the district court erred by reversing

the Commission's order. Specifically, they argue that the

absence of a market for the coal present at the Eagle Pass

mine was a condition outside of Dos Republicas's control that

occurred “in the absence of any fault or negligence” on behalf

of Dos Republicas and that, therefore, the Commission was

authorized by statute to grant the extension. 5
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

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The appellees, on the other hand, contend that the district

court correctly concluded that the Commission was not

authorized to issue an extension to Dos Republicas. First, the

appellees argue that the language of subsection 134.072(b)

(2), which is the subsection relevant in this appeal, acts

as a force majeure provision that prohibits an extension

unless the permit holder has physically been prevented from

commencing operations due to “conditions beyond its control

and without its fault or negligence.” Further, the appellees

contend that Dos Republicas was not actually prevented from

mining and, therefore, insist that Dos Republicas should not

have been given an extension for its conscious choice not to

begin mining.

[4] [5] We disagree with the appellees' assertion. There is

no requirement listed in 134.072 that a permit holder must be

“physically” prevented from engaging in mining operations to

obtain an extension. Further, we have been unable to find any

case applying the doctrine of force majeure to the issuance

of a permit by a state regulatory authority. The doctrine

is designed to protect parties to a contract and excuses a

party's nonperformance because of events outside the control

of the parties. See Black's Law Dictionary 445 (abridged

6th ed.1991); see also Perlman v. Pioneer Ltd. P'ship, 918

F.2d 1244, 1248 n. 5 (5th Cir.1990) (force majeure describes

particular type of event, which may excuse performance

under contract). The scope and applicability of the doctrine is

dependent upon the terms specified in a contract. See Zurich

Am. Ins. Co. v. Hunt Petroleum (AEC), Inc., 157 S.W.3d 462,

466 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see also

Perlman, 918 F.2d at 1248 n. 5 (should look to language of

contract to determine parties' intent concerning whether event

complained of excuses performance); Sun Operating Ltd.

P'ship v. Holt, 984 S.W.2d 277, 282–83 (Tex.App.-Amarillo

1998, pet. denied) (much of historic meaning of phrase force

majeure is gone and, therefore, scope and application of

doctrine is “utterly dependent upon the terms of the contract in

which it appears”); 30 Samuel Williston & Richard A. Lord,

A Treatise on the Law of Contracts § 77:31 (4th ed. 1990

& Supp.2004) (specific language of clause indicates what

events will excuse performance and typical clause *567

states that party's performance is subject to “acts of God, war,

government regulation, terrorism, disaster, strikes ... civil

disorder, curtailment of transportation facilities, or any other

emergency beyond the parties control”).

In addition, the cases the appellees refer to in support of

their assertion that, under the doctrine of force majeure,

market conditions cannot justify a permit extension are

distinguishable. The appellees refer to Day v. Tenneco, Inc.,

696 F.Supp. 233 (S.D.Miss.1988); Huffines v. Swor Sand

& Gravel Co., Inc., 750 S.W.2d 38 (Tex.App.-Fort Worth

1988, no writ); and Valero Transmission Co. v. Mitchell

Energy Corp., 743 S.W.2d 658 (Tex.App.-Houston [1st Dist.]

1987, no writ), for the proposition that unfavorable market

conditions cannot justify a permit extension under subsection

(b)(2). Although the courts in these cases did conclude that

poor market conditions do not excuse a party's obligation

to perform under a contract, see Day, 696 F.Supp. at 236;

Huffines, 750 S.W.2d at 40; and Valero, 743 S.W.2d at 663,

this case does not involve a contractual dispute or a breach

of contract claim. Furthermore, in two of the cases cited, Day

and Valero, the contracts at issue specifically contained a

force majeure clause that the courts were required to interpret:

there is no comparable provision in this case. 6

[6] Second, the appellees analogize the effect of Dos

Republicas's failure to begin mining operations to the effect

of a lessee's failure to undertake physical efforts to drill under

the terms of an oil and gas lease. Specifically, they contend

that, under an oil and gas lease, a lessee's failure to engage

in physical activity on the leased property will terminate the

lease at the end of the lease's primary term 7 and will not

allow for renewal, and they insist that a similar result should

apply here. See Smith & Weaver, Texas Law of Oil & Gas §

4.5 (2000) (“A lessee cannot safely rely upon activities which

do not involve actual physical activity on the land such as ...

applying ... for a drilling permit.... [T]he reported cases speak

in terms of actual physical contact with the leased premises.”).

However, the appellees have not referred us to cases holding

that a permit holder's failure to engage in mining activities

is equivalent to a lessee's failure to drill under an oil and

gas lease, and we see no reason to adopt such a rule. The

circumstances and expectations surrounding the issuance of

a permit are remarkably different than those present during

the formation of an oil and gas lease. Unlike a mining permit,

an oil and gas lease involves two parties to an agreement,

not a single party and a regulatory agency. Because *568

the issuance of a permit by the Commission does not involve

two parties entering into a contract for mutual economic

benefit, the need for a termination due to non-production is

not as pressing because the Commission does not receive an

economic benefit from a mining company corresponding to

the amount of coal mined. Cf. id. (if lessee under oil and

gas lease does not begin drilling, it is obligated to pay lessor

delay rental). Further, the economic effects of a coal mining

company's actions are only one factor for the Commission
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

to consider when issuing, extending, or terminating a permit;

as highlighted by the appellees, the Commission is also

charged with considering, among other things, the potential

environmental effects from coal mining and the effects on

neighboring landowners. See Tex. Nat. Res.Code Ann. §

134.003 (West 2001).

Third, the appellees urge that, because Dos Republicas was

aware that it did not have a market established when it filed

for a permit in 1994 and was aware of the social and political

instability present in Mexico when it asked for the permit to be

issued, Dos Republicas assumed those market risks knowing

that it was obligated to begin mining operations within three

years or lose the permit. Accordingly, they contend that the

permit should not be extended because the potential market

problems were foreseeable.

We disagree with the appellees' assertion that the fact that

the event was foreseeable bars invocation of the extension

provision. There is no requirement in section 134.072

mandating that conditions justifying a permit extension must

have been unforeseeable to the permit holder. See id. §

134.072. Moreover, many of the conditions that the appellees

insist would justify a permit extension will no doubt be

foreseeable to a certain extent, including natural disasters and

individuals filing suit against the company.

Fourth, the appellees note that subsection 134.072(b)(2)

does not specifically authorize an extension for economic

reasons but note that subsection 134.072(b)(1) does allow for

extension due to economic concerns. Subsection 134.072(b)

(1) allows the Commission to grant an extension if the permit

holder is involved in “litigation that precludes the beginning

of operations or threatens substantial economic loss.” Id. §

134.072(b)(1) (emphasis added). The appellees insist that if

potential economic loss was a factor to be considered under

subsection (b)(2), the legislature would have incorporated

that language into the section. Cf. Laidlaw Waste Sys., Inc.,

904 S.W.2d at 659 (Tex.1995) (when legislature employs

term in one section of statute and excludes it from another,

term should not be implied into section it was excluded from).

We cannot adopt the appellees' construction of section

134.072. Although subsection 134.072(b)(2) does not

specifically list “economic conditions” or “the lack of a

market” as permissible reasons justifying a permit extension,

the subsection does not list any specific situation justifying an

extension. Instead, the subsection uses very broad language

authorizing the Commission to grant an extension when

it believes an extension is necessary due to “conditions

beyond the control and without the fault or negligence of

the permit holder.” Tex. Nat. Res.Code § 134.072(b)(2);

see also Webster's Seventh New Collegiate Dictionary 235

(7th ed.1973) (“condition” means “a restricting or modifying

factor”). On its face, this language is broad enough to justify

the Commission's extension for market conditions that are not

caused by the permit holder.

Further, we disagree with the appellees' contention that the

inclusion of the phrase *569 “substantial economic loss”

in subsection 134.072(b)(1) and its exclusion in subsection

134.072(b)(2) indicates the legislature's intent that economic

conditions, including the lack of a viable coal market, cannot

be used to justify a permit extension. See Tex. Nat. Res.Code

Ann. § 134.072(b); see also Mid–Century Ins. Co. of Tex.

v. Kidd, 997 S.W.2d 265, 274 (Tex.1999) ( “doctrine of

expressio unius est exclusio alterius is simply an aid .... [and]

[a]s a rule of reason and logic, it should not be mechanically

applied to compel an unreasonable interpretation”). The

subsections apply in different contexts. Subsection (b)(1)

applies only to situations where the permit holder is involved

in litigation that either precludes the beginning of mining

or threatens economic loss to the permit holder regardless

of whether the litigation was initiated due to some fault of

the permit holder. Subsection (b)(2) applies when conditions,

which are not caused by the permit holder, are present

and warrant an extension. Unlike subsection (b)(1), which

is expressly limited to instances where the permit holder

is involved in some type of litigation, subsection (b)(2)

applies to a broader number of situations and provides no

express limitation on its applicability except that the permit

holder cannot be the cause of the condition resulting in the

failure to mine. Due to the distinct situations in which these

statutes apply, we believe that the legislature's failure to

include the phrase “economic loss” in subsection (b)(2) is

no indication that the lack of a market cannot be used to

justify an extension. The legislature specified that economic

conditions are permissible considerations when determining

whether to grant an extension under the first part of subsection

134.072(b). We can discern no reason to exclude economic

conditions as permissible factors for the Commission to

consider when determining whether to grant an extension

under the more broadly written second part of subsection

134.072(b).

Finally, the appellees refer to federal case law and to the

legislative history accompanying the federal counterpart to

the Texas Surface Coal Mining and Reclamation Act as
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

support for the proposition that market conditions cannot

justify an extension. First, the appellees refer to Shawnee Coal

Co. v. Andrus, 661 F.2d 1083 (6th Cir.1981). In Shawnee,

the Office of Surface Mining, Reclamation, and Enforcement

(the “Office”) concluded that Shawnee was in violation of the

Act because it had stockpiles of coal products that released

toxic runoff and ordered Shawnee to comply with the Act

and its accompanying regulations. The district court granted

an injunction in favor of Shawnee preventing enforcement

of the Office's orders, but the Sixth Circuit reversed because

Shawnee had not exhausted its administrative remedies prior

to filing suit. Shawnee Coal Co., 661 F.2d at 1092. During a

subsequent administrative proceeding, Shawnee argued that

it was unable to comply with the Office's orders because

it could not sell the stockpiled coal products due to a

depressed market. See Coalex Report 305 available at http://

www.osmre. gov/coalex/coalex305.htm (last modified Mar.

24, 1999). The administrative law judge concluded that

Shawnee had to either comply with the regulations in question

or no longer conduct operations. Id.

The appellees' reliance on this case is misplaced. Shawnee

was ordered by the Office to comply with an environmental

regulation relating to surface coal mining and subsequently

sought injunctive relief from having to comply with the

order. Dos Republicas has not failed to comply with nor

has it been ordered to comply with a regulation. Further,

it is not seeking injunctive relief from compliance with an

environmental regulation. Rather, it is *570 attempting to

extend the termination date of its mining permit, which is an

action authorized by the natural resources code.

Next, the appellees refer to the legislative history

accompanying the Surface Mining Control and Reclamation

Act. Like the Texas statute, the federal statute also provides

that a permit will terminate within three years if no mining

activity is undertaken but allows a permit to be extended

for reasons similar to those articulated in section 134.072.

See 30 U.S.C.A. § 1256(c) (West 1986); see also id. § 1253

(West 1986 & Supp.2006) (states may obtain jurisdiction over

mining if states develop program capable of implementing

Act). The Senate Committee's 1977 analysis of the act

recognized that permits may be issued and renewed without

operations being undertaken and specified that one of the

reasons for the three-year deadline is to ensure “that no one

will be locked into outdated reclamation requirements” that

were in effect when the permit was issued. S.Rep. No. 95–

128, at 74 (1977), U.S.Code Cong. & Admin.News 1977,

593, 612. Based on the federal legislative history's emphasis

on maintaining current environmental reclamation standards

and the fact that the Texas reclamation regulations in effect

when Dos Republicas first obtained its permit are different

from the regulations in effect now, the appellees insist that

Dos Republicas's permit should not have been extended for

economic reasons. Cf. 30 U.S.C.A. § 1201(d) (expansion of

coal mining requires establishment of “appropriate standards

to minimize damage to the environment”), (k) (West

1986) (Act is necessary to “mitigate adverse environmental

effects”).

However, the fact that the federal statute was enacted with

a focus on implementing current environmental reclamation

standards does not mandate a conclusion that a permit

cannot be extended for market reasons under the Texas

statute. If anything, the focus on reclamation standards

indicates the need for agency expertise in determining

what standards to enforce and whether a permit should be

extended. Furthermore, the administrative code authorizes the

Commission to review an existing permit and modify the

permit's provisions to ensure compliance with the Surface

Mining and Reclamation Act and the relevant administrative

code provisions. See 16 Tex. Admin. Code § 12.225 (2006).

Therefore, the Commission can compel a permit holder to

comply with more recent reclamation requirements prior to

the permit's termination.

Dos Republicas and the Commission's assertion that

the Commission may consider market conditions when

determining whether to grant an extension is also supported

by the broad authority the legislature bestowed upon the

Commission. The natural resources code specifies that

the Commission has been granted exclusive jurisdiction

over surface coal mining and reclamation activities, has

been charged with enforcing the relevant portions of the

code, and has been given the authority to issue rules

pertaining to mining and reclamation activities that are

consistent with the code. See Tex. Nat. Res.Code Ann.

§§ 134.011 (Commission given broad powers, including

power to adopt rules, issue and revoke permits, conduct

hearings, issue orders requiring miners to take certain actions,

and order cessation of mining activities), 134.012(a)(1)

(Commission has exclusive jurisdiction), 134.013 (West

2001) (Commission required to adopt rules relating to surface

coal mining and reclamation), 134.161–.181 (West 2001)

(enforcement powers of Commission). It has also been

specifically charged with determining whether a permit

extension should be granted. Moreover, the two types

of circumstances described by section 134.072 as *571
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

justifying an extension are broadly written. Accordingly, the

Commission's interpretation of section 134.072 is entitled to

judicial respect. See Hammack v. Public Util. Comm'n of Tex.,

131 S.W.3d 713, 723 (Tex.App.-Austin 2004, pet. denied);

see also Moore, 845 S.W.2d at 823.

Furthermore, the appellees' arguments ignore the need for

agency expertise in determining whether a permit extension

should be granted. See Hammack, 131 S.W.3d at 723

(legislature bestows powers upon agency with idea that

its goals will be more effectively realized by employing

agency's “specialized judgment, knowledge, and expertise”).

The code specifies that the Commission “may” grant an

extension and further states that, in determining whether to

grant an extension, the Commission must consider whether

the permit holder's failure to mine is the result of events

beyond the control of the permit holder and must determine

whether granting the extension is “necessary.” See Tex.

Nat. Res.Code Ann. § 134.072(b)(2); see also Tex. Gov't

Code Ann. § 311.016(1) (West 2005) (word “may” creates

discretionary authority). If the Commission determines that

an extension is necessary, the agency must also determine

a “reasonable” extension time. Tex. Nat. Res.Code Ann.

§ 134.072(b). These determinations necessarily involve an

assessment of the circumstances surrounding the permit

holder's activities and knowledge of the factual situations that

might justify a permit extension. Cf. State v. Public Util.

Comm'n, 883 S.W.2d 190, 195 n. 6 (Tex.1994) (determination

of whether something should be considered capital or expense

should be “left to the agency created to centralize expertise

in this area and granted broad authority concerning just

such matters”). Accordingly, deference to the Commission's

expertise regarding the conditions warranting an extension is

appropriate.

For all the reasons previously given, we conclude that the

Commission's interpretation of section 134.072 as allowing

for a permit extension due to unfavorable market conditions

“beyond the control and without the fault or negligence of

the permit holder” is consistent with the plain language of

the statute. Accordingly, we conclude that the Commission

did not exceed its authority when it granted Dos Republicas's

extension request because of unfavorable market conditions.

Therefore, we sustain Dos Republicas and the Commission's

issue on appeal.

CONCLUSION

Having concluded that the Commission had the authority to

issue Dos Republicas's extension and having sustained Dos

Republicas and the Commission's issue on appeal, we reverse

the judgment of the district court and remand the case for

further proceedings consistent with this opinion.

All Citations

215 S.W.3d 559

Footnotes

* Bea Ann Smith, Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b)

(West 1998).

1 Subsection 134.072(a) reads as follows:

A permit terminates if the permit holder has not begun the surface coal mining operation covered by the permit on

or before the third anniversary of the date on which the period for which the permit is issued begins.

Tex. Nat. Res.Code Ann. § 134.072(a) (West 2001).

2 The administrative rule interpreting section 134.072 contains nearly identical language. It provides:

(b) Automatic termination shall occur as follows:

(1) a permit shall terminate, if the permittee has not begun the surface coal mining and reclamation operation covered

by the permit within 3 years of the issuance of the permit;

(2) the Commission may grant reasonable extensions of time for commencement of these operations, upon receipt

of a written statement showing that such extensions of time are necessary, if:

(A) litigation precludes the commencement or threatens substantial economic loss to the permittee; or

(B) there are conditions beyond the control and without the fault or negligence of the permittee

16 Tex. Admin. Code § 12.219(b) (2006). Because the rule is nearly identical to the statute, we will limit our discussion

to the statute.

3 Coppock owns a cattle ranch near Dos Republicas's proposed mine site. She opposed the extension because she was

concerned about how mining operations might affect the groundwater under her ranch. The remaining appellees—Juanita
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

Alvarado, Guadalupe Davila, and Kickapoo Traditional Tribe of Texas—did not intervene until after the hearing examiner's

proposal for decision was issued.

4 In this case, almost a year passed between Dos Republicas's filing for an extension and the Commission's decision

granting the extension.

5 Whether the Commission's order was supported by substantial evidence is not at issue in this case. For this reason, we

focus solely on whether the Commission exceeded its statutory authority by issuing the extension.

6 The appellees also assert that in Day v. Tenneco, Inc., the Mississippi court concluded that market conditions cannot

be used to excuse a party's performance under a statute. 696 F.Supp. 233, 235–36 (S.D.Miss.1988). The statute listed

various events that would excuse a party's nonperformance under a contract and included a catch-all phrase for events

“beyond the control of such party.” See id. at 235–36 (citing former Miss.Code Ann. § 75–2–617 (1972)). However, as

discussed previously, this case does not involve a contract dispute, and Dos Republicas is not attempting to avoid an

obligation by invoking a statute excusing performance under a contract.

7 A primary term is “a period of time at the end of which the [leasehold] estate granted will terminate but which estate may

be extended by some other provision, usually one for production.” Fox v. Thoreson, 398 S.W.2d 88, 91 (Tex.1966); see

also Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5, 6 (Tex.App.-Houston [1st Dist.] 1988, no writ) (“primary term of

the lease is the maximum period of time for which the lessee can maintain lease rights without drilling”).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013)

56 Tex. Sup. Ct. J. 295

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

398 S.W.3d 676

Supreme Court of Texas.

SOUTHERN CRUSHED

CONCRETE, LLC, Petitioner,

v.

CITY OF HOUSTON, Respondent.

No. 11–0270. | Argued Oct. 15,

2012. | Delivered Feb. 15, 2013.

| Rehearing Denied June 13, 2013.

Synopsis

Background: Operator of portable concrete crushing facility,

which had received an air quality permit from the

Commission on Environmental Quality (CEQ), brought

action against city after it denied operator's application for

a municipal permit, seeking a declaration that the ordinance

was preempted and an injunction against its enforcement. The

333rd District Court, Harris County, Joseph J. Halbach Jr.,

J., granted city summary judgment, and operator appealed.

The Houston Court of Appeals, Fourteenth District, Tracy

Christopher, J., 402 S.W.3d 1, 2010 WL 4638417, affirmed.

Operator sought review which was granted.

[Holding:] The Supreme Court, Lehrmann, J., held that

ordinance was preempted by CEQ permit.

Reversed.

Attorneys and Law Firms

*676 Benjamin Allen ‘Ben’ Geslison, Cristina Espinosa

Rodriguez, Rebecca Gilliam Hengstenberg, Stephen G.

Tipps, Baker Botts LLP, Houston, TX, Derek Raymond

McDonald, Evan Andrew Young, Whitney Louis Swift,

Baker Botts LLP, Austin, TX, for Southern Crushed

Concrete, LLC.

Angus Joseph Dodson, Aundrea Kristine Gulley, Kathy D.

Patrick, Gibbs & Bruns LLP, Houston, TX, Bertrand L.

Pourteau II, Judith Lee Ramsey, Sr. Assistant City Attorneys,

City of Houston Legal Dept., David M. Feldman, Lynette

Fons, City of Houston Legal Department, Houston, TX, for

City of Houston.

*677 Rock W.A. Owens, Assistant Harris County Attorney,

for Amicus Curiae Harris County, Texas.

Chesley N. Blevins, Jackson Walker LLP, Austin, TX, for

Amicus Curiae Texas Aggregates & Concrete Association.

Scott N. Houston, Texas Municipal League, Austin, TX, for

Amicus Curiae Texas Municipal League.

Opinion

Justice LEHRMANN delivered the opinion of the Court.

We must decide whether the Texas Clean Air Act (TCAA)

preempts a Houston ordinance. The City denied Southern

Crushed Concrete's (SCC) municipal permit application to

move a concrete-crushing facility to a new location, even

though the Texas Commission on Environmental Quality

had previously issued a permit authorizing construction of

the facility at the proposed location, because the concretecrushing operations would violate the Ordinance's location

restriction. The TCAA provides that “[a]n ordinance enacted

by a municipality ... may not make unlawful a condition

or act approved or authorized under [the TCAA] or the

[C]ommission's rules or orders.” TEX. HEALTH & SAFETY

CODE § 382.113(b). Because the Ordinance makes it

unlawful to build a concrete-crushing facility at a location that

was specifically authorized under the Commission's orders by

virtue of the permit, we hold that the Ordinance is preempted.

Accordingly, we reverse the judgment of the court of appeals

and render judgment for SCC.

I. Factual and Procedural Background

In October 2003, SCC applied to the Commission for an

air quality permit to move an already-permitted concretecrushing facility to a new location in Houston. While the

application was pending, the Presbyterian School Outdoor

Education Center was built near the property SCC proposed

to use for its facility. In May 2007, after nearly four years

of permit proceedings in which the City participated and

opposed SCC's application, the City passed an ordinance

requiring concrete-crushing facility operators to obtain a

municipal permit. HOUS., TEX., CODE OF ORDINANCES

ch. 21, art. VI, div. 3, § 21–168.

Under the Ordinance, new concrete-crushing operations must

meet certain location requirements, which are more restrictive

than those imposed under the TCAA and the Commission
Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013)

56 Tex. Sup. Ct. J. 295

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rules. Id. §§ 21–168, –170. Specifically, the Ordinance

prohibits concrete-crushing operations within 1,500 feet of

a school facility and other enumerated land uses, measured

from property line to property line, id. §§ 21–167 to –170,

while the TCAA and Commission rules prohibit the operation

of a concrete-crushing facility within 1,320 feet of any

school and other enumerated land uses, measured from the

nearest points of the buildings in question, TEX. HEALTH

& SAFETY CODE § 382.065(a); 30 TEX. ADMIN. CODE

§ 116.112(b)(2).

Despite the Ordinance, the Commission granted SCC's

requested air quality permit in August 2008, concluding

that the concrete-crushing operations would not violate

the location requirements contained in the TCAA and

Commission rules. SCC then applied to the City for a

municipal permit, which was denied because the concretecrushing operations would violate the Ordinance's location

restriction.

SCC sued the City, seeking both a declaration that the

Ordinance is preempted and an injunction against its

enforcement. SCC contended that the Ordinance is preempted

under the Texas Constitution because it is impermissibly

inconsistent with the TCAA. See *678 TEX. CONST. art.

XI, § 5 (“[N]o ... ordinance ... shall contain any provision

inconsistent with the Constitution of the State, or of the

general laws enacted by the Legislature of this State.”).

SCC also argued that the Ordinance is preempted by the

TCAA, which provides that a city ordinance “may not make

unlawful a condition or act approved or authorized under

[the TCAA] or the [C]ommission's rules or orders.” TEX.

HEALTH & SAFETY CODE § 382.113(b). SCC further

asserted that the Local Government Code's uniformity-ofrequirements provision bars enforcement of the Ordinance

because the Ordinance was adopted after SCC filed its

permit application with the Commission. See TEX. LOC.

GOV'T CODE § 245.002. The parties filed cross-motions

for summary judgment, and the trial court granted the City's

motion, denied SCC's motion, and dismissed SCC's claims

with prejudice.

The court of appeals, with one justice dissenting, affirmed,

holding that the Ordinance is neither preempted nor

unconstitutional and does not violate the uniformity-ofrequirements provision. ––– S.W.3d ––––. SCC raises the

same arguments in this Court as it did in the trial court.

Because the dispositive question is whether the Ordinance

makes unlawful an act approved or authorized under the

TCAA or the Commission's rules or orders, we need only

address that issue.

II. Preemption of Ordinances

Enacted by Home–Rule Cities

[1] When both parties move for summary judgment and

the trial court grants one motion and denies the other, as

here, we review both sides' summary judgment evidence and

render the judgment the trial court should have rendered.

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,

872 (Tex.2000). SCC argues that the Ordinance is preempted

by the TCAA because the Ordinance makes unlawful an act

approved or authorized under the TCAA or the Commission's

rules or orders in violation of section 382.113(b) of the Health

and Safety Code. We agree.

[2] [3] The City of Houston is a home-rule city, deriving

its power from article XI, section 5 of the Texas Constitution.

TEX. CONST. art. XI, § 5. Home-rule cities have the full

power of self-government and look to the Legislature, not

for grants of power, but only for limitations on their powers.

Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d

641, 643 (Tex.1975) (citing Forwood v. City of Taylor, 147

Tex. 161, 214 S.W.2d 282 (1948)). “[I]f the Legislature

decides to preempt a subject matter normally within a homerule city's broad powers, it must do so with ‘unmistakable

clarity.’ ” In re Sanchez, 81 S.W.3d 794, 796 (Tex.2002)

(quoting Dallas Merchant's & Concessionaire's Ass'n v. City

of Dallas, 852 S.W.2d 489, 491 (Tex.1993)).

III. The Ordinance is Preempted by

the Plain Language of the TCAA

The TCAA's policy and purpose is “to safeguard the

state's air resources from pollution by controlling or abating

air pollution and emissions of air contaminants.” TEX.

HEALTH & SAFETY CODE § 382.002(a). Accordingly,

any person who plans to construct a facility that may emit

air contaminants, such as a concrete-crushing facility, must

obtain a permit from the Commission. Id. § 382.0518; 30

TEX. ADMIN. CODE § 116.110. The TCAA lists general

considerations the Commission may take into account in

determining whether to grant a permit. TEX. HEALTH

& SAFETY CODE § 382.0518. In issuing a permit, the

Commission determines that the permit application satisfies

the TCAA and applicable rules.
Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013)

56 Tex. Sup. Ct. J. 295

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

*679 [4] Section 382.113(b) states that a city ordinance

“may not make unlawful a condition or act approved or

authorized under [the TCAA] or the [C]ommission's rules or

orders.” TEX. HEALTH & SAFETY CODE § 382.113(b).

The plain language of section 382.113(b) unmistakably

forbids a city from nullifying an act that is authorized by either

the TCAA or, as in this case, the Commission's rules or orders.

Here, the Commission's authorization is evident from the face

of the permit:

A PORTABLE PERMIT IS HEREBY ISSUED TO

Southern Crushed Concrete, Inc.

AUTHORIZING THE CONSTRUCTION

AND OPERATION OF

Concrete Crushing Facility

Regulated Entity Number: RN100904838

The City counters that the Ordinance does not make unlawful

an act authorized by the Commission, arguing that the

permit merely removed one government-imposed barrier to

operations but did not affirmatively authorize anything. We

disagree. As Justice Brown noted in his dissent in the court

of appeals, the City effectively argues that “the permit the

Commission issued to [SCC] ‘authorizing the construction

and operation of’ a concrete-crushing facility is not actually

that.” ––– S.W.3d –––– (Brown, J., dissenting). The City's

argument is inconsistent not only with the permit language,

but also with Texas law, which defines permit to mean “an

authorization by a license, certificate, registration, or other

form that is required by law or state agency rules to engage

in a particular business.” TEX. GOV'T CODE § 2005.001(1)

(emphasis added).

The City further contends that, even if the permit

represents the Commission's authorization or approval, such

authorization or approval is only for the purpose of protecting

air quality, not for general purposes. And, because the

Ordinance purports to regulate land use, not air quality, the

Ordinance does not actually abrogate the permit. But, the

statute does not draw that distinction, nor should it if state

regulation is to be effective. If the City's contention were true,

a city could almost always circumvent section 382.113(b) and

vitiate a Commission permit that it opposes by merely passing

an ordinance that purports to regulate something other than

air quality.

IV. Conclusion

We do not decide whether a city may more restrictively

regulate an activity that the State also regulates, as that

issue is not before us. But, the express language of section

382.112(b) compels us to give effect to the Legislature's clear

intent that a city may not pass an ordinance that effectively

moots a Commission decision. We hold that the Ordinance

makes unlawful an “act approved or authorized under ...

the [C]ommission's ... orders” and is thus preempted by

the TCAA and unenforceable. TEX. HEALTH & SAFETY

CODE § 382.113(b). We therefore reverse the judgment of

the court of appeals and render judgment for SCC.

All Citations

398 S.W.3d 676, 56 Tex. Sup. Ct. J. 295

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

584 S.W.2d 352

Court of Civil Appeals of Texas, Austin.

STARR COUNTY, Appellant,

v.

STARR INDUSTRIAL SERVICES, INC., Appellee.

No. 12899. | June 20, 1979.

Applicant was denied his application for solid waste permit by

Water Quality Board. Intervenor county appealed judgment

of the 98th District Court, Travis County, Hume Cofer,

J., setting aside and vacating Board's order and remanding

cause to its successor, Texas Water Commission, for further

proceedings. The Court of Civil Appeals, Phillips, C. J., held

that a significant part of Board's action was arbitrary and

capricious where applicant had complied with requirements

of Board's staff for permit and where Board based its decision,

at least in part, on local opposition to application.

Judgment affirmed.

Attorneys and Law Firms

*353 Robert Wilson, McGinnis, Lochridge & Kilgore,

Austin, for appellant.

Edward C. Small, Dennis R. Reese, Small, Craig &

Werkenthin, Austin, for appellee.

Opinion

PHILLIPS, Chief Justice.

Appellee filed an application with the Texas Water Quality

Board requesting approval for a Class I industrial solid waste

permit for a landfill to be located in Starr County, Texas.

The Board 1 denied the application after a hearing. Appellee

appealed the denial of the order to the district court wherein

Starr County intervened.

The trial court reviewed the order and rendered judgment

setting aside and vacating the Board's order and remanding

the cause to its successor, Texas Water Commission, for

further proceedings. Intervenor, Starr County, subsequently

perfected its appeal from the judgment.

We affirm.

I.

Hearing was held on September 29, 1976, in Rio Grande

City and testimony was concluded on that same day. The

record was held open twenty days for certain supplemental

information which was supplied and the record was then

closed.

On January 7, 1977, the Board considered the application

and the hearing examiner's report in connection with the

application. On that same day the Board voted to deny the

application and a written order was prepared in which the

reasons for the denial of the permit were stated. The order was

entered February 3, 1977.

The administrative record in this case is extensive and

highly detailed. Appellee requested a permit to operate a

commercial industrial solid waste management site to be

located approximately nine miles northwest of Rio Grande

City in Starr County, Texas. The site was to consist of a

landfill type operation on an 81-acre tract leased by appellee

wherein certain stabilized and neutralized industrial wastes

would be buried in trenches and surrounded and covered

*354 with clay-rich soil. The anticipated active life of the

site was three to four years, and the permit sought provided

for various safeguards and monitoring of the site, both during

its active life and for a period of time after closure.

The original application contained extensive and detailed

information concerning the character of the wastes,

operations and closing of the facility. The details of many

aspects of the application were modified and supplemented

by additional information and specifications subsequently

submitted as a result of conferences with, and requests by, the

Board's staff.

The Board's technical staff, using the application and

information supplied by appellee, along with its own

information resources, drafted a proposed permit which it

felt would include all of the provisions necessary for the

protection of ground and surface waters, public and private

property and the general health and public welfare. The

provisions of the proposed permit were explained by the staff

and fully discussed at the public hearing which was held at

Rio Grande City.

The principal opposition to the permit came from the county

judge of Starr County, the Rio Grande City Chamber of
Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)

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Commerce, and from a state senator. The general tenor of the

objections was that the opponents were totally against any

Class I toxic waste dump in Starr County.

Consequently, in a letter from the Board's executive director,

Hugh Yantis, Jr., who was a member of the hearing

commission, it was stated: “It appears that the site and the

technical factors surrounding it are sustainable as permitting

an industrial solid waste disposal operation,” but concluded

that the application could be denied “on the basis of the

express views of the people within the county.” At the hearing

of the Board on January 7, 1977, a Board member moved that

the permit be denied for the reason that:

“I likewise am reluctant to imply

that we have veto power over the

local government and I must conclude,

all the arguments possibly to the

contrary, that there is considerable

local opposition on the part of the local

governments, more than just one, and

I'm inclined to agree with Mr. Yantis.”

The motion carried and the permit was denied.

A written order, denying the application, was entered on

February 3, 1977, and included the following pertinent

findings and conclusions.

“FINDINGS OF FACT

1. The construction and management of the industrial solid

waste disposal site as proposed is inadequate to prevent

or minimize adverse public health and environmental

impact from accidents resulting from the transportation,

processing, and disposal of industrial solid waste, which

includes hazardous and toxic materials, because of the

following:

(a) the proposed staffing pattern at the site would allow for

extended periods of time during which no one would be

at the site; and

(b) the lack of resources or necessary equipment in Starr

County to adequately handle the possibility of accidents

from fire, explosions, or traffic mishaps.

2. The lease agreement for a term of only five years

will not allow for adequate supervision, control or

monitoring of the site after it is closed.

3. The operation of an industrial solid waste

management site in Starr County at the location

proposed is inconsistent with the future land use

and development in the area.

4. The adamant local opposition to the application for

a proposed industrial solid waste management site

evidences that the granting of a permit would be

contrary to the welfare of the people in the area.

CONCLUSIONS OF LAW

Based on all findings of fact, the following conclusions of

law are made:

*355 3. There has been full compliance with all

applicable provisions of Chapter 21 of the Texas

Water Code and Section 4 of the Solid Waste

Disposal Act and the accompanying Rules of Practice

and Procedure of the Texas Water Quality Board

concerning the application for a permit.“

In its motion for rehearing, appellee offered to comply

with some of the new requirements, but the Board simply

overruled the motion.

II.

The Administrative Procedure and Texas Register Act (APA)

provides that the courts shall remand the case for further

proceedings “. . . if substantial rights of the appellant

have been prejudiced because the administrative findings,

inferences, conclusions, or decisions are:

(1) in violation of constitutional or statutory provisions;

(2) in excess of the statutory authority of the agency;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) Not reasonably supported by substantial evidence in view

of the reliable and probative evidence in the record as a whole;

or
Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)

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(6) Arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of

discretion.“ (Emphasis added). Tex.Rev.Civ.Stat.Ann. art.

6252-13a, s 19(e) (Supp.1978).

2

[1] In distinguishing between paragraphs five and six, the

legislature has decided that arbitrary and capricious action

or abuse of discretion by an administrative board is of equal

proscription as that action “not reasonably supported by

substantial evidence.” In other words, subsection six sets out

a basis for invalidation of an agency order in addition to and

distinct from subsection five.

This conclusion is more difficult than would appear merely

from reading section 19(e). The well recognized explanation

of the substantial evidence rule has blended the two concepts,

substantial evidence and arbitrary or capricious, into one

standard of review. The substantial evidence rule is generally

described as a limitation on the power of the courts to overturn

a decision by an administrative agency in that there must

be a showing “. . . the administrative decision is illegal,

arbitrary, or capricious; that is, that it is not reasonably

supported by substantial evidence.” Board of Firemen's Relief

and Retirement Fund Trustees v. Marks, 150 Tex. 433, 242

S.W.2d 181, 182-83 (1951). Accord, e. g., Gerst v. Cain,

388 S.W.2d 168 (Tex.1965); Chemical Bank and Trust Co.

v. Falkner, 369 S.W.2d 427 (Tex.1963); Industrial Accident

Board v. O'Dowd, 157 Tex. 432, 303 S.W.2d 763 (1957).

Stated in even stronger language, “. . . an arbitrary action

cannot stand and the test generally applied by the courts in

determining the issue of arbitrariness is whether or not the

administrative order is reasonably supported by substantial

evidence.” Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966).

[2] The Texas Supreme Court has expressly qualified the

language of Gerst v. Nixon, Supra, in Lewis v. Metropolitan

Savings and Loan Association, 550 S.W.2d 11 (Tex.1977).

There the Court made it clear that an order may be supported

by substantial evidence and yet be invalid for arbitrariness.

“(A)rbitrary action of an administrative agency cannot stand.

There is arbitrariness where the treatment accorded parties in

the administrative process denies them due process of law.”

Id. at 16.

[3] [4] In determining whether an agency has acted

arbitrarily or capriciously the reviewing court must decide

whether the agency order was based on a consideration of all

relevant factors. The reviewing court may not substitute its

judgment for that of *356 the agency. Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28

L.Ed.2d 136 (1971). There must appear a rational connection

between the facts and the decision of the agency. Bowman

Transportation, Inc. v. Arkansas-Best Freight System, Inc.,

419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); 5

B. Mezines, J. Stein and J. Gruff, Administrative Law s

51.03, at 51-33 (1979). Stated differently, the reviewing

court must remand “. . . if it concludes that the agency has

not actually taken a hard look at the salient problems and

has not genuinely engaged in reasoned decision-making.”

Texas Medical Association v. Mathews, 408 F.Supp. 303, 305

(W.D.Tex.1976). That court set aside an order because the

agency had been subjected to pressure from congressional

sources.

The major factor that runs throughout arbitrary-capricious

review cases is that parties must be able to know what is

expected of them in the administrative process. We believe

this notice was lacking in the present case.

[5] As we stated above, the appellee worked quite closely

with the Board's staff, and, apparently, had complied with all

of the staff's requirements for a permit when, to its surprise,

the Board denied the permit citing additional requirements

that had neither been expected by appellee nor proposed by

the Board's staff. In addition, the Board found: “The adamant

local opposition to the application for a proposed industrial

solid waste management site evidences that the granting of a

permit would be contrary to the welfare of the people in the

area.” Nowhere in the Act is local opposition mentioned for

consideration as a standard to govern the Board's decision and

such opposition, standing alone, should have no part in the

Board's decision-making process. Yet obviously it did.

[6] Inasmuch as we find that a significant part of the Board's

action herein was arbitrary and capricious under Section 19(e)

(6) of the Administrative Procedure Act, we need not reach

the substantial evidence question raised by appellant. Because

appellee's substantial rights were prejudiced by entry of the

agency order, the district court correctly set aside the order

and remanded the cause to the agency for further proceedings.

The judgment is affirmed.

All Citations

584 S.W.2d 352
Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)

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Footnotes

1 Now consolidated into the Texas Department of Water Resources.

2 Section 19(e) (and its subsections) is applicable where the relevant statute “. . . authorizes review under the substantial

evidence rule, or where the law does not define the scope of judicial review.” The Solid Waste Disposal Act is silent as

to the scope of judicial review; therefore, section 19(e) applies to this case.

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554 S.W.2d 924

Supreme Court of Texas.

TEXAS ANTIQUITIES

COMMITTEE et al., Appellants,

v.

DALLAS COUNTY COMMUNITY

COLLEGE DISTRICT, Appellee.

No. B-6107. | July 13, 1977.

| Rehearing Denied July 27, 1977.

County community college district filed suit for injunction

against Antiquities Committee and its members to set aside

order of Committee denying a permit to demolish three

buildings owned by college district. The 53rd District Court,

Travis County, Jones, J., rendered judgment for college

district, and Antiquities Committee appealed. The Supreme

Court, Pope, J., held that: (1) section of antiquities code giving

Antiquities Committee power to refuse to demolish building

that was of historical interest was unconstitutionally vague,

(2) and evidence did not support Antiquities Committee's

refusal to permit demolition of three buildings owned by

college district.

Affirmed.

Greenhill, C. J., concurred with opinion.

Denton, J., dissented with opinion in which Daniel, Johnson

and Yarbrough, JJ., joined.

Attorneys and Law Firms

*925 John Hill, Atty. Gen., Austen H. Furse, Asst. Atty.

Gen., Austin, for appellant.

Strasburger, Price, Kelton, Martin & Unis, Patrick F.

McGowan, H.P. Kucera, Dallas, Clark, Thomas, Winters &

Shapiro, Barry K. Bishop and Mary Joe Carroll, Austin, for

appellee.

Opinion

POPE, Justice.

Dallas County Community College District filed this suit

for injunction against the Texas Antiquities Committee

and its members to set aside an order of the Committee

denying a permit to demolish three buildings owned by

the College District. The trial court rendered judgment for

the College District, stating that in its judgment section

6 of the Antiquities Code is both unconstitutional and

unconstitutionally applied. This court has jurisdiction by

direct appeal. Tex.Rev.Civ.Stat.Ann. art. 1738a (1962);

Tex.R.Civ.P. 499a.

Dallas County Community College District came into

existence in 1965 as authorized by section 130.005 of the

Texas Education Code. Its Board of Trustees “constitutes

a body corporate” which may “acquire and hold real

and personal property, sue and be sued,” and has “the

exclusive power to manage” the College District's affairs.

Tex.Educ.Code Ann. s 23.26. Acting under its legislative

authorization, the College *926 District in 1966 purchased

land in downtown Dallas on which there were four buildings;

the cost of the purchase was 2,150,000 dollars. The City of

Dallas permitted temporary limited use of the three older

buildings upon assurance that they would be demolished

within three to five years. Plans for the demolition of the three

older buildings were announced to the public as early as 1969.

The Board of Trustees of the College met in 1972 and voted

to restore the one building that was structurally sound and to

demolish the three older buildings so the space could be used

for new college facilities. The Board met on April 1, 1975,

to consider demolition bids, but a group of citizens requested

a ten-day delay during which time the group hoped to find

funds for rebuilding the three buildings which were set for

demolition. The group was unsuccessful in finding any funds,

but it reported to the Board that on April 8 the buildings had

been placed on the National Register of Historical Buildings.

No prior notification was given the College District that an

expedited application was being made for inclusion of the

buildings in the National Register.

After the College District purchased the land and buildings

in 1969 and made its plans for the College's efficient use

of the land, the legislature enacted the Antiquities Code.

Tex.Rev.Civ.Stat.Ann. art. 6145-9 (1969). The Antiquities

Code provided for an Antiquities Committee consisting

of seven members. Tex.Rev.Civ.Stat.Ann. art. 6145-9, s

3 (1969). Section 4 of the Code gives the Antiquities

Committee the authority “to determine the site of, and to

designate, State Archeological Landmarks . . . .” Section

10 proscribes any construction on any State Archeological

Landmark without first obtaining a permit from the

Antiquities Committee. 1Section 10 is the only provision

of the Code which in any way entitles the Committee to
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grant or deny a permit for the demolition of the buildings.

The Antiquities Committee has not designated any of the

three buildings at issue as State Archeological Landmarks,

but the Committee has denied the College District's request

to demolish the buildings based upon the buildings' expedited

inclusion in the National Register of Historic Sites and

Buildings. The Antiquities Code does not give the Antiquities

Committee authority over buildings in the National Register;

instead, the Code only gives the Committee authority over

buildings which the Committee has designated as a State

Archeological Landmark. Since the Committee has not

designated the buildings as State Archeological Landmarks,

the College District does not need the Committee's permission

before demolishing the buildings.

The trial court grounded its judgment upon two separately

stated and separately numbered adjudications:

1. Section 6, Article 6145-9, V.T.C.S., reading as follows:

Sec. 6. All other sites, objects, buildings, artifacts,

implements, and locations of historical, archeological,

scientific, or educational interest, including but expressly

not limited to, those pertaining to prehistoric and historical

American Indian or aboriginal campsites, dwellings, and

habitation sites, *927 their artifacts and implements of

culture, as well as archeological sites of every character

that are located in, on or under the surface of any lands

belonging to the State of Texas or by any county, city or

political subdivision of the state are hereby declared to be

State Archeological Landmarks and are the sole property of

the State of Texas and all such sites or items located on

private lands within the State of Texas in areas that have

been designated as a “State Archeological Landmark” as

hereinafter provided, may not be taken, altered, damaged,

destroyed, salvaged, or excavated without a permit from, or

in violation of the terms of such permit of, the Antiquities

Committee.

is unconstitutional and void, and the orders of the Defendants

based thereon are unconstitutional and invalid.

2. Plaintiff need not obtain a permit from the Defendants

before demolishing the three buildings in question situated

on Plaintiff's El Centro Campus in the City of Dallas,

Dallas County, Texas, and bounded by Elm, Austin, Main

and Lamar Streets in said city; and the application of the

Texas Antiquities Act, Article 6145-9, to these buildings is

unconstitutional as applied.

We affirm the trial court judgment and will now examine each

of its separate adjudications.

UNCONSTITUTIONALLY VAGUE STATUTE

The first basis of the trial court's judgment was that section 6

of the Antiquities Code, stated above, was unconstitutionally

vague. There has been no contention that the three buildings

in question possess archeological, scientific, or educational

interest. The Antiquities Committee only contends that the

buildings are of “historical interest.” The sole basis for the

exercise of the Antiquities Committee's power over the three

buildings is found, if it can be found, in these words of the

statute:

Sec. 6. All . . . buildings . . . and locations

of historical . . . interest.

The Antiquities Committee, although it has the power, by

article 6145-9, section 11, has adopted no rules or standards

which state criteria for “buildings . . . and locations of

historical . . . interest.” The Antiquities Committee does

not contend that section 6 gives any predictable standard or

safeguard. Its position is that the law which strikes down

statutes because they are vague, overbroad, and uncertain

should be overruled. It argues that the power of the legislature

to delegate its powers to state boards and commissions should

be unlimited so long as there are experts who constitute the

membership of the Committee.

There has been called to our attention no case in Texas or

elsewhere in which the powers of a state board are more

vaguely expressed or less predictable than those permitted by

the phrase in question. The word “buildings” comprehends

all structures; “historical” includes all of the past; “interest”

ranges broadly from public to private concerns and embraces

fads and ephemeral fascinations. All unrestorable structures

ordinarily hold some nostalgic tug upon someone and may all

qualify as “buildings . . . of historical . . . interest.”

[1] Upon the basis of the statute now before us, we are

unconvinced that we should renounce the settled law of

Texas that the legislature may not delegate its powers without

providing some criteria or safeguards. Depending upon the

nature of the power, the agency, and the subject matter,

varying degrees of specific standards have been required

in testing the reasonable breadth of statutes. 1 Sutherland,

Statutory Construction, s 4.05 (4th ed. 1975); Jordan v. State

Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (1960).

Sound reasons support the rule that some reasonable standard
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is essential to the constitutionality of statutory delegations of

powers to state boards and commissions.

Vague laws offend several important

values. First, because we assume that

man is free to steer between lawful

and unlawful conduct, we insist that

laws give *928 the person of ordinary

intelligence a reasonable opportunity to

know what is prohibited, so that he may

act accordingly. Vague laws may trap the

innocent by not providing fair warning.

(Footnote omitted.) Second, if arbitrary

or discriminatory enforcement is to be

prevented, laws must provide explicit

standards to those who apply them.

A vague law impermissibly delegates

basic policy matters to policemen,

judges, and juries for resolution on

ad hoc and subjective basis, with

the attended dangers of arbitrary and

discriminatory applications. Grayned v.

City of Rockford, 408 U.S. 104, 108-109,

92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d

222 (1972).

We adhere to the settled principle that statutory delegations

of power may not be accomplished by language so broad and

vague that persons “of common intelligence must necessarily

guess at its meaning and differ as to its application.” Connally

v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126,

70 L.Ed. 322 (1926). We are not persuaded that we should

overrule or disapprove such cases as Key Western Life Ins.

Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d

839 (1961); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165

S.W.2d 446 (1942); Housing Authority of City of Dallas

v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (1940);

Martinez v. Texas State Board of Medical Examiners, 476

S.W.2d 400 (Tex.Civ.App.1972, writ ref'd n.r.e.), appeal

dism., 409 U.S. 1020, 93 S.Ct. 463, 34 L.Ed.2d 312;

Commissioners Court of Lubbock County v. Martin, 471

S.W.2d 100, 105 (Tex.Civ.App.1971, writ ref'd n.r.e.); E.S.G.

v. State, 447 S.W.2d 225 (Tex.Civ.App.1969, writ ref'd

n.r.e.).

Professor Davis concludes that the non-delegation doctrine

in federal courts has been less than successful, but he

would not abolish all standards. Davis, Administrative Law

Treatise, s 2.16 (1st ed. 1970). Instead, he would substitute

administrative standards in the form of published rules and

regulations for statutory standards. See Trapp v. Shell Oil Co.,

145 Tex. 323, 198 S.W.2d 424 (1947). We have, in this case,

no standard or criteria either by statute or rule which affords

safeguards for the affected parties.

Unconstitutional Application

[2] [3] The second basis for the trial court's judgment is

that “the application of the Texas Antiquities Act, Article

6145-9, to these buildings is unconstitutional as applied.” We

agree with this conclusion. Since the Antiquities Committee

is a state agency, the Antiquities Committee's application

of section 6 of the Antiquities Code must be judged by the

substantial evidence rule. Railroad Commission v. Shupee,

57 S.W.2d 295 (Tex.Civ.App.1933), aff'd, 123 Tex. 521, 73

S.W.2d 505 (1934). The substantial evidence rule demands

that we hold section 6 unconstitutional as applied if the

evidence is such that reasonable minds could not have reached

the conclusion that the Antiquities Committee must have

reached in order to justify its actions. Trapp v. Shell Oil Co.,

supra ; (Railroad Comm.) TremCarr v. Shell Oil Co., 139

Tex. 66, 161 S.W.2d 1022 (1942). We hold that there is no

substantial evidence in support of the action of the Antiquities

Committee.

There are two reasons for this conclusion. This first one is that

a program to restore the buildings would compel the misuse

of public funds that were obtained by approving a bond issue

for educational purposes. The college delayed its contract for

demolition so that those seeking to save the buildings might

come forward with funds necessary to do so. If those funds

had been available, the public school money would not have

been needed. No source of funds for salvage and restoration

is suggested by any of the witnesses, other than the school

funds. The school funds were already dedicated and allocated

to the College District's educational purposes. The testimony

shows that the large sums of money required to restore the

buildings would exhaust the College funds essential to its

authorized educational purposes. Restoration of the buildings

would also require the reconstruction of five times more space

than is needed for educational purposes. The Antiquities

Committee recognized this fact. A witness *929 for the

Committee stated that funds might be granted by the National

Park Service provided the buildings are usable, but not if

they are simply restored to be exhibited as old buildings. An

architect testifying for the Committee expressed the opinion
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that “the only source I know of for the money would be . . . the

Community College . . . .” The President of the College said

that the public would be considerably upset if it thought there

was a possibility of diverting school funds to the restoration

for non-educational purposes. Upon the basis of this kind

of evidence from both those who favored and opposed the

restoration of the buildings, the trial court quite properly

concluded that the Act was unconstitutionally applied to a

situation in which property and funds committed to a public

trust for the benefit of the people in the school district would

be arbitrarily diverted to a wholly different purpose.

The second reason for our decision is that the buildings

are incapable of restoration except upon an unreasonable

expenditure of money. The inferior materials used in the

original construction of the buildings requires complete

reconstruction from the foundation up and at a cost

greater than original new construction. The engineering and

architectural evidence is that the only way to bring the

buildings up to code standards or to save them is to rebuild

them. Even the foundations would have to be rebuilt. The

cost of rebuilding all three buildings would be in excess of

10,500,000 dollars. There is danger of collapse of the outside

walls if reconstruction is undertaken. Estimates for the cost

of reconstruction range from thirty-five dollars to eightyone dollars per square foot. One witness for the Antiquities

Committee said that anything can be built if you construct

a building out of money, but the reconstruction would cost

more than new construction. He stated that the diversion of

the College District's funds from education to the preservation

of the three buildings presented an unsolvable conflict.

Another witness for the Antiquities Committee suggested

that the solution to the construction problem was to gut the

buildings, use the facades as curtain walls, and put a new

structural frame inside. Sandstone and brick have been falling

from the buildings since 1967. Both the sandstone and the

windowsills have now been purposely chiseled away from the

outside of the buildings to avoid their falling on people in

the streets below. Of three hundred core samples taken from

the building, all came out as dust, chips, or loose bricks. The

buildings have already outlasted by more than forty years the

time for which they were designed. The exterior walls support

the floor load. One building, eight stories high, uses wood

columns. All three buildings are at least nine times below the

code requirements.

The only use for the buildings suggested by the Antiquities

Committee, even after the costly rebuilding would be as

commercial office space. The buildings cannot be made

usable for educational purposes. Classrooms with many

occupants, books, and furniture would impose weight loads

that the buildings could not bear even if restored. If usable

as commercial rented space, there would be a continuing

financial burden to the College District. For example, one

building could be restored at a cost of 6,000,000 dollars

and then rented for commercial purposes with a maximum

return of no more than 2.98 percent. But leasing for

business purposes would be difficult because the commercial

offices would be in the midst of an inappropriate academic

community. That part of downtown Dallas already has an

eighteen to twenty percent vacancy rate for its buildings.

From this record, there is no substantial evidence that the

buildings, even after reconstruction and renovation could be

usable for educational purposes.

The Antiquities Committee confronts the trial court's

judgment with the contention that the College District, as a

political subdivision of the state is subordinate to the powers

of the Antiquities Committee; has no contract or property

rights which are protectable against the Committee's superior

powers. We need not in this case, decide which of two state

agencies is charged with *930 the “higher” trust. In this

case that question would cast the educational needs of the

state's citizens against the preservation of the 1910 buildings

described above. The Committee, relying upon the language

of Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52

L.Ed. 151 (1907), argues that “the State is supreme, and

its legislative body . . . may do as it will, unrestrained by

any provision of the Constitution of the United States.” That

expression of statism satisfies neither the protections of the

United States Constitution or the Texas Constitution.

The United States Supreme Court has closely restricted

Hunter's broad and loose language in Gomillion v. Lightfoot,

364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Justice

Frankfurter, writing for the court in Gomillion, circumscribed

its dicta by an analysis of the matters before the court in

Hunter and wrote:

In short, the cases that have come

before this Court regarding legislation

by States dealing with their political

subdivisions fall into two classes: (1)

those in which it is claimed that the

State, by virtue of the prohibition against

impairment of the obligation of contract

(Art. I, s 10) and of the Due Process

Clause of the Fourteenth Amendment, is

without power to extinguish, or alter the

boundaries of, an existing municipality;

and (2) in which it is claimed that
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the State has no power to change

the identity of a municipality whereby

citizens of a pre-existing municipality

suffer serious economic disadvantage.

364 U.S. 342-343, 81 S.Ct. 128.

In a society when so many rights are subject to the regulation

of administrative agencies, Gomillion brought the “plenary

power” doctrine of Hunter under appropriate limitations,

stating:

a correct reading of the seemingly

unconfined dicta of Hunter and

kindred cases is not that the State

has plenary power to manipulate in

every conceivable way, for every

conceivable purpose, the affairs of its

municipal corporations, but rather that

the State's authority is unrestrained

by the particular prohibitions of the

Constitution considered in those cases.

[4] The Texas law has developed in a similar fashion.

One agency of the state does not possess powers to

divest vested property and contract rights of another state

agency “unrestrained by the particular prohibitions of the

Constitution.” In Milam County v. Bateman, 54 Tex. 163

(1880), the legislature granted land to the county for public

school purposes. Subsequently, the legislature took this land

from the county and transferred it to private individuals.

This court held that the legislature could not do this. The

legislature's extensive control over its subdivisions' political

rights was recognized, but it was held that a subdivision's

property rights, “are protected by the same constitutional

guarantees which shield the property of individuals.” 54 Tex.

at 166. Milam County went on to state that, “the purpose for

which the property was originally acquired shall, as far as

circumstances will admit, be kept in view; and that it shall

not arbitrarily be diverted as in the case before us, to private

parties and to a wholly different purpose.” 54 Tex. at 166.

[5] Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20

(1931) faced the issue whether the legislature had plenary

power over a school district's property and functions. The

question in Love was whether a school district must, as the

legislature had enacted, use its funds to educate non-residents

of the local district. Writing for the court, Chief Justice

Cureton rejected the idea that the legislature has plenary

powers over its creature when the school district holds its

property as trustee for the public. This court held, instead, that

the school district's property must be used for the purposes

for which it was acquired. This court stated that the school

district:

has no contract right to exist as a

corporation, but the public that it

represents has a vested right in the

municipal property acquired for its

benefit, and is entitled to demand that

such property be applied to its uses. 40

S.W.2d at 27.

*931 Love cited with approval the principle enunciated in

24 Ruling Case Law, Schools ss 45-47 (1919), that school

funds and property are trust funds for educational purposes;

consequently, they should not:

be diverted to other even though closely

kindred uses, no matter how meritorious

the project may appear to be either in

its practical or ethical or sentimental

aspects. Even the legislature, itself, the

fountain head of matters educational,

cannot divert school funds to other uses.

40 S.W.2d at 27.

Since the Antiquities Committee's application of section 6

diverts the buildings to uses other than educational purposes,

Love demands that we hold section 6 unconstitutional as

applied.

[6] On the basis of the trial court's findings that section

6 of the Antiquities Code is both unconstitutional and

unconstitutionally applied, we affirm the trial court judgment.

GREENHILL, C. J., concurs with an opinion.

DENTON, J., dissents in an opinion in which DANIEL,

JOHNSON and YARBROUGH, JJ., join.

GREENHILL, Chief Justice, concurring.

I agree that the judgment of the trial court should be affirmed;

and, therefore, I concur in the judgment of the Court.

It clearly appears to me that this particular determination of

the Antiquities Committee is not supported by substantial
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evidence. Stated differently, for the reasons set out in the

Court's opinion, the action of the Board is arbitrary and

without a sound basis.

My conclusion is based on the application of the substantial

evidence rule and not upon constitutional grounds. When a

controversy may be resolved on a non-constitutional ground,

then the court should rest its decision on that ground, and

should not decide the constitutional questions presented.

Neese v. Southern Railway Co., 350 U.S. 77, 76 S.Ct. 131,

100 L.Ed. 60 (1955); Peters v. Hobby, 349 U.S. 331, 75 S.Ct.

790, 99 L.Ed. 1129 (1955). I therefore, do not reach any

constitutional question.

DENTON, Justice, dissenting.

I respectfully dissent. Four of my brothers hold that section

six of the Antiquities Code is too vague, so it violates the Due

Process Clause of both the State and Federal Constitutions. I

disagree; the College District does not have standing to assert

deprivation of property without due process, and under what I

perceive as the proper scope of review in this case there exists

no justiciable controversy.

My first disagreement with the plurality is in the application

of the Fourteenth Amendment and Art. I, s 19 of the Texas

Constitution:

nor shall any State deprive any person

of life, liberty, or property, without due

process of law . . . .

U.S.Const. Amend. XIV, s 1.

No citizen of this State shall be deprived

of . . . property . . . except by due course

of law . . . .

Tex.Const. Art. I, s 19. Essential to a holding that the College

District has not been afforded due process is a holding that the

District is a person, or a citizen. There exists no authority to

support the holding, implicit in the plurality opinion, that the

College District is a “person,” and I can think of no rationale

for such a holding.

The College District is a body politic, or political subdivision

of the State of Texas, created pursuant to the legislative

authority of article 2815h of the civil statutes. The College

District is authorized to levy taxes, acquire title in its

own name to real and personal property, and generally to

administer such property for educational purposes. It is not

given the right to vote, the freedoms of speech, press, and

religion, the right to counsel, or any other right enjoyed by

people under the Constitution. This is because a political

subdivision is not now and never has been a “person” in any

sense of the term. It was early established by this Court that a

public political subdivision is merely an agent of the State in

the *932 administration of its power. In Bass v. Fontelroy,

11 Tex. 698 (1854) the Legislature had repealed the charter

of the City of Brownsville; the repeal was challenged as

an unlawful taking of vested property rights without just

compensation. Justice Lipscomb, denying the City's claim,

stated that:

The establishment of counties, their

boundaries, courthouses, jails, bridges,

ferries, are all matters of public policy,

dependent on the legislative will for

their creation; and . . . are equally

dependent upon the same for their

continued existence.

11 Tex. at 705. And in Guadalupe County v. Wilson County,

58 Tex. 228 (1882), the Legislature in creating Guadalupe

County had taken portions of Wilson County without

compensation. The ensuing boundary dispute was held

a political question, resolved beyond judicial interference

by the Act creating Guadalupe County and defining its

boundaries to the exclusion of Wilson County. The agency

concept of municipal corporation law was specifically relied

upon in City of Victoria v. Victoria County, 100 Tex. 438, 101

S.W. 190 (1907), where this Court, in upholding a legislative

transfer of title from the county to the city stated:

The principle is that insofar as a

corporation strictly municipal or quasimunicipal holds property for the

purposes of government, it holds merely

as a governmental agency, and it is within

the power of the Legislature of the State

to confer that agency upon some other

proper governmental instrumentality.

100 Tex. at 451, 101 S.W. at 196. See also, Herget, The

Missing Power of Local Government, 62 Va.L.Rev. 999

(1976).

Decisions of the United States Supreme Court establish

that political subdivisions, as agencies of the State in the
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exercise of governmental powers, have no rights assertible

under the Federal Constitution against the State. The famous

case of Trustees of Dartmouth College v. Woodward, 17

U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819), established

that public corporations, as distinguished from private

business corporations, enjoy no protection assertible under

the contract clause of the Federal Constitution against

legislative alteration of organic charters. See Campbell, John

Marshall, The Virginia Political Economy, and the Dartmouth

College Decision, 19 Am.J.Legal Hist. 40 (1975). Cases

following Dartmouth College have reiterated that the charter

of a political subdivision, being a mere delegation of State

authority, is subject to alteration or revocation at the will of

the Legislature. Hunter v. City of Pittsburgh, 207 U.S. 161, 28

S.Ct. 40, 52 L.Ed. 151 (1907); Covington v. Kentucky, 173

U.S. 231, 19 S.Ct. 383, 43 L.Ed. 679 (1899); Meriwether v.

Garrett, 102 U.S. 472, 26 L.Ed. 197 (1880); East Hartford v.

Hartford Bridge Co., 51 U.S. (10 How.) 511, 13 L.Ed. 518

(1850). A municipality thus was denied the power to assert

denial of due process of law in City of Trenton v. New Jersey,

262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923). And Mr.

Justice Cardozo in Williams v. Mayor of Baltimore, 289 U.S.

36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933) made it clear that no

protection is offered a political subdivision by the Fourteenth

Amendment. To the Supreme Court, a political subdivision

simply is not a person; and is not, therefore, entitled to due

process. See Schulz, The Effect of the Contract Clause and

the Fourteenth Amendment upon the Power of the States to

Control Municipal Corporations, 36 Mich.L.Rev. 385 (1938).

The plurality cites Gomillion v. Lightfoot, 364 U.S. 339, 81

S.Ct. 125, 5 L.Ed.2d 110 (1960) as providing the necessary

exception to the rule. In that case voters, that is People of

Tuskeegee, Alabama argued that a legislative redistricting

of the city deprived them of the voting rights under the

Fifteenth Amendment. There were no “rights” of the city, a

political subdivision, before the Court. The plurality quote the

following from the Gomillion opinion:

(A) correct reading of the seemingly

unconfined dicta of Hunter and

kindred cases is . . . that the

State's authority is unrestrained by

the particular prohibitions of the

Constitution considered in those cases.

*933 364 U.S. at 344, 81 S.Ct. at 128 (emphasis mine). As

stated above, City of Trenton v. New Jersey and Williams

v. Mayor of Baltimore, supra, two of “those cases” referred

to in Gomillion, involved claims under the Fourteenth

Amendment. To reiterate, Gomillion involved the rights of

private persons ; it has no application to the controversy

at hand. The plurality cite no case in which a political

subdivision has been held entitled to due process and there is

none.

This Court has, on two occasions, enunciated the proper

scope of judicial review over legislative control of political

subdivisions. Far from holding that political subdivisions are

entitled to due process of law, this Court has stated that the

only protection is against arbitrary diversion of property held

by political subdivisions in such a fashion that the public

would be deprived of the use of such property. The only

judicial question is arbitrariness vel non of the legislative

action.

In Milam County v. Bateman, 54 Tex. 163 (1880), the Court

commented:

Counties in their relation toward the state

may be viewed in a two-fold aspect: one,

which pertains to their political rights and

privileges; the other, to their rights of

property.

54 Tex. at 165. Concerning “political rights and privileges,”

including the right of organic existence, the Court noted that

a county has no assertible rights against the State; the latter

was said to be in complete control. Different considerations

were deemed applicable as to “rights of property.”

A different principle, however, obtains as regards the rights

of counties to property which they may acquire.

If given for a specific object, the state may very properly, as in

the instance under consideration of our school lands granted

to counties, exercise such supervision and control over the

actions of the counties as to compel the proper execution of

the trust, or prevent its being defeated; but it is believed that

this control, unless by consent of the county, should be subject

to the restriction, that the purpose for which the property was

originally acquired shall, as far as circumstances will admit,

be kept in view ; and that it shall not arbitrarily be diverted . . .

to private parties and to a wholly different purpose.

54 Tex. at 165-66 (emphasis mine).

The quoted portions of the Milam County opinion were

genesis to this Court's consideration of legislative power
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in Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20

(1931). In Love the Court was concerned with whether the

Legislature could impose upon the City the obligation to

employ City funds for the education of nonresident children.

It was determined that such an imposition would violate

Tex.Const. Art. VII, s 3, in that it would divert special school

funds. * In spite of such holding the Court went on to discuss

the legislative power over its subdivisions in general:

The rule is that the ownership of (local government) property

is in the local district or municipality for the benefit of the

public, within the boundaries of the district or municipality.

The Legislature may control or dispose of the property

without the consent of the local bodies, so long as it does not

apply it in contravention of the trust.

120 Tex. at 367, 40 S.W.2d at 27 (emphasis mine).

The limitations upon legislative power in Milam County and

Love are founded upon sound reason. Local government

property is, in principle and in fact, trust res conveniently

held and managed by local officials for the benefit of

the local public. Where, *934 as here, such property has

been acquired with governmental funds pursuant to specific

approval of the local voting public, there arises special reason

for enforcing the trust; justifiably, the public has a reliance

interest in the disposition of property acquired for and devoted

to a designated use. Milam County instructs the Legislature

in its supervision of local government property to keep in

view “the purpose for which the property was originally

acquired,” and prohibits arbitrary diversion to a “wholly

different purpose.” Love goes further to say that Legislative

power over local government property is regulatory only;

while the entity is subject to legislative destruction, the

property held by that entity remains in the public trust. On the

other hand, neither Milam County nor Love can be considered

authority for the proposition that local government entities

have judicial standing to challenge legislative regulation

of property in the same manner or to the same degree

as owners of private property. The judicial touchstone is

arbitrariness. Management of property held in the public

trust is a matter of legislative concern. Cf., Note, Proprietary

Duties of the Federal Government Under the Public Land

Trust, 75 Mich.L.Rev. 586, 592-94 (1977).

Turning now specifically to section six of the Antiquities

Code, it becomes apparent to me that it effects no diversion

of College District property in a manner prohibited by Milam

County and Love. The mere fact that “State archeological

landmarks” are declared to be the “sole property of the State”

gives rise to no justiciable complaint on the part of the local

government entity in which title was theretofore reposed. The

interest protected by Milam County and Love is the public's

interest in use of the property, not the local entity's interest in

nominative title. Change in nominative title effects no change

in use. The nominative title to public property is a patently

political matter to which the words of Justice Bonner in

Milam County are peculiarly applicable: “If (the State) could

not exercise such power over the delegated political rights and

privileges of . . . subdivisions of state governmental authority,

we might have a system of petty discordant governments

within a government, without unity of design or action.”

54 Tex. at 165. See also Chester County Institution District

v. Commonwealth, 341 Pa. 49, 17 A.2d 212 (1941). And

although the grant of power to the Antiquities Committee to

prohibit or regulate alteration, damage or destruction of an

“archeological landmark” indirectly might effectuate some

change in a use, the legislative decision to vest power to

make that change in a committee of seven experts cannot

be considered arbitrary. It is as I have said, only arbitrary

regulation of local government property which gives rise to a

justiciable interest on the part of local government officials.

In the instant case, the College District claims that the

buildings cannot compatibly be used for both educational and

cultural (historical preservation) purposes. It might indeed

be a justifiable implication from the Antiquities Committee's

action that the educational function of the College District

would be promoted rather than impaired by the requirement

that the cultural integrity of school buildings be maintained.

But making such an implication is not a judicial function.

It is not the duty of the courts in a case of this nature to

view structures, deemed by one State agency as culturally

insignificant and by another as worthy of preservation,

and decide which is in the right. This is especially true

where the Legislature has granted the other the power to

preserve without granting the one the right to question.

Firemen's & Policemen's Civil Service Comm'n v. Kennedy,

514 S.W.2d 237 (Tex.1974). The Legislature, in section

six of the Antiquities Code, has delegated authority to the

Antiquities Committee to protect that which it deems worthy

of protection. The Antiquities Committee is made a final

checkpoint prior to possible effacement of property deemed

by the Legislature to be of intangible value. The legislative

decision that property held by its political subdivisions

may not be altered when such alteration would efface the

property's historical integrity is not a decision with which

the courts should interfere. If *935 the plurality intends to

hold, under Love v. City of Dallas that historical preservation

is such a wholly incompatible use of property acquired for

educational purposes so as to constitute an unlawful diversion
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of a public trust, it would be difficult to discern any situation

in which historical preservation would not be antipathetic

to the public trust. I can see no operative distinction

between property acquired for educational purposes and

property acquired for, say, a City Hall, a courthouse or a

park. Indeed, such a holding is tantamount to a judicial

declaration that no property held by a political subdivision

can be protected under the legislative banner of historical

preservation unless the property originally was acquired for

its aesthetic characteristics, or unless the Legislature takes the

property by exercise of eminent domain. I would hold that

restriction of the use of College District property in order

to protect that property's aesthetic integrity does not deprive

the local public of the benefit of the property to the degree

prohibited by Love and Milam County. In imposing a higher,

general trust upon property held by political subdivisions in

the public trust, the Legislature acted within its authority.

When such is the case, the remedy lies in the legislative

process, not in the courts. See Henkin, Is There a “Political

Question” Doctrine ? 85 Yale L.J. 597 (1976). This is a

dispute between different departments of the same branch

of government. The “boss” of that branch, the Legislature,

has decided that one department's power exceeds the other's.

As long as no specific constitutional provision is violated,

and absent arbitrary legislative action, the courts cannot and

should not interfere with the manner in which the Legislature

conducts its affairs.

I would not in this case reach the questions of vagueness

discussed by four members of the Court. Such questions

should, and will be raised at such time as this Court is faced

with governmental interference with private property under

the banner of historical preservation. But in reply I do point

out that this Court very recently stated that the protection of

cultural property may indeed be a duty of the Legislature. San

Antonio Conservation Soc'y, Inc. v. City of San Antonio, 455

S.W.2d 743, 748 (1970). Not every historical structure worthy

of protection can be an Alamo; vagueness in describing

cultural property may to a degree be an inherent difficulty.

I would reverse the district court's judgment and dissolve the

injunction.

DANIEL, JOHNSON and YARBROUGH, JJ., join in this

dissent.

All Citations

554 S.W.2d 924, 18 A.L.R.4th 973

Footnotes

1 Sec. 10. The Antiquities Committee shall be authorized to issue permits to other state agencies or institutions and to

qualified private institutions, companies, or individuals for the taking, salvaging, excavating, restoring, or the conducting of

scientific or educational studies at, in, or on State Archeological Landmarks as in the opinion of the Antiquities Committee

would be in the best interest of the State of Texas. Such permits may provide for the retaining by the permittee of a portion

of any recovery as set out for contracting parties under Section 9 hereof. Such permit shall provide for the termination

of any rights in the permittee thereunder upon the violation of any of the terms thereof and to be drafted in compliance

with forms approved by the Attorney General. All such permits shall specifically provide for the location, nature of the

activity, and time period covered thereby. No person, firm, or corporation shall conduct any such operations on any State

Archeological Landmark herein described without first obtaining and having in his or its possession such permit at the

site of such operation, or conduct such operations in violation of the provisions of such permit.

* The Court stated:

Since the Constitution, art. 7, sec. 3, contemplates that districts shall be organized and taxes levied for the education

of scholastics within the districts, it is obvious that the education of nonresident scholastics is not within their ordinary

functions as quasi-municipal corporations; and under the authorities cited the Legislature is without power to impose such

an obligation on them, without just compensation.

120 Tex. at 367, 40 S.W.2d at 27.

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Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)

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665 S.W.2d 446

Supreme Court of Texas.

TEXAS HEALTH FACILITIES

COMMISSION et al., Petitioner,

v.

CHARTER MEDICAL–DALLAS, INC., Respondent.

No. C–2478. | Feb. 15, 1984.

Appeal was taken from orders of the Health Facilities

Commission granting certificates of need to two hospitals and

denying certificate of need for another hospital. The 250th

Judicial District Court, Travis County, Charles D. Mathews,

J., sustained the Commission's order. On appeal, the Austin

Court of Appeals, Third Supreme Judicial District, Powers,

J., 656 S.W.2d 928, reversed and remanded with instructions,

and appeal was taken. The Supreme Court, Barrow, J., held

that Commission's decision was supported by substantial

evidence and was not arbitrary or capricious.

Court of Appeals reversed and trial court affirmed.

Attorneys and Law Firms

*448 Jim Mattox, Atty. Gen., Steven L. Martin, Asst. Atty.

Gen., Austin, Law Offices of Earl Luna, Mary Mildord,

Dallas, Heath, Davis & McCalla, Dudley D. McCalla, Austin,

for petitioner.

Wood, Lucksinger & Epstein, Bruce Bigelow, Austin,

Trotter, Bondurant, Miller and Hishon, Glen A. Reed,

Atlanta, Ga., for respondent.

Opinion

BARROW, Justice.

This is an appeal from three consolidated orders of petitioner

Texas Health Facilities Commission. The orders of the

Commission granted certificates of need to petitioners

Healthcare International and Memorial Hospital of Garland

and denied a similar request made by respondent Charter

Medical-Dallas, Inc. The action of the Commission was

upheld by the trial court. The court of appeals, with one

justice dissenting, reversed the judgment of the trial court

and remanded the cause to the Commission for further

proceedings. Charter Medical-Dallas, Ins. v. Texas Health

Facilities Com'n, 656 S.W.2d 928. We reverse the judgment

of the court of appeals and affirm the judgment of the trial

court.

The Texas Health Facilities Commission is the Texas

administrative agency charged with governing the availability

of health care facilities in this state. See Health Planning

and Development Act, Tex.Rev.Civ.Stat.Ann. art. 4418h, §§

1.01–6.04 (HPDA). The Commission's primary function is

to prevent the development of new health care facilities

with services that are not needed or that cannot feasibly be

developed, staffed, or operated. This function is performed

primarily by the Commission's administration of a state

certificate of need program. Id., § 2.06. Under this program, a

person proposing to establish or modify a health care facility

must obtain a certificate of need from the Commission. Id.,

§ 3.01.

*449 In December of 1979 and January of 1980, the

parties to this appeal filed applications seeking certificates

of need for proposed projects. Memorial sought permission

to convert a portion of its general hospital into psychiatric

use; Healthcare proposed to construct a new facility, “Green

Oaks;” and Charter Medical applied for permission to

construct “Dallas Psychiatric Hospital.” All three projects

were planned for the area encompassing north Dallas

County and Collin County. These three applications were

consolidated by the Commission, and a hearing was held to

determine whether one or more of the applications should be

granted. The Commission rendered its orders in October of

1980 granting certificates of need to Healthcare and Memorial

and denying the application of Charter Medical.

The trial court rendered judgment sustaining the orders of

the Commission as to all three applications. This judgment

was reversed by the court of appeals and the cause remanded

to the Commission. The stated reason for the court of

appeals' decision is that the Commission's orders contain

insufficient underlying (basic) facts to support the ultimate

findings or conclusions of the Commission on the three

applications. The court of appeals held that the absence of

underlying facts rendered the Commission's ultimate findings

arbitrary and capricious. The court of appeals remanded all

three applications to the Commission since the Commission's

denial of Charter Medical's request may have been based upon

the granting of the other two applications.

In reaching its decision, the court of appeals set forth a lengthy

recitation of the facts and Commission rules applicable to this

appeal; we refer the reader to that opinion for a more complete
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)

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statement on these matters. We limit our discussion to the

specific points properly before this Court and upon which we

base our decision.

This administrative appeal arises under the authority of

the HPDA in conjunction with the Texas Administrative

Procedure and Texas Register Act. Tex.Rev.Civ.Stat.Ann.

art. 6252–13a (APTRA). Under the legislative scheme of the

APTRA, the manner of review of agency actions is governed

by the enabling statute in the area under adjudication.

APTRA, § 19(e); Southwestern Bell Telephone Co. v.

Public Utility Commission, 571 S.W.2d 503, 508 (Tex.1978).

Section 1.04 of the HPDA incorporates the APTRA “except

to the extent inconsistent with” the HPDA. Therefore, the

scope of judicial review in this case must be discerned from

both the HPDA and the APTRA.

In determining the role of the reviewing court, we must first

ascertain the legislative standards to which the Commission

must adhere in making its decisions, i.e., what findings and

conclusions the Commission must make before it properly

may grant a certificate of need. Subsection 3.10(a) of

the HPDA requires the Commission to promulgate rules

establishing criteria to determine whether an applicant is to be

issued a certificate of need for a proposed project. Subsection

3.10(b) sets forth five specific factors that must be included

among the Commission's criteria:

Criteria established by the commission must include at

least the following:

(1) whether a proposed project is necessary to meet the

healthcare needs of the community or population to be

served;

(2) whether a proposed project can be adequately staffed

and operated when completed;

(3) whether the cost of a proposed project is economically

feasible;

(4) if applicable, whether a proposed project meets the

special needs and circumstances for rural or sparsely

populated areas; and

(5) if applicable, whether the proposed project meets

special needs for special services or special facilities.

Thereafter, subsection 3.10(c) contains six factors that the

Commission “shall consider” in developing its criteria.

The Commission has promulgated “General Criteria for Use

in Certificate of NeedReviews” *450 that incorporate both

the factors required by subsection 3.10(b) and the factors that

the legislature has directed the Commission to “consider.” 1

These criteria include thirteen broad categories addressing

such matters as “Community Health Care Requirements,”

“Service Area Population,” and “Relationship to Existing

Services and Existing Facilities.”

Under these broad, general categories are approximately

fifty-four subcategories or factors that the Commission

considers relevant to its decision on the ultimate factors.

These subcategories are referred to by the court of appeals as

“intermediate facts.” The findings of the Commission on the

totality of these criteria form the basis of the Commission's

decision to grant or deny a certificate of need. “An applicant

or party who is aggrieved by an order of the commission ...

is entitled to judicial review under the substantial evidence

rule.” HPDA, § 3.15.

Having determined the prerequisites to agency action under

the HPDA, we look to the APTRA to determine its guidelines

for judicial review. Section 16(b) of the APTRA states: “A

final decision must include findings of fact and conclusions of

law, separately stated. Findings of fact, if set forth in statutory

language, must be accompanied by a concise and explicit

statement of the underlying facts supporting the findings.”

The exact manner of judicial review is stated in section 19(e):

The scope of judicial review of agency decisions is as

provided by the law under which review is sought.... Where

the law authorizes review under the substantial evidence

rule, ... the court may not substitute its judgment for that

of the agency as to the weight of the evidence on questions

committed to agency discretion but may affirm the decision

of the agency in whole or in part and shall reverse or

remand the case for further proceedings if substantial

rights of the appellant have been prejudiced because

the administrative findings, inferences, conclusions, or

decisions are:

(1) in violation of constitutional or statutory provisions;

(2) in excess of the statutory authority of the agency;

(3) made upon unlawful procedure;

(4) affected by other error of law;
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)

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(5) not reasonably supported by substantial evidence in

view of the reliable and probative evidence in the record

as a whole; or

(6) arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion.

The above-quoted portions of the APTRA are the primary

guidelines to be used by a court in reviewing the actions of

administrative agencies.

In this case, there are allegations challenging the adequacy

of the Commission's findings of fact, contending that the

Commission's action is not supported by substantial evidence,

and asserting that the Commission's orders are arbitrary and

capricious. The court of appeals purported to base its decision

solely on the conclusion that the Commission's findings of

fact are arbitrary and capricious. In its opinion, however,

the intermediate court touched upon each of the above three

contentions. Hence, we shall address each of these matters.

Findings of Fact

[1] The logical first step in evaluating the Commission's

order is to examine the agency's fact findings to determine

whether they meet the statutory requirements. See Auto

Convoy Co. v. Railroad Commission, 507 S.W.2d 718, 719

(Tex.1974). Section 16(b) of the APTRA requires that all

findings of fact, “if set forth in statutory *451 language,”

must be accompanied by a supporting statement of underlying

facts. We must determine the meaning of these words in the

present context.

In Lewis v. Gonzales County Savings and Loan Association,

474 S.W.2d 453 (Tex.1971), we were asked to construe an

analogous fact-finding requirement in the Savings and Loan

Act. Tex.Rev.Civ.Stat.Ann. art. 852a, § 11.11(4). Therein, we

held:

We are of the view this requirement

applies only to findings of fact in the

commissioner's orders which are “set

forth in statutory language.” [footnote

omitted]. When findings are made

in the language of the Rules and

Regulations that do not embody

statutory language, they need not be

accompanied by a concise and explicit

statement of the underlying facts.

Gonzales County, 474 S.W.2d at 457. We went on to explain

that, generally, statutory findings are broadly stated and

require discretion or judgment on the part of the agency

based on a multitude of factors. Conversely, non-statutory

findings usually are more factual in nature and carry with

them the supporting underlying facts. Thus, the latter need no

accompanying facts to support them.

Judicial review would be enhanced if all general conclusions

of an agency were accompanied by a statement of underlying

facts. The plain language of the statute, however, precludes

such a construction of section 16(b). By limiting the factfinding requirement to findings “set forth in statutory

language,” the legislature has expressed its intention in

this matter. We may not impose an additional fact-finding

requirement under the guise of statutory construction. Cf.

Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154, 158

(1960).

Gonzales County holds that an accompanying statement of

underlying facts is required when an ultimate finding of

fact embodies statutory language. This construction has been

followed in post-APTRA cases. See, e.g., Gage v. Railroad

Commission, 582 S.W.2d 410, 414 (Tex.1979); Imperial

American Resources Fund, Inc. v. Railroad Commission, 557

S.W.2d 280, 286 (Tex.1977). Therefore, we hold that section

16(b) of the APTRA requires an accompanying statement of

underlying facts only when the ultimate fact finding embodies

a mandatory fact finding set forth in the relevant enabling

act. 2 An agency may not avoid this statutory requirement

by simply rewording its criteria; section 16(b) extends to

all statutory fact findings that represent the criteria that the

legislature has directed the agency to consider in performing

its function.

[2] [3] [4] The characteristics of proper findings of fact,

as well as their purposes, are well established. Valid findings

of fact must be clear and specific. Gage, 582 S.W.2d at 414.

A mere conclusion or a recital of evidence is inadequate.

Thompson v. Railroad Commission, 150 Tex. 307, 240

S.W.2d 759, 761–62 (1951). The required underlying facts

may not be presumed from findings of a conclusional nature.

Morgan Drive Away, Inc. v. Railroad Commission, 498

S.W.2d 147, 152 (Tex.1973). In general, underlying findings

of fact must be such that the reviewing court can fairly

and reasonably say that the underlying findings support the
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)

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statutorily required criteria. Railroad Commission v. Entex,

Inc., 599 S.W.2d 292, 298 (Tex.1980); Railroad Commission

v. Graford Oil Corp., 557 S.W.2d 946, 950 (Tex.1977).

The underlying findings of fact required by the APTRA have

a substantial statutory purpose and are more than a technical

prerequisite. *452 Morgan Drive Away, Inc., 498 S.W.2d

at 150. This Court set forth the purposes of such findings of

fact in Miller v. Railroad Commission, 363 S.W.2d 244, 245–

46 (Tex.1962) as follows:

One purpose no doubt is to restrain any

disposition on the part of the [agency]

to grant a certificate without a full

consideration of the evidence and a

serious appraisal of the facts. Another

is to inform protestants of the facts

found so that they may intelligently

prepare and present an appeal to the

courts. Still another is to assist the

courts in properly exercising their

function of reviewing the order.

[5] [6] This Court has neither the right nor the authority

to lay out a precise form of findings to be made by the

Commission. Id. at 246. On the other hand, we may make

suggestions as to the form of the agency record in the

interest of proper judicial review. See Graford Oil Corp., 557

S.W.2d at 952 n. 6. Proper underlying (basic) findings of fact

should follow the guidelines we previously have noted: they

should be clear, specific, non-conclusory, and supportive of

the ultimate statutory finding. Mere recitals of testimony or

references to or summations of the evidence are improper.

Such findings should be stated as the agency's findings. The

findings should relate to material basic facts and should relate

to the ultimate statutory finding that they accompany. In

general, the findings of fact required by APTRA § 16(b)

should be sufficient to serve the overall purposes evident in

the legislative requirement that they be made.

[7] The record of this case discloses that the Commission

made almost five hundred findings of fact covering

approximately forty-eight pages. The orders of the

Commission includes ultimate findings on each of the

criteria required by HPDA section 3.10(b). In addition, the

Commission's findings contain numerous underlying facts in

support of these statutory findings. Many of these findings

do not satisfy the requirements previously stated since they

are nothing more than recitals of evidence. Nevertheless,

there are sufficient findings such that we can fairly and

reasonably say that the underlying or basic facts support

the Commission's conclusions on the ultimate or statutory

criteria. We hold, therefore, that the underlying findings of

fact made by the Commission satisfy the requirements of

section 16(b) of the APTRA.

The Substantial Evidence Rule

[8] [9] The APTRA codifies the principle of judicial

review under the substantial evidence rule. Section 19(e)(5)

authorizes a reviewing court to test an agency's findings,

inferences, conclusions, and decisions to determine whether

they are reasonably supported by substantial evidence in

view of the reliable and probative evidence in the record

as a whole. See Railroad Commission v. Shell Oil Co., 139

Tex. 66, 161 S.W.2d 1022, 1029–30 (1942). In applying the

test, the court is prohibited from substituting its judgment

for that of the agency as to the weight of the evidence

on questions committed to agency discretion. See Gerst v.

Guardian Savings and Loan Association, 434 S.W.2d 113,

115 (Tex.1968). The reviewing court may reverse an agency

decision because of the absence of substantial evidence only if

such absence has prejudiced substantial rights of the litigant.

APTRA, § 19(e).

[10] [11] [12] Although substantial evidence is more than

a mere scintilla, Alamo Express, Inc. v. Union City Transfer,

158 Tex. 234, 309 S.W.2d 815, 823 (1958), the evidence in

the record actually may preponderate against the decision of

the agency and nonetheless amount to substantial evidence.

Lewis v. Metropolitan Savings and Loan Association, 550

S.W.2d 11, 13 (Tex.1977). The true test is not whether the

agency reached the correct conclusion, but whether some

reasonable basis exists in the record for the action taken by

the agency. Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966).

A reviewing court is not bound by the reasons given by an

agency in its order, provided there is a valid basis for the

action taken by the agency. *453 Railroad Commission v.

City of Austin, 524 S.W.2d 262, 279 (Tex.1975). Thus, the

agency's action will be sustained if the evidence is such that

reasonable minds could have reached the conclusion that

the agency must have reached in order to justify its action.

Suburban Utility Corp. v. Public Utility Commission, 652

S.W.2d 358, 364 (Tex.1983).

[13] The findings, inferences, conclusions, and decisions

of an administrative agency are presumed to be supported
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)

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by substantial evidence, and the burden is on the contestant

to prove otherwise. Imperial American Resources Fund, Inc.

v. Railroad Commission, 557 S.W.2d 280, 286 (Tex.1977).

Hence, if there is evidence to support either affirmative or

negative findings on a specific matter, the decision of the

agency must be upheld. Gerst v. Goldsbury, 434 S.W.2d 665,

667 (Tex.1968); see also Lewis v. Jacksonville Building and

Loan Association, 540 S.W.2d 307, 311 (Tex.1976).

[14] The record before this Court is extensive and contains

substantial information relevant to the Commission's inquiry.

This controversy was hotly contested, and the record contains

evidence favoring all three applicants. We will address one

statutory criterion that supports the Commission's decision in

this case. Under HPDA section 3.10(b)(1), the Commission

considers “whether a proposed project is necessary to meet

the healthcare needs of the community or population to be

served....” The Commission found that Memorial and Green

Oaks were necessary, but that Charter Medical was not.

On judicial review, we look first to the underlying findings of

fact made in support of the ultimate finding of fact contrary

to Charter Medical's position. Factors unfavorable to Charter

Medical include the following: Charter Medical would not

be near or connected with a general hospital and ambulance

service would be required to transfer a patient to a general

hospital for medical treatment; Charter Medical was not

accessible by public transportation; Charter Medical failed to

establish physician interest in its facility similar to the interest

expressed in the other two facilities by testifying physicians;

and Charter Medical failed to support its projected occupancy

rates with competent evidence. Findings on these matters

were relatively more favorable regarding both Memorial

and Green Oaks. Other material findings concerned the

probable absence of certain recreational facilities at Charter

Medical, the unnecessary duplication of specified services

and equipment by Charter Medical, and the negative report on

Charter Medical by the Texas Area 5 Health Systems Agency.

Because the Commission correctly found that Charter

Medical failed to establish that its facility was necessary to

meet the healthcare needs of the community, as required by

the statute, the Commission's order must be upheld. Cf. Gerst

v. Goldsbury, 434 S.W.2d at 667. We note that many of the

Commission's 213 findings on this criterion are improper and

irrelevant and were not considered by this Court. Moreover,

we doubt the sufficiency of other ultimate findings made by

the Commission, although we reach no conclusion thereon.

We do admonish the Commission to adhere to the guidelines

we have set forth previously regarding findings of fact.

Our second inquiry concerns whether the findings, inferences,

and conclusions that relate to health care needs are supported

by substantial evidence. We hold that they are. Our

conclusion is based upon the principles of judicial review that

we have reiterated herein. As required by APTRA section

19(e), we have tested each material finding, inference, and

conclusion for evidentiary support. There is in the record

substantial evidence to support the underlying facts discussed

above and the ultimate fact to which they relate.

Arbitrary and Capricious Standard of Review

[15] The court of appeals held that the validity of an

agency's inferences of ultimate facts or its reasoning process

is judged by whether such inferences are arbitrary *454 and

capricious. The court also concluded that the sole purpose

of the substantial evidence rule is to measure the validity

of the process by which the agency has inferred stated

basic facts from the evidence and matters officially noticed.

Our discussion of the substantial evidence rule discloses the

erroneous nature of these conclusions. Because the court

of appeals has, in effect, engaged in a substantial evidence

review of the Commission's order, we also have addressed

that point. We now turn to a discussion of the arbitrary and

capricious standard of review.

Throughout the long history of the substantial evidence

rule the existence of substantial evidence has been equated

with fair and reasonable conduct on the part of the

agency. Conversely, agency decisions that are unsupported

by substantial evidence have been deemed arbitrary and

capricious. Thus, the two terms have many times been

considered two sides of the same coin. See, e.g., Benson

v. San Antonio Savings Association, 374 S.W.2d 423, 427

(Tex.1963); City Savings Association v. Security Savings

and Loan Association of Dickinson, 560 S.W.2d 930, 932

(Tex.1978). On the other hand, cases have arisen in which a

line of demarcation was drawn between these two concepts.

In Lewis v. Metropolitan Savings and Loan Association,

550 S.W.2d 11 (Tex.1977), this Court was faced with an

allegation that the agency action in question, in admitting and

excluding evidence, had resulted in a denial of due process of

law. The agency contended that the only issue on appeal was

whether the decision was supported by substantial evidence;
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)

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a denial of due process would not provide a basis for reversal

so long as the agency's decision was upheld under substantial

evidence scrutiny. We held that instances may arise in which

the agency's action is supported by substantial evidence, but

is arbitrary and capricious nonetheless. One such instance is

when a denial of due process has resulted in the prejudice of

substantial rights of a litigant.

Another example of arbitrary action by an agency is Railroad

Commission v. Alamo Express, 158 Tex. 68, 308 S.W.2d 843

(1958). Therein, this Court found that the agency had acted

in an arbitrary manner when it failed totally to make findings

of fact and instead based its decision on findings in another

case. Arbitrary and capricious agency action also may be

found when an agency improperly bases its decision on nonstatutory criteria. Public Utility Commission v. South Plains

Electric Cooperative, Inc., 635 S.W.2d 954, 957 (Tex.App.

—Austin 1982, writ ref'd n.r.e.).

In enacting the APTRA, it is clear that the legislature intended

to distinguish between agency action that is not supported

by substantial evidence and agency action that is arbitrary

and capricious. We construe section 19(e)(6) of the APTRA

to be a safeguard against agency conduct that is arbitrary

or constitutes an abuse of discretion although that conduct

does not amount to a violation of any other provision of

the APTRA or the agency's enabling act. The arbitrary and

capricious standard of review historically has been construed

narrowly, and we do not think that the legislature intended

it to be interpreted as a broad, all-encompassing standard

for reviewing the rationale of agency actions. Under the

foregoing definition of the arbitrary and capricious standard

of review, we hold that the Commission's orders in this case

are not arbitrary nor do they constitute an abuse of discretion.

We conclude that the findings of fact made by the

Commission comply with section 16(b) of the APTRA.

The Commission's findings, inferences, conclusions, and

decisions are supported by substantial evidence and do not

constitute an abuse of discretion.

The judgment of the court of appeals is reversed, and the

judgment of the trial court is affirmed.

All Citations

665 S.W.2d 446

Footnotes

1 The matters required by section 3.10(b) to be included within the Commission's criteria may be found primarily in

subsections 513.5, 513.11, 513.13, and 513.17 of Title 25 of the Texas Administrative Code. The non-mandatory factors

are scattered throughout the other subsections of section 513. See Tex. Health Fac. Comm'n, 25 Tex.Admin.Code §§

513.1–513.21 (May 1, 1982) (compiling Tex. Health Fac. Comm'n Rules 315.19.01.010 to .130, 3 Tex.Reg. 1361–64

(1978), as amended 4 Tex.Reg. 2949–50 (1979)).

2 The HPDA does not require that the Commission make findings on certain factors before it may act; rather, the statute

directs the Commission to include certain matters within its criteria for review and directs the Commission to act upon

applications within established time limits. HPDA, §§ 3.10, 3.11. Nonetheless, the factors that the Commission must

include among its criteria are the type of factors that fall within the scope of section 16(b) so that these findings of fact must

be accompanied by a statement of underlying facts. Cf. Miller v. Railroad Commission, 363 S.W.2d 244, 245 (Tex.1962).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

Court of Appeals of Texas,

Houston (1st Dist.).

Doreatha WALKER, Appellant

v.

HITCHCOCK INDEPENDENT

SCHOOL DISTRICT, Appellee.

No. 01–11–00797–CV. | July 16, 2013.

On Appeal from the 405th District Court, Galveston County,

Texas, Trial Court Case No. 09–CV–1439.

Attorneys and Law Firms

Doreatha Walker, pro se.

Christopher B. Gilbert, for Hitchcock Independent School

District.

Panel consists of Justices KEYES, MASSENGALE, and

BROWN.

MEMORANDUM OPINION

MICHAEL MASSENGALE, Justice.

*1 Appellant Doreatha Walker sued the Hitchcock

Independent School District for suspending her and

recommending termination from her job as Head Start

Director. She contended that the District had retaliated against

her for reporting unsafe mold levels and other improprieties.

The jury found that Walker had not made those reports in

good faith or that the reports were not the cause of her

suspension and recommendation of termination. The trial

court entered judgment in favor of the school district.

On appeal, Walker alleges that the trial court erroneously

charged the jury, improperly admitted evidence, incorrectly

applied the res judicata doctrine, and unfairly imposed time

limits during the trial. She also complains that her directed

verdict motion was improperly denied, and she challenges the

sufficiency of the evidence to support the judgment. Finally,

Walker questions the composition and conduct of the jury.

We affirm the trial court's judgment.

Background

Doreatha Walker was hired as Head Start Director on a

one-year probationary contract. In February 2009, several

months into her tenure and after concerns were raised about

high levels of mold in the Head Start building, District

Superintendent Dr. Michael Bergman held a meeting with

Head Start staff and parents to clarify the progress that had

been made on addressing the mold problem. A few days later,

Walker filed a workers' compensation form indicating she

would be going on leave for mold-related health reasons. She

also filed a grievance against Bergman for allegedly yelling at

her during the meeting, although no one present at the meeting

remembered his doing so.

For the rest of February and most of March, Walker was

absent on medical leave. Although absent, she continued to

email Bergman and Head Start board members about the

mold issue and her fear of losing her job in retaliation for

reporting the issue. In early March, days before her contract

was eligible for renewal, she threatened Bergman with a

wrongful termination suit if the board did not vote to extend

her employment as Head Start director. Despite concerns that

Walker was not getting along well with Head Start board

members and District personnel, Bergman recommended

Walker's employment be extended for another year. The next

day Walker rescinded her grievance against Bergman.

A few weeks later, Walker attempted to return to work at

the Head Start building. However, Bergman had directed

her not to return to work because her medical leave form

stated that she could not yet return to the Head Start building,

which was the only place she could perform her duties as

director. When Walker nevertheless arrived on campus, an

assistant superintendent directed her to leave on Bergman's

instructions. Walker refused to obey the directive, the police

were called, and she was escorted off the campus. After the

incident, Walker informed Bergman that she felt the removal

from campus was in retaliation for her raising the mold

issue and again threatened to file suit if anyone attempted to

fire her. Bergman responded by warning Walker that further

unprofessional and insubordinate conduct would result in a

recommendation that her contract be terminated.
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*2 Walker's relations with Head Start board members and

staff deteriorated throughout the following month. Rather

than heed Bergman's earlier advice to listen to others and

to cooperate with Head Start board members, Walker acted

imperiously and took control of a Head Start board meeting—

a meeting which she attended only at the invitation of board

members. The next day the president of the Head Start policy

board declared her refusal to attend any future meetings with

Walker. Then, after a meeting during which Walker verbally

accosted her, the Head Start staff administrative assistant

filed a harassment grievance against her. Subsequently, the

secretary of the Head Start policy board, a parent volunteer,

resigned, followed by the early retirement of the Head Start

nurse a few weeks later. Each expressed frustration with

Walker as the reason for leaving.

Soon thereafter, on May 1, Bergman suspended Walker

by placing her on administrative leave with pay. He

was concerned about her failure to obey directives, her

insubordination, and the grievances and resignations of Head

Start volunteers and staff. Two days later, Walker filed

a report with the Texas Education Agency alleging the

District was claiming Head Start students for reimbursement

of transportation services that the District never provided.

After a District board meeting at which Bergman failed

to recommend that the board renew her contract, Walker

filed another grievance against Bergman. She alleged that

Bergman had retaliated against her for making whistleblower

reports about the alleged violations of transportation

reimbursement rules and her mold complaints.

Three months later, the District board accepted Bergman's

recommendation to terminate Walker's contract. Walker

appealed the termination to the TEA. After a hearing,

the TEA hearing examiner agreed with the District's

proposed termination, documenting Walker's failure to follow

directives, disrespect for authority, and imperious tone with

superiors, subordinates, and parent volunteers. Thereafter,

the District board officially terminated Walker. The Texas

Commissioner of Education upheld the termination.

After the board agreed to terminate her contract, Walker

filed suit against the District. She represented herself at

all stages of the trial court proceedings. She alleged that

her May 1 suspension violated the Texas Whistleblower

Act, TEX. GOV'T CODE ANN. §§ 554.001–.010 (West

2012). She alleged that Bergman violated the Whistleblower

Act because he had suspended her for complaining to the

local, state, and federal health agencies about the mold in

the Head Start building and for her allegations that the

District had improperly claimed Head Start students for state

transportation reimbursement.

The trial court determined that the findings of the TEA

hearing examiner and the education commissioner from the

termination appeal could be used in Walker's whistleblower

suit. After a ten-day trial, two questions were submitted to the

jury. Question One asked whether Walker's report of possible

improprieties in how the District sought reimbursement for

transportation was made in good faith and was a cause for

Bergman's recommendation that she be terminated. Question

Two asked whether Walker's reports of mold to health

agencies were made in good faith and were a cause of

her suspension with pay. The jury answered “No” to both

questions, and the trial court entered judgment in favor of the

District. Walker then filed this appeal.

Analysis

*3 Pro se litigants must comply with all applicable laws

and rules of procedures, and they are held to the same

standards as are licensed attorneys. See Mansfield State

Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.1978); Kanow

v. Brownshadel, 691 S.W.2d 804, 806 (Tex.App.-Houston

[1st Dist.] 1985, no writ). A pro se litigant is required

to properly present her case on appeal, and we do not

make allowances or apply different standards for litigants

appearing without the advice of counsel. See Morris v. Am.

Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex.App.-

Houston [1st Dist.] 2011, no pet.). The Rules of Appellate

Procedure require appellate briefs to contain clear and concise

arguments with appropriate citations to the record and

supporting authorities. TEX.R.APP. P. 38.1(i). Nevertheless

we construe briefs liberally, and substantial compliance with

the rules is sufficient. SeeTEX.R.APP. P. 38.9.

In her brief, Walker raises 29 points of error. Many of these

lack supporting authority or citations to the record. Other

points refer to hundreds or thousands of pages from the

record, which does not substantially comply with the briefing

rules. See Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d

197, 200–01 (Tex.1955) (holding that it is not the duty of

the courts of appeals to independently search a voluminous

record to find evidence in support of a theory); Labrador Oil

Co. v. Norton Drilling Co., 1 S.W.3d 795, 803 (Tex.App.-

Amarillo 1999, no pet.). Many of the points of error are

duplicative or incapable of being distinguished from other
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points of error. But construing Walker's brief liberally, we

discern seven main issues. Walker complains of (1) error in

the jury charge, (2) incorrect application of the res judicata

doctrine, (3) improper admission of evidence, (4) unfair time

limits imposed during the trial, (5) denial of her directed

verdict motion, (6) the sufficiency of the evidence to support

the judgment, and (7) the composition and conduct of the jury.

I. Jury charge

Walker challenges the jury charge and instructions. She

argues that the jury should have had more instructions about

the causation element of her whistleblower claim, including

a specific instruction that an incorrect but good faith belief

that a law was violated is sufficient for a whistleblower

claim. She also argues that the instruction for actual damages

should have used her preferred wording, and that the damages

questions should have included an option for the jury to award

injunctive relief reinstating her to her former position.

We review a trial court's decision to submit or refuse a

particular jury instruction for abuse of discretion. In re

V.L.K., 24 S.W.3d 338, 341 (Tex.2000). The trial court

has considerable discretion to determine proper instructions.

Id. An appellate court will not reverse a judgment for

charge error unless that error “probably caused the rendition

of an improper judgment” or “probably prevented the

petitioner from properly presenting the case to the appellate

courts.”Thota v. Young, 366 S.W.3d 678, 687 (Tex.2012)

(citing TEX.R.APP. P. 44.1(a)). When the findings of

the jury are sufficient to support the judgment, error in

omitting an issue is harmless. Shupe v. Lingafelter, 192

S.W.3d 577, 579 (Tex.2006). The trial court should refuse to

submit unnecessary instructions even if they represent correct

statements of the law. Rigdon Marine Corp. v. Roberts, 270

S.W.3d 220, 228 (Tex.App.-Texarkana 2008, pet. denied);

Riggs v. Sentry Ins., 821 S.W.2d 701, 704–05 (Tex.App.-

Houston [14th Dist.] 1991, writ denied).

a. Liability questions

*4 To prove a claim under the Whistleblower Act, a public

employee must demonstrate that she reported a violation of

law in good faith and that the adverse employment action

by the employer would not have occurred had the report not

been made. City of Houston v. Levingston, 221 S.W.3d 204,

226 (Tex.App.-Houston [1st Dist.] 2006, no pet.)(citing City

of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.2000));

see alsoTEX. GOV'T CODE ANN. §§ 554.002, 554.004

(West 2012) (requiring good faith report to authorities and

placing burden of proof on public-employee plaintiff). To

meet the causation requirement, the employee is not required

to show that her reports of illegal conduct were the sole

reason for the employer's adverse action. Tex. Dep't of Human

Servs. v. Hinds, 904 S.W.2d 629, 634 (Tex.1995). Instead,

she must present some evidence that “but for” her reports,

the employer's suspension or termination would not have

occurred when it did. Id. at 636;see also Zimlich, 29 S.W.3d

at 68.

In this case the trial court submitted two Whistleblower

Act questions based on the Texas Pattern Jury Charge. The

questions asked the jury if Walker's reports to the authorities

were made in good faith and were a cause of her suspension

and the recommendation of termination. 1 Walker requested

an alternate charge that included slightly different wording,

left out the good-faith element in the mold-report question,

and omitted the good-faith instruction. 2 However, Walker

does not explain how the questions that were in the charge

were incorrect or resulted in the rendition of an improper

judgment. See Shupe, 192 S.W.3d at 579–80 (explaining

how even improper instructions are harmless when there are

answers sufficient to support the judgment).

The trial court acted within its discretion. The broad-form

charge used in this case is appropriate for whistleblower

cases. See Zimlich, 29 S.W.3d at 68, 71 (upholding a jury

verdict using a broad-form submission). The charge includes

the good-faith and causation elements, while Walker's

proposed question on her report about mold lacked the goodfaith element required by the Whistleblower Act. SeeTEX.

GOV'T CODE ANN. § 554.002; Levingston, 221 S.W.3d

at 226.Her mold question also unnecessarily required that

she establish that the mold reports were “the” cause of

her suspension, rather than merely “a” cause. See Hinds,

904 S.W.2d at 634–36 (holding that the employee is not

required to prove making a report was the sole cause of the

employer's adverse action). Thus, the trial court did not abuse

its discretion in not adopting Walker's proposed charge.

For the first time on appeal, Walker also complains that

the submitted charge was incorrect because it omitted

additional instructions on causation and definitions from

the Whistleblower Act. Preservation of the issue of an

omitted instruction, however, requires that the appellant

tender a written request to the trial court for submission

of the instruction that is “in substantially correct wording.”

SeeTEX.R. CIV. P. 278; Union Pac. R.R. Co. v. Williams,

85 S.W.3d 162, 166 (Tex.2002); see alsoTEX.R.APP. P.
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33.1(a) (preserving a complaint for appellate review requires

the complaint be made to the trial court). Because Walker

did not submit a request for these additional instructions or

definitions to the trial court, she has failed to preserve her

complaint for appellate review.

b. Damages question

*5 Walker next complains that the damages section of

the jury charge did not include an option for reinstatement

and misstated the proper standard for actual damages. These

complaints fail to demonstrate harm, because any alleged

error with respect to damages did not affect the rendition

of the judgment against Walker when the jury did not find

in her favor for liability. See Thota, 366 S.W.3d at 686–87;

Shupe, 192 S.W.3d at 579–80;see also City of Brownsville

v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995) (noting an

improper question is immaterial and harmless when the

answer cannot alter the effect of a verdict). Walker also cannot

complain of the actual-damages measure because the trial

court adopted her proposed measure of damages. SeeTEX.R.

CRV. P. 274 (requiring a party disputing the charge to point

out distinctly the objectionable matter for each part of the

charge the party objects to); In re A.V., 113 S.W.3d 355, 362–

63 (Tex.2003).

For the foregoing reasons, we overrule Walker's points of

error 1, 2, 11–14, 17, 19, and 23.

II. Collateral estoppel

Walker alleges that the District was allowed to use material

from her administrative proceedings while she was not and

that this was an improper application of the res judicata

and collateral estoppel doctrines. 3Before trial, Walker had

appealed her termination in administrative proceedings

before a TEA hearing examiner and commissioner of

education. Under the doctrine of collateral estoppel, the trial

court allowed the parties to present the findings from the

administrative hearing, but not to dispute those findings.

In the administrative action, it was found that Walker had

increasingly poor relations with her superiors and other adults

involved in the Head Start program in the months before

her suspension. The hearing examiner found that Walker's

policies and behavior violated several of her job requirements

and described several incidents in which her attitude led

to conflict, such as when she refused to leave the Head

Start building and had to be escorted away by police. From

these findings, the examiner concluded that the District was

authorized to terminate her probationary contract.

Collateral estoppel, also known as issue preclusion, prevents

relitigation of particular issues already resolved in a prior

suit. Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav.,

837 S.W.2d 627, 628 (Tex.1992). A party asserting collateral

estoppel must establish that (1) the facts sought to be litigated

in the second action were fully and fairly litigated in the

first action, (2) those facts were essential to the judgment in

the first action, and (3) the parties were cast as adversaries

in the first action. John G. & Marie Stella Kenedy Mem'l

Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex.2002); Houtex

Ready Mix Concrete & Materials v. Eagle Constr. & Envtl.

Servs., L.P., 226 S.W.3d 514, 519 (Tex.App.-Houston [1st

Dist.] 2006, no pet.). To invoke collateral estoppel on the

basis of a prior administrative order, a party must show the

administrative agency was acting in a judicial capacity and

had jurisdiction to resolve the disputed issues of fact, which

the parties had an adequate opportunity to litigate. In re

Edwards Aquifer Auth., 217 S.W.3d 581, 588 (Tex.App.-San

Antonio 2006, no pet.).

*6 The TEA has jurisdiction over an educator's disputed

employment contract, as the agency has jurisdiction over

disputes involving any person aggrieved by the actions of

any board of education. Muckelroy v. Richardson Indep.

Sch. Dist., 884 S.W.2d 825, 831 (Tex.App.-Dallas 1994, writ

denied). Since the agency issued a final decision after Walker

and the District had an adequate opportunity to fully and

fairly litigate her termination, the hearing examiner's findings

were binding on the trial court. See id.; see also Mullinax v.

Texarkana Indep. Sch. Dist., 252 F.3d 1356 (5th Cir.2001)

(TEA hearing examiner's findings made in judicial capacity

entitled to preclusive effect).

The hearing examiner found that Walker was validly

terminated due to her “intransigence, duplicity, and defiance

of authority” in almost every conflict between her and District

employees. The examiner catalogued the numerous disputes

and incidents that took place in the spring of 2009 which

preceded Walker's suspension and termination. The course

of these events was relevant to the District's argument that

Walker's insubordination, not her whistleblowing, was the

cause of her suspension and ultimate termination. Because

the issue of why she was terminated was fully and fairly

litigated in the administrative proceeding, the District was

entitled to the preclusive effect of those findings. Walker does

not indicate where in the record that the District did anything

more than reference the examiner's findings, as it was entitled

to do. Because she attempted to dispute the administrative
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)

2013 WL 3771302

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

findings, however, the trial court acted properly in stopping

her from relitigating the issue of why she was terminated.

Thus, the trial court did not err in its application of the

collateral estoppel doctrine.

Accordingly, we overrule Walker's points of error 3, 5, 15,

and 29. 4

III. Evidentiary rulings

Walker challenges several of the trial court's evidentiary

rulings. She complains that the court refused to admit a

newspaper article about mold in the Head Start building, and

that it admitted several email messages offered by the District

over her hearsay objection.

The inclusion and exclusion of evidence is committed to the

trial court's sound discretion. Tex. Dep't of Transp. v. Able,

35 S.W.3d 608, 617 (Tex.2000). The party seeking to reverse

a judgment based on evidentiary error must prove that the

error probably resulted in an improper judgment, usually by

showing that the judgment turns on the particular evidence

excluded or admitted. Id.;City of Brownsville, 897 S.W.2d at

753–54.We review the entire record to determine whether the

complaining party has demonstrated that the judgment turns

on the particular evidence admitted. Bay Area Healthcare

Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007).

With respect to the news reports unsuccessfully offered into

evidence by Walker, newspaper articles that are offered to

prove the truth of what the article is reporting are inadmissible

hearsay. TEX.R. EVID. 801(d); Deramus v. Thornton, 160

Tex. 494, 333 S.W.2d 824, 831 (Tex.1960). Walker offered

them to prove that there was mold in the Head Start

building-an inadmissible hearsay purpose. TEX.R. EVID.

802. Because the articles were inadmissible hearsay, the trial

court did not abuse its discretion in refusing their admission.

The newspaper articles in question were also duplicative of

facts in evidence. They show only that there was mold in the

Head Start building, which was an undisputed fact in this case.

*7 Walker complains that the trial court admitted several

email messages to which she objected. The messages

were reports from several people involved in the Head

Start program which included complaints about Walker's

argumentativeness and strange behavior. The trial court did

not err in admitting these messages because they were offered

to prove that Bergman received reports of the contentiousness

and conflict caused by Walker's management of the Head

Start program. See, e.g., In re Bexar Cnty. Criminal Dist.

Attorney's Office, 224 S.W.3d 182, 188–89 (Tex.2007)

(statements are admissible if offered for their effect on the

listener rather than the truth of the matter asserted).

Walker also complains that the trial court prevented her from

pursuing a line of questioning into the District's alleged past

retaliation against other employees. The trial court sustained

the District's objection because the alleged retaliation was not

related to Walker's whistleblower claims. Walker does not

indicate how this testimony would have altered the judgment

in the case and we find any possible error to be harmless.

Because the trial court did not err in admitting or excluding

the evidence it did, and in any case no harm has been shown,

we overrule Walker's points of error 6,7, 16, and 20.

IV. Time limits on questioning

Walker complains that the trial court admonished her to

speed up the presentation of her case, imposed time limits

on the trial length, and shortened her time for questioning

witnesses and presenting her deposition testimony. The trial

court has great discretion in the conduct of the trial.Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.2001). A

trial judge is afforded the discretion to express himself while

controlling the trial. Bott v. Bott, 962 S.W.2d 626, 631

(Tex.App.Houston [14th Dist.] 1997, no pet.). A trial court

may properly intervene to maintain control in the courtroom,

to expedite the trial, and to prevent what it considers to be a

waste of time.Francis, 46 S.W.3d at 241; Hoggett v. Brown,

971 S.W.2d 472, 495 (Tex.App.-Houston [14th Dist.] 1997,

pet. denied); see also Landis v. N. Am. Co., 299 U.S. 248,

254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (a trial court has

the inherent power to control the disposition of cases with

economy of time and effort for itself, for counsel, and for

litigants).

The trial court in this case acted within its authority

in managing the trial's time limits. The trial court often

attempted to help Walker by encouraging her to speed up her

questioning to keep the jury's interest. The trial judge warned

her that the trial was taking longer than anticipated and that

he might have to impose time limits. When the trial court did

begin to impose time limits, it was to the detriment of the

District's time for presenting its case in chief, not Walker's.

Walker spent a vastly larger portion of the trial's length

questioning witnesses than the District did. Critically, Walker

identifies no particular instance when she was prevented from

finishing an important line of questions or she was unable to
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)

2013 WL 3771302

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

present important evidence due to a time limit imposed by the

trial court.

*8 Accordingly, we overrule points of error 8 and 24 to 27.

V. Denial of Walker's request for directed verdict

Walker complains that the trial court denied her motion for a

directed verdict. Specifically, she argues that she should have

had the opportunity to orally argue her motion, which was an

opportunity afforded to the defendant but not to her.

The record does not reflect that Walker was denied an

opportunity to argue her motion. The District was permitted

to argue its motion for directed verdict orally, but Walker

submitted a written argument in support of her motion, so

she did not need the opportunity to make an additional oral

argument. See Dillard v. Broyles, 633 S.W.2d 636, 645

(Tex.App.-Corpus Christi 1982, writ ref'd n.r.e.) (Texas Rule

of Civil Procedure 268 only requires specificity in directed

verdict motions, and this can be met with an oral or written

argument). She also did not object to the trial court about

her argument being transmitted in writing rather than orally.

SeeTEX.R.APP. P. 33.1.

We overrule Walker's points of error 4, 9, and 10.

VI. Sufficiency of the evidence

Walker argues the evidence was not legally and factually

sufficient to support the jury verdict. In reviewing a verdict

for legal sufficiency, we “must view the evidence in the light

most favorable to the verdict, crediting favorable evidence if

reasonable jurors could, and disregarding contrary evidence

unless reasonable jurors could not.”City of Keller v. Wilson,

168 S.W.3d 802, 807 (Tex.2005). If there is more than

a scintilla of evidence to support the challenged finding,

we must uphold it. Harris Cnty. v. Norris, 240 S.W.3d

255, 258 (Tex.App.-Houston [1st Dist.] 2006, pet. denied)

(citing Formosa Plastics Corp. USA v. Presidio Eng'rs

& Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998)). In

reviewing a factual sufficiency complaint, we must first

examine all of the evidence. Lofton v. Tex. Brine Corp., 720

S.W.2d 804, 805 (Tex.1986); Airgas–Sw., Inc. v. IWS Gas &

Supply of Tex., Ltd., 390 S.W.3d 472, 478 (Tex.App.Houston

[1st Dist.] 2012, pet. denied). After considering and weighing

all the evidence, we set aside the fact finding only if it is so

contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust. Marine Overseas Corp. v. Ellis, 971

S.W.2d 402, 406–07 (Tex.1998); Cain v. Bain, 709 S.W.2d

175, 176 (Tex.1986); Airgas–Sw., 390 S.W.3d at 478.The

jurors are the sole judges of the credibility of the witnesses

and the weight to be given to their testimony. City of Keller,

168 S.W.3d at 819.

To prove a claim under the Whistleblower Act, an employee

must prove by a preponderance of the evidence that the

retaliatory conduct by the employer would not have occurred

when it did if the employee had not reported the violation

of law. Zimlich, 29 S.W.3d at 67.There is a rebuttable

presumption that the report of a law violation caused the

employee's termination or suspension if the termination or

suspension occurs no later than 90 days after the report.

TEX. GOV'T CODE ANN. § 554.004(a). If the employer

presents positive evidence to rebut the presumption that the

adverse employment action was due to the report, then the

presumption of a causal connection between the report and

termination or suspension is disregarded. Tex. A & M Univ. v.

Chambers, 31 S.W.3d 780, 784 (Tex.App.-Austin 2000, pet.

denied). Then the employee must produce evidence to support

the contention that reporting the violation of law caused the

employer to retaliate. Zimlich, 29 S.W.3d at 68.

*9 The District presented ample evidence to rebut the

presumption that Walker was suspended and recommended

for termination because she filed reports of safety and

funding violations. In addition to numerous emails and letters

describing Walker's poor working relationship with others

associated with the Head Start program, numerous witnesses

testified that she instigated conflict and problems as Head

Start director. The jurors were able to weigh Bergman's

testimony that he had not suspended Walker or recommended

termination due to her filing the reports. See City of Keller,

168 S.W.3d at 819.The findings of the administrative hearing

examiner attested to the same problems with Walker's

conduct. There was also evidence that Walker threatened

to file suit against the District if she were fired, and then

dropped the threat when Bergman recommended renewal of

her contract. This supports the conclusion that Walker had

not necessarily filed the reports in good faith, but instead as

a means of pressuring Bergman.

Accordingly, there was sufficient evidence, both legally and

factually, to support the jury's verdict that Walker was not

suspended for whistleblowing. We overrule Walker's points

of error 18 and 22.

VII. Jury issues
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)

2013 WL 3771302

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Walker questions the composition and conduct of the jury

in her points of error 21 and 28. She alleges that the trial

court abused its discretion by seating an alternate juror, who

was only seated after she had called most of her witnesses.

Additionally, she questions the propriety of the jurors sending

notes to the judge regarding the length of the trial.

There is no requirement that the twelve original jurors

render the ultimate verdict with no substitutions. See Schlafly

v. Schlafly, 33 S.W.3d 863, 869–70 (Tex.App.-Houston

[14th Dist.] 2000, pet. denied) (noting neither the Texas

Constitution nor the Texas Rules of Civil Procedure prevent

seating alternate jurors). Walker had the same opportunity

to conduct voir dire on the alternate juror as on the original

jurors, and she failed to object to seating the alternate juror

during the trial. See id.(considering these factors in holding

the seating of an alternate juror harmless). And jurors are

allowed to communicate using notes with the trial court.

SeeTEX.R. CIV. P. 285 (allowing jury to communicate with

the court either orally or in writing).

Any error in replacing the original juror with an alternate or

allowing the jury to send notes to the judge was harmless

in this case. We cannot reverse a judgment unless the error

probably caused the rendition of an improper judgment.

SeeTEX.R.APP. P. 44.1. The alternate juror in this case was

seated, not after the testimony of many of her witnesses as

Walker alleges, but on the second day of trial and without

objection from Walker. The jury verdict against Walker was

unanimous, so even if the original juror had voted in her favor,

the judgment against her would stand. SeeTEX.R. CIV. P. 292

(allowing non-unanimous verdicts or unanimous verdicts by

fewer than twelve jurors); Yanes v. Sowards, 996 S.W.2d 849,

852 (Tex.1999) (upholding trial court's decision to proceed

with trial and render judgment with only eleven jurors after

dismissing juror due to his grandfather's illness).

*10 Accordingly, we overrule Walker's points of error 21

and 28.

Conclusion

Having overruled all of Walker's points of error, we affirm

the judgment of the trial court.

All Citations

Not Reported in S.W.3d, 2013 WL 3771302

Footnotes

1 Specifically, Question One stated:

Was Doreatha Walker's report to the Texas Education Agency (“TEA”) on May 3, 2009, in which she accused the

District of improperly reporting Head Start students to the State to gain additional transportation funding, made in

good faith and a cause of Dr. Michael Bergman's statements to the Board of Trustees at the May 19, 2009 Board

meeting?

Question Two stated:

Were Doreatha Walker's reports to the Galveston County Health Department, the Texas Department of State Health,

and the Environmental Protection Agency in February 2009 regarding the presence of mold in the Kids First Head

Start Building made in good faith and a cause of her suspension on May 1, 2009?

Both questions included this instruction about “good faith”:

“Good faith” means that (1) Doreatha Walker believed that the conduct reported was a violation of law, and (2) her

belief was reasonable in light of her training and experience.

2 Walker's proposed jury charge questions were:

1. Was Doreatha Walker's report to the (TEA) on May 3, 2009, in which she accused the District of improperly

reporting Head Start students to the State to gain additional transportation funding, made in good faith and a cause

of Dr. Michael Bergman's statements to the Board of Trustees at the May 19, 2009 Board meeting?

2. Were the reports of mold to the Galveston County Health Department, Texas Department of State Health and

Environmental Protection Agency the cause of Walker's suspension on May 1, 2009?

3 In point of error 3, Walker claims the trial court abused its discretion because “it allowed Hitchcock ISD to create a new

‘Affirmative Defense’ during the Trial to ambush and prejudice Mrs. Walker.”The new affirmative defense was “when they

told the Jury Plaintiff did not identify a law being violated,” and she objected. She has not identified where in the record

the District made this argument or where the trial court allowed it to be presented. Instead she cited the entire thirteenvolume record. As we cannot find where in the record an allegedly improper act occurred, we overrule plaintiff's point of
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)

2013 WL 3771302

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

error 3 for failure to provide appropriate record citations. SeeTEX.R.APP. P. 38.1(i); Saldana v. Garcia, 155 Tex. 242,

285 S.W.2d 197, 200–01 (Tex.1955) (explaining that the appellate courts are not required to search through voluminous

records to find the parties' citations for them).

4 In point of error 29, Walker claims the trial court abused its discretion because “it allowed Hitchcock ISD to bring up

things ... denied in their Motion for Limine.”She offers no argument to support this allegation and provides no citations

for guidance beyond this bare assertion. As we cannot find where in the record an allegedly improper act occurred, we

overrule plaintiff's point of error 29 for failure to reference authority or the record. SeeTEX.R.APP. P. 38.1(i).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 134.002. Findings and Declaration of Policy, TX NAT RES § 134.002

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Natural Resources Code (Refs & Annos)

Title 4. Mines and Mining (Refs & Annos)

Chapter 134. Texas Surface Coal Mining and Reclamation Act (Refs & Annos)

Subchapter A. General Provisions

V.T.C.A., Natural Resources Code § 134.002

§ 134.002. Findings and Declaration of Policy

Currentness

The legislature finds and declares that:

(1) the Congress of the United States has enacted the federal Act, which provides for the establishment of a nationwide

program to regulate surface coal mining and reclamation and which vests exclusive authority in the Department of the Interior

over the regulation of surface coal mining and reclamation in the United States;

(2) Section 101 of the federal Act contains the finding by Congress that because of the diversity in terrain, climate, biologic,

chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for

developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to that Act

should rest with the states;

(3) Section 503 of the federal Act provides that each state may assume and retain exclusive jurisdiction over the regulation

of surface coal mining and reclamation operations in that state by obtaining approval of a state program of regulation that

demonstrates that the state is able to carry out the provisions and meet the purposes of that Act;

(4) Section 503 of the federal Act further provides that a state wishing to assume exclusive jurisdiction over the regulation of

surface coal mining and reclamation operations in the state must have a state law that provides for the regulation of surface

coal mining and reclamation operations in accordance with that Act; and

(5) this state wishes to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations

in the state under the federal Act.

Credits

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

V. T. C. A., Natural Resources Code § 134.002, TX NAT RES § 134.002

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 134.020. Designation of Area as Unsuitable for Surface..., TX NAT RES § 134.020

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Natural Resources Code (Refs & Annos)

Title 4. Mines and Mining (Refs & Annos)

Chapter 134. Texas Surface Coal Mining and Reclamation Act (Refs & Annos)

Subchapter B. Powers and Duties of Commission

V.T.C.A., Natural Resources Code § 134.020

§ 134.020. Designation of Area as Unsuitable for Surface Coal Mining

Currentness

(a) On petition under Section 134.017, the commission shall designate an area unsuitable for all or certain types of surface coal

mining operations if the commission determines that reclamation under this chapter is not technologically and economically

feasible.

(b) On petition under Section 134.017, the commission may designate a surface area unsuitable for certain types of surface coal

mining operations if those operations will:

(1) be incompatible with existing state or local land use plans or programs;

(2) affect fragile or historic land in which the operations could result in significant damage to important historic, cultural,

scientific, and aesthetic values and natural systems;

(3) affect renewable resource lands, including aquifers and aquifer recharge areas, in which the operations could result in a

substantial loss or reduction of long-range productivity of water supply or of food or fiber products; or

(4) affect natural hazard land, including areas subject to frequent flooding and areas of unstable geology, in which the

operations could substantially endanger life and property.

(c) Sections 134.016 through 134.019 and this section do not apply to land:

(1) for which substantial legal and financial commitments in a surface coal mining operation or proposed operation were in

existence before January 4, 1977;

(2) on which surface coal mining operations were being conducted on August 3, 1977; or

(3) on which surface coal mining operations are being conducted under a permit issued under this chapter.

Credits

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.
§ 134.020. Designation of Area as Unsuitable for Surface..., TX NAT RES § 134.020

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

V. T. C. A., Natural Resources Code § 134.020, TX NAT RES § 134.020

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 16.312. Purpose, TX WATER § 16.312

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Water Code (Refs & Annos)

Title 2. Water Administration (Refs & Annos)

Subtitle C. Water Development

Chapter 16. Provisions Generally Applicable to Water Development (Refs & Annos)

Subchapter I. Flood Insurance (Refs & Annos)

V.T.C.A., Water Code § 16.312

§ 16.312. Purpose

Currentness

The State of Texas recognizes the personal hardships and economic distress caused by flood disasters since it has become

uneconomic for the private insurance industry alone to make flood insurance available to those in need of such protection

on reasonable terms and conditions. Recognizing the burden of the nation's resources, congress enacted the National Flood

Insurance Act of 1968, as amended (42 U.S.C. Sections 4001 through 4127), whereby flood insurance can be made available

through coordinated efforts of the federal government and the private insurance industry, by pooling risks, and the positive

cooperation of state and local government. The purpose of this subchapter is to evidence a positive interest in securing flood

insurance coverage under this federal program and to so procure for those citizens of Texas desiring to participate and in

promoting the public interest by providing appropriate protection against the perils of flood losses and in encouraging sound

land use by minimizing exposure of property to flood losses.

Credits

Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977.

V. T. C. A., Water Code § 16.312, TX WATER § 16.312

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 16.3145. National Flood Insurance Program Orders or..., TX WATER § 16.3145

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Water Code (Refs & Annos)

Title 2. Water Administration (Refs & Annos)

Subtitle C. Water Development

Chapter 16. Provisions Generally Applicable to Water Development (Refs & Annos)

Subchapter I. Flood Insurance (Refs & Annos)

V.T.C.A., Water Code § 16.3145

§ 16.3145. National Flood Insurance Program Orders or Ordinances

Currentness

The governing body of each city and county shall adopt ordinances or orders, as appropriate, necessary for the city or county

to be eligible to participate in the National Flood Insurance Program.

Credits

Added by Acts 1999, 76th Leg., ch. 1360, § 1, eff. Aug. 30, 1999.

V. T. C. A., Water Code § 16.3145, TX WATER § 16.3145

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 26.011. In General, TX WATER § 26.011

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Water Code (Refs & Annos)

Title 2. Water Administration (Refs & Annos)

Subtitle D. Water Quality Control

Chapter 26. Water Quality Control (Refs & Annos)

Subchapter B. General Powers and Duties

V.T.C.A., Water Code § 26.011

§ 26.011. In General

Currentness

Except as otherwise specifically provided, the commission shall administer the provisions of this chapter and shall establish the

level of quality to be maintained in, and shall control the quality of, the water in this state as provided by this chapter. Waste

discharges or impending waste discharges covered by the provisions of this chapter are subject to reasonable rules or orders

adopted or issued by the commission in the public interest. The commission has the powers and duties specifically prescribed

by this chapter and all other powers necessary or convenient to carry out its responsibilities. This chapter does not apply to

discharges of oil covered under Chapter 40, Natural Resources Code.

Credits

Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.065,

eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 10, § 4, eff. March 28, 1991.

Notes of Decisions (8)

V. T. C. A., Water Code § 26.011, TX WATER § 26.011

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 26.023. Water Quality Standards, TX WATER § 26.023

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Water Code (Refs & Annos)

Title 2. Water Administration (Refs & Annos)

Subtitle D. Water Quality Control

Chapter 26. Water Quality Control (Refs & Annos)

Subchapter B. General Powers and Duties

V.T.C.A., Water Code § 26.023

§ 26.023. Water Quality Standards

Currentness

The commission by rule shall set water quality standards for the water in the state and may amend the standards from time to time.

The commission has the sole and exclusive authority to set water quality standards for all water in the state. The commission

shall consider the existence and effects of nonpoint source pollution, toxic materials, and nutrient loading in developing water

quality standards and related waste load models for water quality. The commission shall develop standards based on all quality

assured data obtained by the commission, including the local watershed and river basin database described by Section 26.0135(c)

(2). In this section, “quality assured data” has the meaning assigned by Section 26.0135(i).

Credits

Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.072,

eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 294, § 3, eff. June 7, 1991; Acts 1997, 75th Leg., ch. 101, § 3, eff. Sept. 1, 1997.

Notes of Decisions (1)

V. T. C. A., Water Code § 26.023, TX WATER § 26.023

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 26.171. Inspection of Public Water, TX WATER § 26.171

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Water Code (Refs & Annos)

Title 2. Water Administration (Refs & Annos)

Subtitle D. Water Quality Control

Chapter 26. Water Quality Control (Refs & Annos)

Subchapter E. Authority of Local Governments

V.T.C.A., Water Code § 26.171

§ 26.171. Inspection of Public Water

Currentness

A local government may inspect the public water in its area and determine whether or not:

(1) the quality of the water meets the state water quality standards adopted by the commission;

(2) persons discharging effluent into the public water located in the areas of which the local government has jurisdiction have

obtained permits for discharge of the effluent; and

(3) persons who have permits are making discharges in compliance with the requirements of the permits.

Credits

Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.103,

eff. Sept. 1, 1985.

Notes of Decisions (1)

V. T. C. A., Water Code § 26.171, TX WATER § 26.171

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 26.172. Recommendations to Commission, TX WATER § 26.172

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Water Code (Refs & Annos)

Title 2. Water Administration (Refs & Annos)

Subtitle D. Water Quality Control

Chapter 26. Water Quality Control (Refs & Annos)

Subchapter E. Authority of Local Governments

V.T.C.A., Water Code § 26.172

§ 26.172. Recommendations to Commission

Currentness

A local government may make written recommendations to the commission as to what in its judgment the water quality standards

should be for any public water within its territorial jurisdiction.

Credits

Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.103,

eff. Sept. 1, 1985.

V. T. C. A., Water Code § 26.172, TX WATER § 26.172

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 26.176. Disposal System Rules, TX WATER § 26.176

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Water Code (Refs & Annos)

Title 2. Water Administration (Refs & Annos)

Subtitle D. Water Quality Control

Chapter 26. Water Quality Control (Refs & Annos)

Subchapter E. Authority of Local Governments

V.T.C.A., Water Code § 26.176

§ 26.176. Disposal System Rules

Currentness

(a) Every local government which owns or operates a disposal system is empowered to and shall, except as authorized in

Subsection (c) of this section, enact and enforce rules, ordinances, orders, or resolutions, referred to in this section as rules,

to control and regulate the type, character, and quality of waste which may be discharged to the disposal system and, where

necessary, to require pretreatment of waste to be discharged to the system, so as to protect the health and safety of personnel

maintaining and operating the disposal system and to prevent unreasonable adverse effects on the disposal system.

(b) The local government in its rules may establish the charges and assessments which may be made to and collected from all

persons who discharge waste to the disposal system or who have conduits or other facilities for discharging waste connected

to the disposal system, referred to in this subsection as “users.” The charges and assessments shall be equitable as between all

users and shall correspond as near as can be practically determined to the cost of making the waste disposal services available

to all users and of treating the waste of each user or class of users. The charges and assessments may include user charges,

connection fees, or any other methods of obtaining revenue from the disposal system available to the local government. In

establishing the charges and assessments, the local government shall take into account:

(1) the volume, type, character, and quality of the waste of each user or class of users;

(2) the techniques of treatment required;

(3) any capital costs and debt retirement expenses of the disposal system required to be paid for from the charges and

assessments;

(4) the costs of operating and maintaining the system to comply with this chapter and the permits, rules, and orders of the

commission; and

(5) any other costs directly attributable to providing the waste disposal service under standard, accepted cost-accounting

practices.

(c) A local government may apply to the commission for an exception from the requirements of Subsections (a) and (b) of

this section or for a modification of those requirements. The application shall contain the exception or modifications desired,

the reasons the exception or modifications are needed, and the grounds authorized in this subsection on which the commission
§ 26.176. Disposal System Rules, TX WATER § 26.176

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

should grant the application. A public hearing on the application shall be held in or near the territorial area of the local

government, and notice of the hearing shall be given to the local government. If after the hearing the commission in its judgment

determines that the volume, type, character, and quality of the waste of the users of the system or of a particular user or class of

users of the system do not warrant the enactment and enforcement of rules containing the requirements prescribed in Subsections

(a) and (b) of this section or that the enactment and enforcement of the rules would be impractical or unreasonably burdensome

on the local government in relation to the public benefit to be derived, then the commission in its discretion may enter an order

granting an exception to those requirements or modifying those requirements in any particular in response to circumstances

shown to exist.

(d) At any time and from time to time as circumstances may require, the commission may amend or revoke any order it enters

pursuant to Subsection (c) of this section. Before the commission amends or revokes such an order, a public hearing shall be

held in or near the territorial area of the local government in question, and notice of the hearing shall be given to the local

government. If after the hearing the commission in its judgment determines that the circumstances on which it based the order

have changed significantly or no longer exist, the commission may revoke the order or amend it in any particular in response

to the circumstances then shown to exist.

(e) In the event of any conflict between the provisions of this section and any other laws or parts of laws, the provisions of

this section shall control.

Credits

Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.105,

eff. Sept. 1, 1985.

Notes of Decisions (3)

V. T. C. A., Water Code § 26.176, TX WATER § 26.176

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 26.180. Nonpoint Source Water Pollution Control Programs..., TX WATER § 26.180

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Water Code (Refs & Annos)

Title 2. Water Administration (Refs & Annos)

Subtitle D. Water Quality Control

Chapter 26. Water Quality Control (Refs & Annos)

Subchapter E. Authority of Local Governments

V.T.C.A., Water Code § 26.180

§ 26.180. Nonpoint Source Water Pollution Control Programs of Certain Municipalities

Currentness

(a) This section applies to a municipality to which Section 42.903, Local Government Code, applies.

(b) The municipality shall exercise the powers granted under state law to a municipality to adopt ordinances to control and

abate nonpoint source water pollution or to protect threatened or endangered species.

(c) The municipality by ordinance shall adopt a nonpoint source water pollution control and abatement program for

the municipality and its extraterritorial jurisdiction before the municipality adopts a resolution or ordinance creating an

extraterritorial jurisdiction under Section 42.903, Local Government Code. The municipality shall submit the ordinance creating

the program to the commission. Notwithstanding any other law requiring the adoption of an ordinance creating an extraterritorial

jurisdiction and approval by the commission, the ordinance creating the program becomes effective and is enforceable by the

municipality on the 90th day after the date the municipality submits the ordinance unless the ordinance is disapproved by the

commission during the 90-day period.

(d) If the commission disapproves a program submitted under Subsection (c) of this section, the commission shall make

recommendations to the municipality. The municipality shall adopt and incorporate the commission's recommendations in the

program.

(e) The nonpoint source water pollution controls of the municipality that had extraterritorial jurisdiction over an area before the

area was included in the extraterritorial jurisdiction of another municipality under Section 42.903, Local Government Code, are

effective during the 90-day period that the program is pending before the commission or until an amended program satisfactory

to the commission is adopted. The municipality, including the area in its extraterritorial jurisdiction under Section 42.903, Local

Government Code, shall enforce the controls during the 90-day period.

(f) If a nonpoint source water pollution control and abatement program is adopted by a river authority that has boundaries that

encompass the extraterritorial jurisdiction of the municipality, the standards under the program adopted by the municipality

must meet or exceed the standards under the program adopted by the river authority.

(g) The municipality may not grant a waiver to its nonpoint source water pollution control and abatement program unless

granting the waiver would demonstrably improve water quality.
§ 26.180. Nonpoint Source Water Pollution Control Programs..., TX WATER § 26.180

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Credits

Added by Acts 1991, 72nd Leg., ch. 16, § 13.01(b), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Water Code § 26.178 by

Acts 1995, 74th Leg., ch. 76, § 17.01(52), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Water Code § 26.179 by Acts 1997,

75th Leg., ch. 165, § 31.01(75), eff. Sept. 1, 1997.

V. T. C. A., Water Code § 26.180, TX WATER § 26.180

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
 

 

NATIONAL FLOOD INSURANCE PROGRAM 

PROGRAM DESCRIPTION 

August 1, 2002 

Federal Emergency Management Agency 

Federal Insurance and Mitigation Administration 
NFIP Description August 1, 2002 

National Flood Insurance Program 

The U.S. Congress established the National Flood Insurance Program (NFIP) with the passage of 

the National Flood Insurance Act of 1968. The NFIP is a Federal program enabling property 

owners in participating communities to purchase insurance as a protection against flood losses in 

exchange for State and community floodplain management regulations that reduce future flood 

damages. Participation in the NFIP is based on an agreement between communities and the 

Federal Government. If a community adopts and enforces a floodplain management ordinance to 

reduce future flood risk to new construction in floodplains, the Federal Government will make 

flood insurance available within the community as a financial protection against flood losses. 

This insurance is designed to provide an insurance alternative to disaster assistance to reduce the 

escalating costs of repairing damage to buildings and their contents caused by floods. 

Purpose of this Document: 

The purpose of this document is to provide a comprehensive description of the NFIP intended for 

use by FEMA staff and NFIP constituents. It provides an overview and history of the Program 

and covers all three aspects of the Program: 1) floodplain identification and mapping; 2) 

floodplain management; and 3) flood insurance. 

NFIP activities that are described in detail in this document include: 

• How flood-prone areas are identified and mapped; 

• FEMA’s map modernization initiative; 

• The floodplain management requirements a community must adopt and enforce; 

• FEMA’s community assistance and monitoring activities; 

• How flood insurance is sold; 

• What structures are eligible for flood insurance coverage and the amount of coverage available; 

• How flood insurance policies are rated and claims are paid; 

• The Community Rating System; and 

• The Flood Mitigation Assistance program. 

This document also includes a description of the Mandatory Purchase of Flood Insurance 

Requirement and how this requirement relates to the NFIP. Finally, it includes a description of 

other FEMA programs and activities that provide mitigation assistance and planning assistance 

in reducing the Nation’s flood losses. 

A list of acronyms used in this description is provided at the end of the document. 
NFIP Description August 1, 2002 

Federal Emergency Management Agency’s Mission............................................1

Overview of the NFIP ..............................................................................................1

Flood Hazard Identification and Risk Assessment...............................................4

The “100-year” Standard ..........................................................................................................................5

Identifying and Mapping Flood-Prone Areas ...........................................................................................5

Flood Mapping Process............................................................................................................................7

Depiction of Levee Systems and Floodwall Systems on NFIP Maps ......................................................8

Changes to the Flood Maps......................................................................................................................9

Mapping the Coastal Barrier Resource System or Otherwise Protected Areas......................................10

Map Modernization Program..................................................................................................................10

Mapping Future Conditions....................................................................................................................12

Floodplain Management........................................................................................12

Minimum NFIP Floodplain Management Requirements .......................................................................13

Ordinance Adoption ...............................................................................................................................16

Monitoring Community Compliance......................................................................................................17

Actions Against Communities For Failure to Enforce ...........................................................................18

Actions Against Individual Properties For Failure to Comply ...............................................................19

State Floodplain Management Role........................................................................................................20

Post-Disaster Assessments .....................................................................................................................20

Providing Technical Assistance..............................................................................................................21

Flood Insurance......................................................................................................22

Sale of Flood Insurance ..........................................................................................................................22

Flood Insurance Policy ...........................................................................................................................23

Eligible Structures ..................................................................................................................................23

Coastal Barrier Resources System..........................................................................................................24

Waiting Period........................................................................................................................................25

Coverage Amounts.................................................................................................................................25

Other Coverages.....................................................................................................................................26

Ratemaking.............................................................................................................................................26

Claims.....................................................................................................................................................27

Marketing ...............................................................................................................................................29

Mandatory Flood Insurance Purchase Requirement.........................................29
NFIP Description August 1, 2002 

Other NFIP Activities............................................................................................31

Community Rating System.....................................................................................................................31

Flood Mitigation Assistance Program ....................................................................................................33

Other FEMA Programs.........................................................................................34

Hazard Mitigation Grant Program..........................................................................................................34

Disaster Mitigation Act of 2000 .............................................................................................................35

Planning Initiatives.................................................................................................................................36

A Key To The Acronyms Used In This Document .............................................37
NFIP Description August 1, 2002 

Federal Emergency Management Agency’s Mission 

The Federal Emergency Management Agency (FEMA) is an independent Federal agency 

reporting to the President. Founded in 1979, FEMA’s mission is to: 

Lead America to prepare for, prevent, respond to, and recover from disaster. 

FEMA is responsible for coordinating the Federal response to floods, earthquakes, hurricanes, 

and other natural or man-made disasters and providing disaster assistance to States, communities 

and individuals. Disasters are declared by the President at the request of the Governor of the 

impacted State if the impacts of the disaster exceed the ability of the State and the affected 

communities to respond. For declared disasters, FEMA activates the Federal Response Plan with 

27 signatory agencies. The Federal Response Plan provides a framework for the coordination of 

assistance to States, communities, and individuals by Federal agencies. 

The Federal Insurance and Mitigation Administration (FIMA) within FEMA is responsible for 

administering the National Flood Insurance Program (NFIP) and administering programs that 

provide assistance for mitigating future damages from natural hazards. 

FEMA also provides training and technical assistance to governmental and non-governmental 

entities in preparing for and responding to disasters and for protecting against future disasters 

through mitigation. In addition to a headquarters office in Washington, D.C., FEMA has 10 

regional offices. 

Overview of the NFIP 

Up until 1968, Federal actions related to flooding were primarily responses to significant events 

that resulted in using structural measures to control flooding. Major riverine flood disasters of 

the 1920’s and 1930’s led to considerable Federal involvement in protecting life and property 

from flooding through the use of structural flood-control projects, such as dams and levees, with 

the passage of the Flood Control Act of 1936. Generally, the only available financial recourse to 

assist flood victims was in the form of disaster assistance. Despite the billions of dollars in 

Federal investments in structural flood-control projects, the losses to life and property and the 

amount of assistance to disaster victims from floods continued to increase. 

As early as the 1950’s, when the feasibility of providing flood insurance was first proposed, it 

became clear that private insurance companies could not profitably provide such coverage at an 

affordable price, primarily because of the catastrophic nature of flooding and the inability to 

develop an actuarial rate structure which could adequately reflect the risk to which flood-prone 

properties are exposed. Congress proposed an experimental program designed to demonstrate 

the feasibility of the private sector providing flood insurance by enacting the Federal Insurance 

Act of 1956, but this Act was never implemented. 

In recognition of increasing flood losses and disaster relief costs, major steps were taken in the 

1960’s to redefine Federal policy and approaches to flood control. In 1965, Congress passed the 

Southeast Hurricane Disaster Relief Act. The Act was as a result of the extensive damage 

1
NFIP Description August 1, 2002 

caused by Hurricane Betsy in the Gulf States. The Act provided financial relief for the flooding 

victims and authorized a feasibility study of a national flood insurance program. The resulting 

report was entitled, “Insurance and Other Programs for Financial Assistance to Flood Victims”. 

Shortly thereafter, the Bureau of the Budget Task Force on Federal Flood Control in 1966 

advocated a broader perspective on flood control within the context of floodplain development in 

House Document 465, “A Unified National Program for Managing Flood Losses”. House 

Document 465 included five major goals: 

• Improve basic knowledge about flood hazards; 

• Coordinate and plan new developments in the floodplain; 

• Provide technical services; 

• Move toward a practical national program of flood insurance; and 

• Adjust Federal flood control policy to sound criteria and changing needs. 

House Document 465 and the prior feasibility study provided the basis for the National Flood 

Insurance Act of 1968. The primary purposes of the 1968 Act creating the NFIP are to: 

• Better indemnify individuals for flood losses through insurance; 

• Reduce future flood damages through State and community floodplain management 

regulations; and 

• Reduce Federal expenditures for disaster assistance and flood control. 

Section 1315 of the 1968 Act is a key provision that prohibits FEMA from providing flood 

insurance unless the community adopts and enforces floodplain management regulations that 

meet or exceed the floodplain management criteria established in accordance with Section 

1361(c) of the Act. These floodplain management criteria are contained in 44 Code of Federal 

Regulations (CFR) Part 60, Criteria for Land Management and Use. The emphasis of the NFIP 

floodplain management requirements is directed toward reducing threats to lives and the potential 

for damages to property in flood-prone areas. Over 19,700 communities presently participate in 

the NFIP. These include nearly all communities with significant flood hazards. 

In addition to providing flood insurance and reducing flood damages through floodplain 

management regulations, the NFIP identifies and maps the Nation’s floodplains. Mapping flood 

hazards creates broad-based awareness of the flood hazards and provides the data needed for 

floodplain management programs and to actuarially rate new construction for flood insurance. 

When the NFIP was created, the U.S. Congress recognized that insurance for “existing 

buildings” constructed before a community joined the Program would be prohibitively expensive 

if the premiums were not subsidized by the Federal Government. Congress also recognized that 

most of these flood-prone buildings were built by individuals who did not have sufficient 

knowledge of the flood hazard to make informed decisions. Under the NFIP, “existing buildings” 

are generally referred to as Pre-FIRM (Flood Insurance Rate Map) buildings. These buildings were 

built before the flood risk was known and identified on the community’s FIRM. Currently about 

26 percent of the 4.3 million NFIP policies in force are Pre-FIRM subsidized compared to 70 

percent of the policies being subsidized in 1978. 

2
NFIP Description August 1, 2002 

In exchange for the availability of subsidized insurance for existing buildings, communities are 

required to protect new construction and substantially improved structures through adoption and 

enforcement of community floodplain management ordinances. The 1968 Act requires that full 

actuarial rates reflecting the complete flood risk be charged on all buildings constructed or 

substantially improved on or after the effective date of the initial FIRM for the community or after 

December 31, 1974, whichever is later. These buildings are generally referred to as “Post-FIRM” 

buildings. 

Early in the Program’s history, the Federal Government found that providing subsidized flood 

insurance for existing buildings was not a sufficient incentive for communities to voluntarily join 

the NFIP nor for individuals to purchase flood insurance. Tropical Storm Agnes in 1972, which 

caused extensive riverine flooding along the east coast, proved that few property owners in 

identified floodplains were insured. This storm cost the Nation more in disaster assistance than 

any previous disaster. For the Nation as a whole, only a few thousand communities participated 

in the NFIP and only 95,000 policies were in force. 

As a result, Congress passed the Flood Disaster Protection Act of 1973. The 1973 Act prohibits 

Federal agencies from providing financial assistance for acquisition or construction of buildings 

and certain disaster assistance in the floodplains in any community that did not participate in the 

NFIP by July 1,1975, or within 1 year of being identified as flood-prone. 

Additionally, the 1973 Act required that Federal agencies and federally insured or regulated 

lenders had to require flood insurance on all grants and loans for acquisition or construction of 

buildings in designated Special Flood Hazard Areas (SFHAs) in communities that participate in 

the NFIP. This requirement is referred to as the Mandatory Flood Insurance Purchase 

Requirement. The SFHA is that land within the floodplain of a community subject to a 1 percent 

or greater chance of flooding in any given year, commonly referred to as the 100-year flood. 

The Mandatory Flood Insurance Purchase Requirement, in particular, resulted in a dramatic 

increase in the number of communities that joined the NFIP in subsequent years. In 1973, just 

over 2,200 communities participated in the NFIP. Within 4 years, approximately 15,000 

communities had joined the Program. It also resulted in a dramatic increase in the number of 

flood insurance policies in force. In 1977, approximately 1.2 million flood insurance policies 

were in force, an increase of almost 900,000 over the number policies in force in December of 

1973. 

The authors of the original study of the NFIP thought that the passage of time, natural forces, and 

more stringent floodplain management requirements and building codes would gradually 

eliminate the number of Pre-FIRM structures. Nevertheless, modern construction techniques 

have extended the useful life of these Pre-FIRM buildings beyond what was originally expected. 

However, their numbers overall continue to decrease. The decrease in the number of Pre-FIRM 

buildings has been attributed to a number of factors such as, severe floods in which buildings 

were destroyed or substantially damaged, redevelopment, natural attrition, acquisition of flood 

damaged structures, as well as flood control projects. 

3
NFIP Description August 1, 2002 

In 1994, Congress amended the 1968 Act and the 1973 Act with the National Flood Insurance 

Reform Act (NFIRA). The 1994 Act included measures, among others, to: 

• Increase compliance by mortgage lenders with the mandatory purchase requirement and 

improve coverage; 

• Increase the amount of flood insurance coverage that can be purchased; 

• Provide flood insurance coverage for the cost of complying with floodplain management 

regulations by individual property owners (Increased Cost of Compliance coverage); 

• Establish a Flood Mitigation Assistance grant program to assist States and communities to 

develop mitigation plans and implement measures to reduce future flood damages to 

structures; 

• Codify the NFIP’s Community Rating System; and 

• Require FEMA to assess its flood hazard map inventory at least once every 5 years. 

Funding for the NFIP is through the National Flood Insurance Fund, which was established in 

the Treasury by the 1968 Act. Premiums collected are deposited into the fund, and losses, and 

operating and administrative costs are paid out of the fund. In addition, the Program has the 

authority to borrow up to $1.5 billion from the Treasury, which must be repaid along with 

interest. Until 1986, Federal salaries and program expenses, as well as the costs associated with 

flood hazard mapping and floodplain management were paid by an annual appropriation from 

Congress. From 1987 to 1990, Congress required the Program to pay these expenses out of 

premium dollars. When expressed in current dollars, $485 million of policyholder premiums 

were transferred to pay salary and other expenses of the Program. Beginning in 1991, a Federal 

policy fee of $25 dollars, which was increased to $30 in 1995, is applied to most policies in order 

to generate the funds for salaries, expenses, and mitigation costs. 

The three basic components of the Program – identifying and mapping flood-prone communities, 

the requirement that communities adopt and enforce floodplain management regulations, and the 

provision of flood insurance – are described in detail below. Other aspects and components of 

the Program, including the Mandatory Purchase Requirement, the Community Rating System 

and the Flood Mitigation Assistance program, are also described. 

Flood Hazard Identification and Risk Assessment 

The Director of FEMA is required by statute to identify and map the Nation’s flood-prone areas 

and to establish flood-risk zones in such areas. Flood hazard maps have been issued for over 

19,200 communities at a cost of over $1.5 billion (actual dollars) [$2.8 billion in 2001 dollars]. 

To date, approximately 100,000 flood map panels have been produced depicting approximately 

150,000 square miles of floodplain areas. 

The FEMA flood hazard maps are used an estimated 15 million times annually for State and 

community floodplain management regulations, for calculating flood insurance premiums, and 

for determining whether property owners are required by law to obtain flood insurance as a 

condition of obtaining mortgage loans or other Federal or federally related financial assistance. 

FEMA’s flood hazard maps are also used by States and communities for emergency management 

4
NFIP Description August 1, 2002 

and for land use and water resources planning and by Federal agencies implementing Executive 

Order 11988, Floodplain Management for Federal actions proposed in or affecting floodplains. 

The “100-year” Standard 

The NFIP would not be able to offer insurance at affordable rates without the existence of risk 

management (floodplain management) to reduce flood losses. In order to assess and manage the 

flood risk, a national standard was needed. The U.S. Department of Housing and Urban 

Development, which initially administered the NFIP before FEMA was created, began its 

administration of the NFIP by calling on a group of experts to advise the agency as to the best 

standard to be used as the basis for risk assessment, insurance rating, and floodplain management 

for the Program. After extensive study and coordination with Federal and State agencies, this 

group recommended the 1-percent-annual-chance flood (also referred to as the 100-year or “Base 

Flood”) be used as the standard for the NFIP. 

The 1-percent-annual-chance flood was chosen on the basis that it provides a higher level of 

protection while not imposing overly stringent requirements or the burden of excessive costs on 

property owners. The 1-percent-annual-chance flood (or 100-year flood) represents a magnitude 

and frequency that has a statistical probability of being equaled or exceeded in any given year, 

or, stated alternatively, the 100-year flood has a 26 percent (or 1 in 4) chance of occurring over 

the life of a 30-year mortgage. 

In 1973, the Senate Committee on Banking, Housing and Urban Affairs, which had oversight 

responsibility for the NFIP, heard arguments on both sides on the appropriateness of the 100-

year base flood standard. The Committee concluded that the 1-percent-annual-chance flood was 

reasonable and consistent with national objectives in reducing flood losses. In 1981, the Office 

of Management and Budget (OMB) directed FEMA to review the use of the 1-percent-annualchance flood as part of the President’s 1981 Task Force on Regulatory Relief. In its report to 

OMB, FEMA reaffirmed the overwhelming support for the Base Flood standard in responses 

from the public and private sector. 

The 1-percent-annual-chance flood is a regulatory standard used by Federal agencies, and most 

States, to administer floodplain management programs. The 1-percent-annual-chance flood 

standard has been used since the inception of the NFIP and is used for floodplain management 

purposes in all of the 19,200 participating communities that have been issued flood hazard maps. 

Identifying and Mapping Flood-Prone Areas 

To meet the objective that studies be conducted to accurately assess the flood risk within each 

flood-prone community, the 1968 Act called for: 1) the identification and publication of 

information within five years for all floodplain areas that have special flood hazards; and 2) the 

establishment of flood-risk zones in all such areas to be completed over a 15-year period 

following passage of the Act. 

When the NFIP was initially established, communities had to have been mapped and have floodrisk zones established before they could participate in the Program. Within the first year of 

5
NFIP Description August 1, 2002 

NFIP’s operation, it became evident that the time required to complete the detailed flood 

insurance studies would markedly delay implementation of the Program in many flood-prone 

communities. As a result, an interim means for more rapid community participation in the NFIP 

had to be provided. The Housing and Urban Development Act of 1969 expanded participation 

by authorizing an Emergency Program under which insurance coverage could be provided at 

non-actuarial, federally subsidized rates in limited amounts during the period prior to completion 

of a community’s Flood Insurance Study (FIS). 

Until an FIS could be conducted, Flood Hazard Boundary Maps, which delineated the 

boundaries of the community’s SFHAs, were prepared using approximate methods. These 

methods identified on an approximate basis a 1-percent-annual-chance floodplain, but did not 

include the determination of Base Flood Elevations (BFEs) (100-year flood elevations), flood 

depths, or floodways. The Flood Hazard Boundary Map was intended to assist communities in 

managing floodplain development, and to assist insurance agents and property owners in 

identifying those areas where the purchase of flood insurance was advisable. 

FISs that use detailed hydrologic and hydraulic analyses to develop BFEs and designate 

floodways and risk zones for developed areas of the floodplain were subsequently produced for 

most NFIP communities. Once more detailed risk data were provided to communities, the 

community could enter the Regular Program whereby the community is required to adopt more 

comprehensive floodplain management requirements and owners of structures could purchase 

higher amounts of insurance. 

In producing and updating FISs, FEMA typically uses a combination of two study approaches 

(approximate and detailed) in identifying a community’s flood hazards. Detailed study methods 

typically employ the use of engineering models and, at a minimum, result in the determination of 

BFEs or flood depths and floodways that will be displayed on the FIRM. In general, the decision 

whether to use the approximate method or detailed method is based on existing and anticipated 

development in and near the floodplain. Flood hazard information for flooding sources that 

affect developed or developing areas are based on detailed studies whenever possible; 

approximate study methods, which are less rigorous than detailed methods and do not determine 

BFEs or floodways, may be used for undeveloped or sparsely developed areas. 

An FIS usually generates the following flood hazard information: 

• BFEs are presented as either water-surface elevations or average depths of flow above the 

ground surface. These elevations and depths are usually referenced to either the National 

Geodetic Vertical Datum of 1929 (NGVD29) or the North American Vertical Datum of 1988 

(NAVD88). 

• Water-surface elevations for the 10-year (10-percent-annual-chance), 50-year (2-percentannual-chance), 100-year (1-percent-annual-chance), and 500-year (0.2-percent-annualchance) floods. 

• Boundaries of the regulatory 100-year floodway. The regulatory floodway is defined as the 

channel of a stream plus any adjacent floodplain areas that must be kept free of 

encroachment so that the entire Base Flood (100-year flood) discharge can be conveyed with 

no greater than a 1.0-foot increase in the BFE. 

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NFIP Description August 1, 2002 

• The boundaries of the 100- and 500-year floodplains. The 100-year floodplain is referred to 

as the Special Flood Hazard Area (SFHA). 

The results of the FIS are presented on a map, referred to as a Flood Insurance Rate Map 

(FIRM), and presented in the FIS report in a narrative and graphically as flood profiles attached 

to the narrative. FEMA determines the 1-percent-annual-chance flood, shown on the FIRMs as 

A Zones or V Zones, from information that obtained through consultation with the community, 

and from floodplain topographic surveys, detailed hydrologic and hydraulic analyses, and 

historic records. FEMA uses commonly accepted computer models and engineering methods 

that estimate hydrologic and hydraulic conditions to determine the 1-percent-annual-chance 

flood, to determine BFEs, and to designate flood-risk zones. 

FEMA defines technical requirements, product specifications for Flood Hazard Maps and related 

NFIP products, and associated coordination and documentation activities in Guidelines and 

Specifications for Flood Hazard Mapping Partners, dated February 2002. The Guidelines, 

which are used to prepare FISs and restudies, provide information for the evaluation of riverine 

and alluvial fan flood hazards, coastal flooding and flood-related erosion, and flood hazards 

along the Great Lakes. The Guidelines also include procedures for conducting hydrologic and 

hydraulic analyses of a flooding source or sources in order to establish BFEs. Also, included in 

the Guidelines is information on process and products associated with the Cooperative Technical 

Partners initiative, digital Flood Insurance Rate Map (DFIRM) specifications, and the option of 

including a flood hazard zone reflecting future conditions on the FIRM when requested by the 

community. 

Along rivers, streams, and lakes within the United States, FEMA computes flood elevations 

using computer models, statistical techniques, or both. These elevations are a function of the 

amount of water expected to enter a particular system by means of precipitation and runoff. The 

SFHAs in riverine areas are primarily identified as “A Zones” on the FIRM. 

Along the coast, FEMA determines SFHAs by an analysis of storm surge, wind direction and 

speed, wave heights, and other factors. FEMA designates these areas along the coast as both V 

Zones and A Zones on the FIRM. V Zones are the more hazardous coastal flood zones because 

they are subject to high velocity wave action. FEMA applies the V-Zone designation to those 

areas along the coast where water depth and other conditions would support at least a 3-foot 

wave height. FEMA also considers other factors in identifying V Zones, such as wave run-up. 

FEMA usually designates A Zones in coastal areas landward of the V Zone. Coastal flood 

hazards areas mapped as A Zones can be subject to storm surge and damaging waves; however, 

the waves are less than 3 feet in height. 

Flood Mapping Process 

Over 10,000 communities have been provided detailed FISs and have been issued FIRMs that 

include BFEs for Zones AE, A1-30, AH, AO, AR/AE, AR/A1-30, AR/AO, AR/AH, VE, and 

V1-30. Most of these NFIP communities will have FIRMs that include a combination of SFHAs 

that have been studied in detail with BFEs and floodway data and SFHAs that have been studied 

7
NFIP Description August 1, 2002 

using approximate methods which have been designated Zone A without BFEs or floodway 

designations. 

A draft FIS can be prepared by a study contractor to FEMA under the NFIP Regulations at 44 

CFR Part 66 or by appellants under 44 CFR Part 65 for the purpose of establishing or revising 

BFE and floodway data. FEMA reviews and modifies, as appropriate, the draft FIS to ensure it 

complies with established NFIP criteria. Once FEMA has received and approved the draft FIS, 

FEMA releases the information to the public as a Preliminary FIS and FIRM for review and 

comment during a statutory 90-day appeal period before proposed elevations become effective. 

During the appeal period, any owner or lessee of real property within the community where the 

proposed elevation determination has been made may file a written appeal. The appeal must be 

based on a demonstration that the elevations proposed by FEMA are scientifically and/or 

technically incorrect. Until such time as the 90-day appeal period is completed and the 

community is provided with a notice of final flood elevation determination, the BFE and 

floodway data in the FIS are considered preliminary and subject to change. During the 

preparation and review of the FIS and the appeals, FEMA coordinates closely with State and 

local officials and presents its findings at public meetings. 

Depiction of Levee Systems and Floodwall Systems on NFIP Maps 

FEMA does not design, construct, fund, or approve levee systems or floodwall systems. 

However, FEMA has developed stringent criteria that must be met before any system can be 

depicted as providing protection from the 1-percent-annual-chance flood on a FIRM. Once the 

criteria in the NFIP regulations have been met, FEMA will remove the property behind the levee 

or floodwall from the 1-percent-annual-chance floodplain. FEMA’s review of a levee or 

floodwall system is for the sole purpose of establishing appropriate risk-zone determinations for 

NFIP maps and does not constitute a determination or warranty by FEMA as to how a structure 

or system will perform in a flood event. Because of the potentially devastating effects to life and 

property should a levee or floodwall fail or be overtopped, FEMA takes special care in 

considering the impacts of such structures on flood hazards. 

FEMA recognizes only a levee system or floodwall system that meets, and continues to meet, 

minimum design standards that provide protection from the 1-percent-annual-chance flood. 

Specifically, the criteria established in 44 CFR §65.10 must be satisfied before a levee may be 

credited and mapped as providing protection from the 1-percent-annual-chance flood event. The 

criteria include: 

• Design criteria, which address minimum freeboard above flood height, closure devices for 

any openings, embankment protection, embankment and foundation stability, settlement, and 

interior drainage. All data submitted to demonstrate compliance with these structural 

requirements must be certified by a registered professional engineer. In lieu of submitting 

these data, a Federal agency with responsibility for levee design may certify that the levee 

and/or levee system provides adequate protection against the 1-percent-annual-chance flood. 

8
NFIP Description August 1, 2002 

• Operations plan and criteria, which address operation of closures and interior drainage 

systems during a flood event. Operations for a levee system must be under the jurisdiction 

of a Federal or State agency, an agency created by Federal or State law, or an agency 

established by a community participating in the NFIP. 

• Maintenance plans and criteria require an officially adopted maintenance plan. At a 

minimum, the plan must specify the maintenance activities to be performed, the frequency of 

their performance, and the person responsible for their performance. All maintenance 

activities must be performed under the jurisdiction of a Federal or State agency, an agency 

created by a Federal or State law, or an agency of a community participating in the NFIP. 

Changes to the Flood Maps 

The flood risk information presented on the FIRM and in the FIS report forms the technical basis 

for the administration of the NFIP. FEMA exercises great care to ensure that the analytical 

methods employed in the FISs are scientifically and technically correct, that the engineering 

standards followed meet professional standards, and, ultimately, that the results of the FIS are 

accurate. Although the NFIP maps and FIS reports are prepared according to rigorous technical 

standards, FEMA recognizes that changes to the maps and reports may be necessary. Some 

reasons for the changes are due to improvements in the techniques used in assessing flood risks, 

changes in physical conditions in the floodplains or watersheds, and the availability of new 

scientific or technical data. 

In addition, the limitations imposed by the scales at which the maps are prepared may result in 

individual properties being inadvertently included in SFHAs. FEMA has developed a process, 

referred to as a Letter of Map Amendment (LOMA), to correct these inadvertent inclusions. A 

LOMA results from an administrative procedure that involves the review of technical data 

submitted by the owner or lessee of property who believes the property has incorrectly been 

included in a designated SFHA. A LOMA amends the currently effective FEMA map and 

establishes that a specific property is not located in an SFHA, thereby removing the Mandatory 

Flood Insurance Purchase Requirement. 

FEMA has similarly established administrative procedures for changing effective maps based on 

new or revised scientific or technical data that reflect other changes to the floodplain including 

projects such as fill and flood control measures. The map actions are referred to as Letter of 

Map Revision based on Fill (LOMR-F) and Letter of Map Revision (LOMR) respectively. 

The NFIP regulations allow FEMA to revise and amend maps and FIS reports, as warranted, or 

after it receives requests from community officials and individual property owners. To help 

FEMA ensure that the maps and reports present information that accurately reflects existing 

flood risks, the NFIP regulations require that each NFIP community inform FEMA of any 

physical changes that affect BFEs in the community and, within 6 months of the date that such 

data are available, submit those data that show the effects of the changes. 

In making revisions and amendments, FEMA must adhere to the same engineering standards 

applied in the preparation of the original NFIP maps and FIS reports. Therefore, when 

9
NFIP Description August 1, 2002 

requesting changes to NFIP maps and reports, community officials and property owners are 

required to submit adequate supporting data. Those data enable FEMA to review and evaluate 

the requests and to carry out its responsibility of ensuring that the flood-risk information 

presented is scientifically and technically correct. 

Because LOMAs, LOMR-Fs, and LOMRs officially amend or revise the flood maps, they must 

reflect existing conditions, such as an “as-built” project. Communities, developers, and property 

owners also frequently submit requests for proposed projects in floodplain areas to FEMA for 

review and comment. Such requests typically include data and analyses of the pre- and postproject conditions so that FEMA can ascertain the impact on flood hazards of the proposed 

project. FEMA reviews such requests using the same data and engineering standards that are 

used for “as-built” requests. FEMA’s response is provided in the form of a “conditional” 

LOMA, LOMR-F, or LOMR, which state whether the proposed project, if built as proposed, 

would justify a map revision. A conditional LOMA, LOMR-F, or LOMR does not constitute a 

building permit; the authority to approve projects and issue building permits lies with the local 

community and, in some instances, State agencies. 

Mapping the Coastal Barrier Resource System or Otherwise Protected Areas 

Congress passed the Coastal Barrier Resources Act in 1982 and the Coastal Barrier Improvement 

Act in 1990, defining and establishing a system of protected coastal areas (including the Great 

Lakes) and Otherwise Protected Areas (OPAs) known as the Coastal Barrier Resources System 

(CBRS). The Acts provide protection to CBRS areas by prohibiting most expenditures of 

Federal funds in CBRS areas, including the sale of flood insurance for buildings constructed or 

substantially improved after the effective date of the CBRS area. These prohibitions refer to 

"any form of loan, grant, guarantee, insurance, payment, rebate, subsidy or any other form of 

direct or indirect Federal assistance," with specific and limited exceptions. 

Congress designated the initial CBRS areas in 1982 and is the only entity that may authorize a 

revision to CBRS boundaries. Revisions to CBRSs are typically authorized by Congress based 

on State and local requests as well as recommendations made by the U.S. Fish and Wildlife 

Service. Because of the prohibition on the sale of flood insurance for buildings constructed or 

substantially improved after the CBRS effective date, it is critical to depict these areas on 

FIRMs. Thus, FEMA, in cooperation with the U.S. Fish and Wildlife Service, transfers the 

boundaries from Congressionally-adopted source maps, titled “Coastal Barrier Resource 

System,” to FIRMs so that insurance agents will not inadvertently sell flood insurance policies 

for buildings not eligible for the purchase of flood insurance. 

Map Modernization Program 

Nationwide, approximately 75 percent of the FEMA flood maps are more than 10 years old. 

Because flood hazards are dynamic and usually increase over time as development occurs, old 

maps tend to understate actual, existing flood hazards. Additionally, most of the maps were 

produced using now antiquated manual cartographic techniques. The primary reason for the 

existing backlog of outdated maps has been inadequate program funding over the past 20 years. 

10
NFIP Description August 1, 2002 

As a result, in 1997, FEMA designed a plan to modernize the FEMA flood-mapping program. 

With implementation of the modernization plan, the flood hazard information provided to 

communities would be more accurate and extensive, resulting in safer communities. The plan 

proposes a 7-year upgrade to the flood map inventory and an enhancement of products, services, 

and process that entails: 

Converting Level-1 Flood Map Upgrades that entail converting the maps to a digital format 

for approximately 11,140 communities (55,700 map panels)—this includes resolving 

community-identified map maintenance needs for 16,500 map panels; upgrading existing 

digitally produced 20,700 map panels to the new digital FIRM specifications; and when 

feasible, cost-effectively enhancing the flood theme (e.g., redelineation of floodplain 

boundaries on updated topography or limited detailed studies to update approximate flood 

zones). 

•

•

•

•

•

•

Conducting Level-2 Flood Map Upgrades that entail all of the features of Level 1 Flood Map 

Upgrades plus incorporating updated detailed flood data through studies and restudies for 

approximately 4,700 communities with inadequate floodplain mapping (23,540 map panels); 

Flood map creations for approximately 2,700 flood-prone communities without flood maps 

(13,700 map panels); 

Integrating communities, States, and regional agencies into the mapping process through the 

Cooperating Technical Partners (CTP) initiative; 

Converting the maps to metric, as required by Executive Order 12770, and to the North 

American Vertical Datum of 1988; and 

Improving customer service to make the maps easier to obtain and use, including electronic 

and digital printing and distribution. 

Over the proposed 7-year modernization period, the entire flood map inventory would be 

converted to a digital format. Additionally, approximately 13,700 new digital map panels would 

be created for flood-prone communities that do not currently have flood maps. 

As a cornerstone of the plan, FEMA continues to fully integrate communities, States, and 

regional agencies in the flood mapping process through the Cooperating Technical Partners 

(CTP) program. To date, more than 115 partners have joined the CTP program, which includes 

two large remapping efforts for the States of New York and North Carolina. The program 

initiated for the State of North Carolina is the first statewide flood mapping initiative and 

includes 16 other Federal agencies. The CTP initiative allows partnering entities to perform all 

or portions of data collection and mapping tasks. Cooperating Technical Partners can use the 

Guidelines and Specifications for Flood Hazard Mapping Partners in performing supporting 

technical analyses and preparation of flood hazard maps. 

To date, funding to implement the map modernization plan has not been made available. 

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NFIP Description August 1, 2002 

Mapping Future Conditions 

Historically, flood hazard information presented on NFIP flood maps has been based on the 

existing conditions of the floodplain and watershed. The primary reason is that future land-use 

development, such as urban growth, is uncertain and difficult to predict and has not, therefore, 

been considered in FISs. 

In recent years, a number of communities that are experiencing urban growth have expressed 

interest in using hydrology based on future conditions to regulate floodplain development. 

FEMA conducted an extensive evaluation to determine whether future conditions flood hazard 

information could and should be placed on FIRMs and in the accompanying FIS. On November 

27, 2001, FEMA issued a final rule that allows for floodplains that reflect future conditions 

hydrology to be shown on the FIRM at the request of the community. 

The future conditions flood hazard information will be provided for informational purposes only 

and it is up to the community to decide whether to use the information to regulate floodplain 

development. When future conditions floodplains are included on the FIRM, both the existing 

conditions floodplain and the future conditions floodplain will be shown. The existing 

conditions data will continue to be used to establish flood insurance rates and to determine if 

flood insurance is required. The new procedure will allow FEMA to maintain national standards 

while at the same time providing additional information for use by the community. 

 

Floodplain Management 

Section 1315 of the 1968 Act prohibits FEMA from providing flood insurance to property 

owners unless the community adopts and enforces floodplain management criteria established 

under the authority of Section 1361(c) of the Act. These criteria are established in the NFIP 

regulations at 44 CFR §60.3. The community must adopt a floodplain management ordinance 

that meets or exceeds the minimum NFIP criteria. Under the NFIP, “community” is defined as: 

“any State, or area or political subdivision thereof, or any Indian tribe or authorized 

tribal organization, or Alaska Native village or authorized native organization, which 

has authority to adopt and enforce floodplain management regulations for the areas 

within its jurisdiction.” 

The Program has served as an important impetus for the establishment of floodplain management 

programs nationwide in the approximately 19,700 participating communities and most States and 

territories. Community participation in the NFIP is voluntary. Prior to the creation of the NFIP, 

floodplain management as a practice was not well established – only a few States and several 

hundred communities actually regulated floodplain development. For many communities, the 

NFIP was the community’s initial exposure to land use planning and community regulations. 

The power to regulate development in the floodplain, including requiring and approving permits, 

inspecting property, and citing violations, is granted to communities under a State’s police 

powers. FEMA has no direct involvement in the administration of local floodplain management 

ordinances. Since the Federal Government does not have land use authority, the NFIP is based 

12
NFIP Description August 1, 2002 

on the Federal government’s power to spend under the Constitution rather than any Federal 

authority to regulate land use. 

Minimum NFIP Floodplain Management Requirements 

Under the NFIP, the minimum floodplain management requirements that a community must 

adopt depends on the type of flood risk data (detailed FIS and FIRMs with BFEs or approximate 

A Zones and V Zones without BFEs) that the community has been provided by FEMA. Under 

the NFIP regulations, participating NFIP communities are required to regulate all development in 

SFHAs. “Development” is defined as: 

“any man-made change to improved or unimproved real estate, including but not limited to 

buildings or other structures, mining, dredging, filling, grading, paving, excavation or 

drilling operations or storage of equipment or materials.” 

Before a property owner can undertake any development in the SFHA, a permit must be obtained 

from the community. The community is responsible for reviewing the proposed development to 

ensure that it complies with the community’s floodplain management ordinance. Communities are 

also required to review proposed development in SFHAs to ensure that all necessary permits 

have been received from those governmental agencies from which approval is required by 

Federal or State law, such as 404 wetland permits from the Army Corps of Engineers or permits 

under the Endangered Species Act. 

Under the NFIP, communities must review subdivision proposals and other proposed new 

development, including manufactured home parks or subdivisions to ensure that these development 

proposals are reasonably safe from flooding and that utilities and facilities servicing these 

subdivisions or other development are constructed to minimize or eliminate flood damage. 

In general, the NFIP minimum floodplain management regulations require that new construction or 

substantially improved or substantially damaged existing buildings in A Zones must have their 

lowest floor (including basement) elevated to or above the Base Flood Elevation (BFE). Nonresidential structures in A Zones can be either elevated or dry-floodproofed. In V Zones, the 

building must be elevated on piles and columns and the bottom of the lowest horizontal structural 

member of the lowest floor of all new construction or substantially improved existing buildings 

must be elevated to or above the BFE. The minimum floodplain management requirements are 

further described below: 

For all new and substantially improved buildings in A Zones: 

• All new construction and substantial improvements of residential buildings must have the 

lowest floor (including basement) elevated to or above the BFE. 

• All new construction and substantial improvements of non-residential buildings must either 

have the lowest floor (including basement) elevated to or above the BFE or dry-floodproofed 

to the BFE. Dry floodproofing means that the building must be designed and constructed to be 

watertight, substantially impermeable to floodwaters. 

13
NFIP Description August 1, 2002 

• Buildings can be elevated to or above the BFE using fill, or they can be elevated on extended 

foundation walls or other enclosure walls, on piles, or on columns. 

• Because extended foundation or other enclosure walls will be exposed to flood forces, they 

must be designed and constructed to withstand hydrostatic pressure otherwise the walls can 

fail and the building can be damaged. The NFIP regulations require that foundation and 

enclosure walls that are subject to the 100-year flood be constructed with flood-resistant 

materials and contain openings that will permit the automatic entry and exit of floodwaters. 

These openings allow floodwaters to reach equal levels on both sides of the walls and 

thereby lessen the potential for damage. Any enclosed area below the BFE can only be used 

for the parking of vehicles, building access, or storage. 

In addition, to the above requirements, communities are required to select and adopt a regulatory 

floodway in riverine A Zones. The area chosen for the regulatory floodway must be designed to 

carry the waters of the 1-percent-annual-chance flood without increasing the water surface 

elevation of that flood more than one foot at any point. Once the floodway is designated, the 

community must prohibit development within that floodway which would cause any increase in 

flood heights. The floodway generally includes the river channel and adjacent floodplain areas 

that often contain forests and wetlands, an area estimated at 5.8 million acres (or over 9,000 

square miles) on the FIRMs. This requirement has the effect of limiting development in the most 

hazardous and environmentally sensitive part of the floodplain. 

 

For all new and substantially improved buildings in V Zones: 

• All new construction and substantial improvements of buildings must be elevated on piles 

and columns so that the bottom of the lowest horizontal structural member of the lowest floor 

is elevated to or above the BFE. No fill can be used for structural support. 

• All new construction and substantial improvements of buildings must be properly anchored 

to resist flotation, collapse, and lateral movement. 

• In V Zones, the velocity water and wave action associated with coastal flooding can exert 

strong hydrodynamic forces on any obstruction to the flow of water. Standard foundations 

such as solid masonry walls or wood-frame walls will obstruct flow and be at risk to damage 

from high-velocity flood forces. In addition, solid foundation walls can direct coastal 

floodwaters into the elevated portion of the building or into adjacent buildings. The result 

can be structural failure of the building. For these reasons, the area below the lowest floor of 

the elevated building in V Zones must either be free of obstruction, or any enclosure must be 

constructed with open wood lattice-panels or insect screening or, be constructed with nonsupporting/non-load bearing breakaway walls which meet applicable NFIP criteria. Any 

enclosed area below the BFE can only be used for the parking of vehicles, building access, or 

storage. 

• In order to further protect structures from damaging wave impacts, structures must be located 

landward of the reach of mean high tide. Furthermore, man-made alteration of sand dunes 

and mangrove stands, which would increase potential flood damage, are prohibited within V 

Zones. 

14
NFIP Description August 1, 2002 

In responding to the public’s desire to have an enclosed area below an elevated building, but 

recognizing the potential risks to lives and property, the NFIP floodplain management 

regulations permit certain limited uses of enclosures below the lowest floor in A Zones or V 

Zones. Under the NFIP, the enclosed area below an elevated building in an A Zone or V Zone 

can only be used for the parking of vehicles, building access, or storage. The allowance of these 

uses below the BFE is permitted because the amount of damage caused by flooding to these 

areas can easily be kept to a minimum by following the performance standards for the design and 

construction of enclosures in A Zones and V Zones described above and by using flood-resistant 

building materials. To further minimize flood damages, mechanical, electrical, plumbing 

equipment, and other service facilities must be designed and/or located above the BFE so as to 

prevent damage during conditions of flooding. 

The Program has led to a large reduction in potential average annual flood damages for new 

construction (Post-FIRM structures). The NFIP’s loss experience indicates that $1 billion in flood 

damages are avoided each year as a result of the NFIP floodplain management regulations for new 

construction. Structures built to NFIP criteria experience 80 percent less damage through reduced 

frequency and severity of losses. 

On the other hand, there is still significant flood damage potential for existing flood-prone buildings 

(Pre-FIRM structures). According to estimates developed in a 1997 study, there are 6.6 million 

structures located in SFHAs identified on the FIRMs. These 6.6 million structures include 6.2 

million residential structures (representing about 8 million housing units) and 0.4 million nonresidential structures. Of the 6.6 million structures, 4.3 million Pre-FIRM structures were built prior 

to the issuance of a community’s FIRM and the adoption of floodplain management regulations. 

The problem is not with the total universe of Pre-FIRM buildings. The 4.3 million Pre-FIRM 

structures have varying degrees of flood risk with just over half of these structures estimated to have 

their lowest floor below the BFE. Of those Pre-FIRM structures that have their lowest floor below 

the BFE, a smaller group of Pre-FIRM structures have their lowest floor well below the BFE and 

are subject to the severest risk. 

The NFIP substantial improvement requirement and substantial damage requirement provides a 

mechanism to ensure that a significant increase in investment in existing Pre-FIRM buildings will 

receive needed protection from the flood risk. If a community determines that the cost of 

improvements to a home or business equals or exceeds 50% of the market value of the building, the 

building is considered a “substantial improvement”. If a community determines that the cost of 

restoring a home or business equals or exceeds 50 of the market value of the building before the 

damage from any origin occurred, the building is considered "substantially damaged". A 

substantially improved building or substantially damaged building must meet the minimum 

requirements of the NFIP. It is the community’s responsibility to make substantial improvement or 

substantial damage determinations 

The substantial damage requirement of the NFIP has been difficult for some communities to 

enforce. One of the primary reasons for this has been that local officials find it difficult to enforce 

the requirement on property owners who do not have the financial resources to both repair and bring 

the buildings into compliance. In the last ten years, financial resources to mitigate substantially 

damaged buildings have improved. With passage of the National Flood Insurance Reform Act of 

15
NFIP Description August 1, 2002 

1994, activities that support reducing future damages to existing flood-prone buildings that have 

been substantially damaged now include: Increased Cost of Compliance coverage and the Flood 

Mitigation Assistance (FMA) program. 

In addition, FEMA’s Hazard Mitigation Grant Program (HMGP) under Section 404 of the Robert T. 

Stafford Disaster Relief and Emergency Relief Act of 1988, as amended, also provides considerable 

resources in reducing or eliminating future flood damages to existing structures after a flood 

disaster. The Disaster Mitigation Act of 2000, which amended the Stafford Act, will provide 

additional resources for mitigation projects and planning. These activities are further described 

under “Other NFIP Activities” below. FEMA’s resources combined with resources from other 

Federal agencies, such as the Department of Housing and Urban Development and the Small 

Business Administration, have improved the level of compliance with the substantial damage 

requirement by providing property owners with the financial help they need to meet Program 

requirements. 

A number of the existing Pre-FIRM structures experience repeat flood damages and represent a 

significant problem for the Program. NFIP Repetitive Loss Properties have been generally defined 

as those that have had at least two losses of $1,000 or more within any 10-year period. Currently 

there are about 45,000 insured repetitive loss structures in the country. These buildings represent a 

serious drain on the National Flood Insurance Fund and have accounted for nearly one-third of all 

paid losses. The NFIP Regulations do not include specific criteria to address repetitively damaged 

structures similar to the substantial damage requirement. However, FEMA has developed a 

Repetitive Loss Strategy to identify properties throughout the country that are most at risk for repeat 

flooding, and to reduce their exposure through targeted buyouts, relocation, and elevation. The 

strategy targets a subset of Repetitive Loss Properties that includes currently insured properties that 

have 2 or 3 losses where the cumulative flood insurance claim payments are greater than the 

building value or those properties that have had 4 or more losses. These represent around 10,000 

buildings. FEMA’s mitigation programs are being focused on these buildings, which will result in 

significant reductions in NFIP claims and overall flood damages as they are mitigated. 

Ordinance Adoption 

Once FEMA provides a community with the flood hazard information upon which floodplain 

management regulations are based, the community is required to adopt a floodplain management 

ordinance that meets or exceeds the minimum NFIP requirements. FEMA can suspend 

communities from the Program for failure to adopt once the community is notified of being 

flood-prone or for failure to maintain a floodplain management ordinance that meets or exceeds 

the minimum requirements of the NFIP. The procedures for suspending a community from the 

Program for failure to adopt or maintain a floodplain management ordinance that meets or 

exceeds the minimum requirements of the NFIP are established in the NFIP regulations at 44 

CFR §59.24(a) and (d). 

Since 1968, just over 2,300 communities have been suspended for failure to adopt. Most of 

these communities subsequently adopted a compliant ordinance and were eventually reinstated 

into the Program. A community either has or does not have a compliant ordinance. There are 

currently 261 communities suspended from the Program for failure to adopt floodplain 

16
NFIP Description August 1, 2002 

management regulations that meet or exceed the minimum NFIP requirements. These are 

generally small communities with little or no floodplain development. 

In these suspended communities, flood insurance is not available to property owners. In 

addition, these communities are subject to limitations on Federal financial assistance in Section 

202(a) of 1973 Act which prohibits Federal officers or agencies from approving any form of 

loan, grant, guaranty, insurance, payment, rebate, subsidy, disaster assistance loan or grant, for 

acquisition or construction purposes within SFHAs. For example, this would prohibit mortgage 

loans guaranteed by the Department of Veterans Affairs, insured by the Federal Housing 

Administration, or secured by the Rural Economic and Community Development Services. In 

the case of disaster assistance under the Robert T. Stafford Disaster Relief and Emergency 

Assistance Act of 1988, as amended, this prohibition only applies to assistance in connection 

with a flood. 

Furthermore, Section 202(b) of the 1973 Act requires federally regulated lending institutions to 

notify the purchaser or lessee of improved real property situated in a SFHA whether Federal 

disaster assistance will be available when such property is being used to secure a loan that is 

being made, increased, extended or renewed. 

Monitoring Community Compliance 

FEMA monitors communities to ensure that they have adopted an ordinance that meets or 

exceeds the minimum NFIP floodplain management criteria and to ensure that they are 

effectively enforcing their ordinance. While the NFIP floodplain management criteria are 

administered by States and communities through their floodplain management regulations, 

FEMA’s role is to provide technical assistance and to monitor communities for compliance with 

the minimum NFIP criteria. If communities do not adequately enforce their floodplain 

management regulations, they can be placed on probation and potentially suspended from the 

Program following probation. 

FEMA or States on behalf of FEMA conduct Community Assistance Visits (CAVs) and 

Community Assistance Contacts (CACs) to monitor community floodplain management 

programs. A CAV is a scheduled visit to an NFIP community for the purpose of conducting a 

comprehensive assessment of the community’s floodplain management program. The CAV is 

also used as an opportunity to provide technical assistance to the community. A CAV typically 

involves a tour of the floodplain, a meeting with local floodplain management officials, and an 

examination of the community’s floodplain development permit and variance files. The visit is 

documented in a follow-up letter to the community. If any issues are identified during the CAV, 

such as a possible floodplain violation or program deficiency, these issues are also addressed in 

the follow-up letter. The community is responsible for resolving any program deficiencies or 

remedying any violations identified. 

A CAC is used to establish a contact with a community for the purpose of determining if any 

problems or issues exist and to offer the community assistance if necessary. CACs can be 

conducted by means of a telephone call or brief visit. While CACs are a less comprehensive 

assessment of a community’s floodplain management program, sufficient information about the 

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NFIP Description August 1, 2002 

community’s floodplain management program can be obtained in order to determine whether 

there are more serious floodplain management problems in the community. 

Several thousand local officials are contacted annually through CAVs, CACs, and other activities 

such as workshops and formal floodplain management courses. Also, a number of local officials 

directly contact State or FEMA regional staff for technical assistance. Because of resource 

limitations in conducting CAVs and CACs in any given year, FEMA has established criteria in 

prioritizing which communities will be visited or contacted. Basically, a CAV should be 

conducted in communities with known or suspected program deficiencies or potential violations 

or communities experiencing development in the floodplain. CACs are not conducted in 

communities where more serious floodplain problems or issues are known or suspected. CACs 

are generally used as a screening tool for determining whether a community should receive the 

level of attention of a CAV. Together, they provide FEMA with an effective means of 

monitoring participating communities and providing technical assistance. 

FEMA staff can also monitor enforcement by communities through applications for flood 

insurance policies, which often identify buildings that are potentially in violation of the NFIP 

minimum floodplain management requirements. In addition, FEMA can monitor enforcement by 

communities through the LOMR (Letter of Map Revision) process. Requests through the LOMR 

process to remove land from the floodplain designation based on fill may indicate that floodplain 

areas have been improperly filled such as in a floodway or in a coastal V Zone or that a building has 

its lowest floor below the BFE. The respective FEMA regional office will follow-up with the 

community to determine whether the building or floodplain development is in compliance with the 

community’s floodplain management regulations and may conduct a CAV if warranted. 

Actions Against Communities For Failure to Enforce 

Most deficiencies in a community’s floodplain management program or violations of local 

ordinances are generally due to lack of understanding of the NFIP requirements, lack of technical 

skills, failure to understand the rationales behind the NFIP requirements, or lack of an 

appreciation of the insurance implications and other consequences of a decision. Most problems 

that are identified can be solved through community assistance efforts. When this does not 

happen, FEMA has procedures in place to conduct an enforcement action in order to obtain 

compliance by the community. If a community does not adequately enforce its floodplain 

management regulations, it can be placed on probation or suspended from the Program. 

Following a CAV, the community must be given reasonable time to demonstrate buildings are 

compliant with the ordinance or it must correct any program deficiencies and remedy any 

violations identified during the visit. This affords the community the appropriate due process. It 

also makes placing a community on probation, if necessary, and potentially suspending a 

community legally defensible. As long as a community is making adequate progress toward 

correcting program deficiencies and remedying violations, FEMA will not initiate formal 

probation. It is important that the community work toward resolving its problems to ensure that 

future flood damages and potential loss of life are mitigated. FEMA, however, will initiate 

probation in a community that does not make sufficient progress in resolving its floodplain 

management issues or chooses not to address them. The procedures for placing a community on 

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NFIP Description August 1, 2002 

probation or suspending a community from the Program are established in the NFIP regulations 

at 44 CFR §59.24(b) and (c). 

When it becomes necessary to initiate probation, FEMA notifies the community that it will be 

placed on probation upon 120 days if the community does not demonstrate it has corrected its 

program deficiencies and has remedied violations to the maximum extent possible. While 

probation has no effect on the availability of flood insurance, an additional charge of $50 is 

added to the premium for each policy for a period of at least one year. A 120-day notice is 

provided to the community so that FEMA can then give policyholders adequate notification of 

the impending probation and the additional premium that will be charged. According to the 

NFIP regulations, FEMA must provide policyholders a notice at least 90 days before the 

probation is to begin. During the 120-day period, the community has the opportunity to avoid 

probation by demonstrating compliance with the NFIP requirements. 

When a community is placed on probation, FEMA sends a letter to the community establishing 

new compliance deadlines. If the community fails to take remedial measures during the period 

of probation, the community may be suspended from the NFIP. When a community is 

suspended from the NFIP, flood insurance is no longer available. Also, the community is subject 

to limitations on Federal financial assistance described above under Ordinance Adoption. 

As of July 23, 2002, there are 7 communities currently on probation nationwide. Since 1986, 

107 communities have been sent a formal notice that they will be placed on probation if they do 

not address the program deficiencies or violations identified. Out of the 107 communities, 51 

have actually been placed on probation. The remaining communities satisfactorily resolved their 

program deficiencies and violations before being placed on probation. Nine communities were 

eventually suspended from the Program for failure to enforce the community’s floodplain 

management ordinance and 4 of those communities are currently suspended for noncompliance. 

The 5 remaining communities corrected their deficiencies and were reinstated into the NFIP. 

Most communities comply with NFIP requirements prior to FEMA’s issuing a probation notice. 

Communities often recognize that it is in everyone’s best interest to bring the community into 

compliance before probation or suspension occurs. One of the primary reasons communities 

comply is to avoid disruptions in the real estate market that would result with the potential loss 

of flood insurance. 

FEMA must follow its procedures for placing communities on probation or suspending 

communities from the Program to ensure that adequate notifications and due process are 

provided. 

Actions Against Individual Properties For Failure to Comply 

There are certain options that can be applied to individual structures that are determined to be in 

violation of the community’s floodplain management ordinance. If an insured structure is identified 

as a violation of the community’s floodplain management ordinance, FEMA can have the insurance 

company that insures the building review the information and possibly rerate the structure to reflect 

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NFIP Description August 1, 2002 

the increased risk to the structure. This can result in significantly higher flood insurance rates on the 

structure, which may cause the property owner to bring the building into compliance. 

In addition, Section 1316 of the 1968 Act provides for the denial of flood insurance coverage for 

any property which the Administrator of the FIMA finds has been declared by a duly constituted 

State or community to be in violation of State or community floodplain management regulations. 

Section 1316 can only be implemented in instances when an appropriate authority in the State or 

community submits a declaration to the Administrator of the FIMA specifically stating that the 

structure is a violation. Currently, there are over 500 structures that have been denied flood 

insurance coverage under Section 1316. 

State Floodplain Management Role 

States also have a role in the NFIP and many have established State floodplain management 

programs. Each State has designated an NFIP State Coordinating Agency as a point of contact 

for the NFIP. Generally, the State Coordinating Agency is the State environmental or natural 

resources agency or the State emergency management agency. Most States provide technical 

assistance to communities using FEMA funding under the Community Assistance Program 

(CAP) – State Support Services Element, their own funding, or a combination of the two. CAP 

was developed in recognition that there were not sufficient FEMA staff resources to provide 

technical assistance to or monitor compliance with all the participating NFIP communities 

(currently 19,700) and that other resources would have to be used. 

Many States have adopted floodplain management statutes and regulations and have established 

and funded their own floodplain management programs. States must also have floodplain 

management regulations or executive orders in place that meet the minimum requirements of the 

NFIP for State-owned properties in SFHAs. Where a State requires that communities adopt 

more restrictive requirements than the NFIP minimum requirements, such as a more restrictive 

floodway or additional freeboard (requiring new construction to be elevated to a level 1 or more 

feet higher than the BFE), the State requirements take precedence over the NFIP minimum. 

Post-Disaster Assessments 

The Federal Insurance and Mitigation Administration (FIMA) and the FEMA Regional Offices 

conduct field investigations following major flood disasters to evaluate how well the NFIP 

floodplain management requirements performed. During these investigations, a team of experts 

inspect disaster-induced damages to residential and commercial buildings and other structures 

and infrastructure; conduct forensic engineering analyses to determine causes of structural and 

building component failures and successes; and evaluate local design practices, construction 

methods and materials, building codes, and building inspection and code enforcement processes. 

In addition, the teams make recommendations of actions that State and local governments, the 

construction industry, building code organizations, and individual property owners can take to 

reduce future damages and to protect lives and property in flood hazard areas. 

Lessons learned by analyzing these building performance findings are also used by FIMA to 

fine-tune and improve NFIP Floodplain Management Regulations related to building 

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NFIP Description August 1, 2002 

performance, designs, methods, and materials and to develop technical guidance. These 

assessments are documented by FIMA in Flood Damage Assessment Reports and Building 

Performance Assessment Team (BPAT) reports. The information and findings in these reports 

are distributed widely using a variety of methods including technical manuals, workshops, and 

the Internet, and through formal training courses. 

Providing Technical Assistance 

In addition to technical assistance provided to communities as part of a CAV or CAC, FEMA 

staff provides technical and planning assistance through workshops and other contacts with 

community officials, property owners, builders and developers, architects and engineers, 

surveyors, lenders, and other NFIP constituents. Following major flood disasters, FEMA staff 

work closely with communities in providing technical assistance on the NFIP floodplain 

management requirements, particularly the substantial damage requirement, and on developing a 

reconstruction strategy for property impacted by floods to determine appropriate mitigation 

measures, such as elevation, acquisition, or relocation of flood-damaged structures. 

FEMA conducts extensive training of local and State officials responsible for administering 

floodplain management programs. FEMA conducts a weeklong Resident Floodplain 

Management Course at FEMA’s Emergency Management Institute (EMI) several times a year. 

Through this course, FEMA has trained over 1,000 State and local floodplain management 

officials. An Independent Study Floodplain Management Course is also offered through EMI. 

FEMA also offers Resident Courses at EMI on mitigation, including a course on retrofitting 

flood-prone residential structures and a course on coastal construction. The FEMA regional 

offices and States deliver field-deployed versions of the EMI Floodplain Management Course as 

well as conduct throughout the year a number of floodplain management workshops that they 

develop. 

Extensive publications have been produced on the NFIP, including mitigation measures that can 

be undertaken to minimize or eliminate future flood damages. Examples of these publications 

include: 

• Homeowner’s Guide to Retrofitting: Six Ways to Protect Your House from Flooding 

• Answers to Questions about Substantially Damaged Buildings 

• Guidance for State and Local Officials on Increased Cost of Compliance Coverage 

• Managing Floodplain Development in Approximate Zone A Areas 

• Coastal Construction Manual 

• Floodplain Management Bulletin 1-98 Use of Flood Insurance Study (FIA) Data as 

Available Data 

• Technical Bulletin series on NFIP building criteria, such as TB 1-93, Openings in 

Foundation Wall and TB 2-93 Flood-Resistant Materials Requirements. (Note: there are 

currently 11 Technical Bulletins published.) 

A complete list of publications can be found on FEMA’s website at www.FEMA.gov. 

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NFIP Description August 1, 2002 

FEMA and the American Planning Association (APA) jointly developed a publication entitled 

Subdivision Design in Flood Hazard Areas that encourages use of innovative planning tools to 

limit development in the floodplain. This document was published in 1997 as part of their 

Planning Advisory Service series in an effort to use APA’s distribution system to reach out to the 

planning community. 

FEMA also promotes and coordinates governmental and non-governmental floodplain 

management activities and is a consulting agency to other Federal agencies on issues relating to 

implementation of Executive Order (E.O.) 11988, Floodplain Management. E.O. 11988 

establishes a decision-making process for Federal agencies to avoid the long- and short-term 

adverse impacts on floodplains unless no practicable alternatives exist. If there is no practicable 

alternative, the Federal agency must mitigate to ensure that the action minimizes any loss of life 

and property and loss of natural and beneficial values. 

Flood Insurance 

Section 1304 of the 1968 Act authorizes the Director of FEMA to establish and carry out “a 

national flood insurance program which will enable interested persons to purchase insurance 

against loss resulting from physical damage to or loss of real property or personal property” 

resulting from flood. Flood insurance provides the mechanism by which floodplain occupants 

are compensated for flood damages. Flood insurance also provides a way for some of the 

financial burden of flood losses to be removed from taxpayers, such as for Federal disaster 

assistance and casualty loss deductions under Federal income taxes. 

The number of policies in force in the United States has increased from about 95,000 before the 

Flood Disaster Protection Act of 1973, to 2.2 million in 1989, to over 4.3 million currently. Any 

property owner of insurable property may purchase flood insurance coverage, provided that the 

community in which the property is located is participating in the NFIP. The amount of flood 

insurance coverage in force as of March 31, 2002 is over $606 billion. 

The National Flood Insurance Fund (NFIF) is the instrument through which the Federal 

Government fulfills its financial responsibilities for the NFIP. In fiscal year 2001, FIMA took in 

about $1.5 billion in revenue, mostly from insurance premiums and a $30 Federal Policy fee on 

each policy sold or renewed. Revenues from insurance premiums are used to pay losses, pay 

interest to the Treasury, service the policies, and pay Increased Cost of Compliance claims that 

provide financial resources for protecting buildings from future flood damages. Revenue from 

the Federal Policy Fee supports almost all the flood mapping and floodplain management 

activities of the Program including the Flood Mitigation Assistance program. 

Sale of Flood Insurance 

FEMA works closely with the insurance industry to facilitate the sale and servicing of flood 

insurance policies. Flood insurance under the NFIP is sold to owners of property located in 

NFIP communities through two mechanisms: 1) through state-licensed property and casualty 

insurance agents and brokers who deal directly with FEMA; and 2) through private insurance 

companies with a program created in 1983 known as “Write Your Own” (WYO). 

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NFIP Description August 1, 2002 

The WYO Program was started to increase the NFIP policy count and geographic distribution of 

policies by taking advantage of the private insurance industry’s marketing channels and existing 

policy base to sell flood insurance. Eighty-six private insurance companies issue policies and 

adjust flood claims in their own names under the NFIP. The insurers receive an expense 

allowance and remit premium income in excess of this allowance to the Federal Government. 

FEMA pays losses through a letter of credit and sets the rates, coverage limitations, and 

eligibility requirements. The premium charged for NFIP flood coverage by a WYO Company is 

the same as that charged by the Federal Government through the direct program. Currently about 

95% of the flood policies issued under the NFIP are written through the WYO Program. 

The NFIP is not the only source of flood insurance. Businesses have been able to purchase flood 

insurance under Difference In Conditions policies from some insurance companies over the 

years. Flood coverage for residential homeowners has been more difficult to acquire from the 

private insurance market. The often-catastrophic nature of flooding has kept most insurers, 

outside of the NFIP, from writing this coverage. There are companies, such as Lloyds of 

London, that will, on a limited basis, provide flood insurance to some properties. 

Flood Insurance Policy 

The Standard Flood Insurance Policy (SFIP) specifies the terms and conditions of the agreement 

of insurance between FEMA or a WYO company as the Insurer and the Insureds. Insureds in 

NFIP communities include owners, renters, builders of buildings that are in the course of 

construction, condominium associations, and owners of residential condominium units. 

"Flood" is defined in the SFIP, in part, as: 

“A general and temporary condition of partial or complete inundation of two or more 

acres of normally dry land area or of two or more properties (at least one of which is 

your property) from overflow of inland or tidal waters, from unusual and rapid 

accumulation or runoff of surface waters from any source, or from mudflow.” 

The SFIP is issued on one of three available policy forms, depending on the occupancy of the 

building, to provide coverage for the peril of flood. 

• The Dwelling Form is used to insure 1-4 family buildings and individual residential 

condominium units. 

• The General Property Form covers residential buildings of more than 4 families as well as 

non-residential risks. 

• The Residential Condominium Building Association Policy (RCBAP) Form insures 

associations under the condominium form of ownership. 

Eligible Structures 

Sections 1305 of the 1968 Act establishes the scope of the flood insurance program for eligible 

structures. As a priority, the 1968 Act requires that flood insurance be made available to 1-4 

family residential buildings, small businesses, and churches. It gave permission after study to 

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NFIP Description August 1, 2002 

extend flood insurance to other residential properties, other business properties, agricultural 

properties, properties occupied by private nonprofit organizations, and properties owned by State 

or local governments. Currently insurance is available for all these types of properties and their 

contents with limited exceptions. Property owners in NFIP communities may purchase flood 

insurance whether the building or its contents is located in or outside the floodplain. 

In order to be eligible for flood insurance, a structure must have at least 2 solid walls and a roof, 

be principally above ground, and not entirely over water. This includes manufactured (i.e., 

mobile) homes that are anchored to permanent foundations and travel trailers without wheels that 

are anchored to permanent foundations and are regulated under the community's floodplain 

management and building ordinances or laws. Contents of insurable walled and roofed buildings 

are insurable under the policy as a separate coverage. 

Buildings entirely over water or principally below ground, gas and liquid storage tanks, animals, 

birds, fish, aircraft, wharves, piers, bulkheads, growing crops, shrubbery, land, livestock, roads, 

machinery or equipment in the open, and generally motor vehicles are not insurable. Most 

contents and finishing building materials located in a basement are not covered. Similarly, this 

coverage limitation applies to enclosures below the lowest elevated floor of an elevated building 

constructed after the FIRM became effective. 

Section 1316 of the 1968 Act authorizes FIMA to deny flood insurance "for any property which 

the Director finds has been declared by a duly constituted state or local zoning authority, or 

other authorized public body, to be in violation of a state or local laws, regulations, or 

ordinances". Section 1316 is initiated when an appropriate authority in the State or community 

submits a declaration to the Administrator of the FIMA specifically stating that the structure is a 

violation. When the Administrator of the FIMA makes a finding of a valid declaration of a 

violation, flood insurance is not available and no new policy can be written to cover the building, 

nor can an existing policy be renewed. 

Coastal Barrier Resources System 

The purchase of flood insurance is also limited in the Coastal Barrier Resources System. 

Congress passed laws limiting Federal expenditures in certain coastal areas and designating them 

as a part of the Coastal Barrier Resources System (CBRS) or as Otherwise Protected Areas 

(OPAs). In these areas, there is a prohibition for the expenditure of most Federal funds. These 

prohibitions refer to "any form of loan, grant, guarantee, insurance, payment, rebate, subsidy or 

any other form of direct or indirect Federal assistance," with specific and limited exceptions. 

Older buildings constructed before dates established by the Coastal Barrier Resources Act of 

1982 and the Coastal Barrier Improvement Act of 1990 remain eligible for Federal flood 

insurance while new construction or substantially improved structures located within these 

designated areas are not eligible for flood insurance. If, at the time of a loss, it is determined that 

a policy has been inadvertently issued on new construction or substantial improvements located 

in a CBRS area, any claim will be denied, the policy canceled, and the premium refunded. The 

CBRS areas are located in nearly 400 communities on the Atlantic and Gulf coasts and along the 

Great Lakes shores, and are delineated on the communities' flood maps and cover an estimated 3 

million acres. 

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NFIP Description August 1, 2002 

Waiting Period 

Unlike other property insurance, agents who write policies under the NFIP cannot “bind” 

coverage. A purchaser of flood insurance must wait 30 days from the date the application is 

completed and the premium presented before the policy becomes effective. A change in the 

waiting period from 5 days to 30 days was included as part of the National Flood Insurance 

Reform Act of 1994. This addressed a problem encountered where individuals with properties 

on larger rivers could wait until properties many miles upriver were flooding before purchasing 

coverage. 

There are however a several exceptions to the 30-day waiting period. For example, the 30-day 

waiting period will not apply when a new flood insurance policy is required in connection with 

the making, increasing, extension, or renewal of a loan, such as a second mortgage. The 30-day 

waiting period will not apply when an additional amount of insurance is required during the 13-

month period beginning on the effective date of a map revision. Also, the 30-day waiting period 

does not apply when a lender discovers that a loan that they have made is in a SFHA and is 

required to carry flood insurance under the Mandatory Flood Insurance Purchase Requirement. 

Coverage Amounts 

Under the NFIP there are maximum amounts of coverage available under the Emergency 

Program and the Regular Program. Under the Emergency Program, non-actuarial, federally 

subsidized rates in limited amounts are available prior to completion of a community’s Flood 

Insurance Study (FIS). Once more detailed risk data is provided to the community in the form of 

a FIRM and a FIS, the community is entered into the Regular Program and full limits of 

coverage are made available. Nearly all participating communities are in the Regular Program, 

and individuals can purchase flood insurance up to the following amounts. 

• Residential 1-4 family unit buildings and individual residential condominium units are 

written under the Dwelling Form and are eligible for up to $250,000 in building coverage and 

up to $100,000 in personal property coverage. 

• Residential buildings containing more than 4 units are eligible for up to $250,000 in building 

coverage and up to $100,000 on personal property. 

• Non-residential buildings are eligible for up to $500,000 in building coverage and up to 

$500,000 on personal property written on the General Property Form. 

• Under the RCBAP Form a condominium association can purchase coverage on a building, 

which includes all the units within the building and the improvements within the units, up to 

$250,000 times the number of units within the residential building. Personal property 

coverage on the form is limited to $100,000 per building. 

The average amount of insurance coverage purchased under the NFIP is $131,670, which 

includes coverage for the building and its contents. 

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NFIP Description August 1, 2002 

Other Coverages 

In addition to providing coverage for Building and Personal Property, the SFIP also provides 

Other Coverage for Debris Removal, Loss Avoidance Measures, and, under the Dwelling Form, 

coverage for Condominium Loss Assessments if the policy insures a condominium unit. The 

SFIP includes coverage for Pollution Damage if the damage results from a flood. All of these 

coverages are provided within the purchased policy limits. 

All three policy forms provide Increased Cost of Compliance (ICC) coverage. ICC coverage 

provides for the payment of a claim to help pay for the increased costs to comply with State or 

community floodplain management laws or ordinances after a flood in which a building has been 

declared substantially damaged or repetitively damaged. When an insured building is damaged 

by a flood and the community declares the building to be substantially or repetitively damaged, 

thus triggering the requirement to comply with a community floodplain management ordinance, 

ICC will help pay for the cost to elevate, relocate, demolish, or floodproof (non-residential 

buildings only) up to a maximum of $20,000. This coverage is in addition to the building 

coverage for the repair of actual physical damages from flood under the SFIP, but the total paid 

cannot exceed the maximum limit set by Congress for that type of building. 

The maximum limit of $20,000 will help property owners insured under the NFIP to pay for a 

portion or, in some cases, all of the costs of undertaking actions to protect homes and businesses 

from flood losses. In addition, an ICC claim payment can be used to complement and 

supplement funds under other mitigation programs such as the Flood Mitigation Assistance 

program and FEMA’s Hazard Mitigation Grant Program to assist communities in implementing 

measures to reduce or eliminate the long-term risk of flood damage to buildings insured under 

the NFIP. As of November 30, 2001, approximately 689 claims have been paid under the ICC 

coverage to elevate, relocate, demolish, or floodproof structures for just over $7.5 million. 

Ratemaking 

The 1968 Act separated the flood insurance ratemaking process into two distinct categories: 

subsidized rates and actuarial rates. Congress authorized the NFIP to offer policies at subsidized 

rates (at less than full actuarial risk rates) to existing buildings constructed on or before 

December 31, 1974 or before the effective date of the initial FIRM, whichever is later. Congress 

concluded that these buildings were built without the occupants’ full knowledge and 

understanding of the flood risk, and to rate them using the actuarial rates might make the flood 

insurance prohibitively expensive. FEMA estimates that risks in this class are paying on average 

only 35 to 40 percent of what the full risk premium should be to fund the long-term expectation 

of the flood losses to the building. Only such general rating factors as flood-risk zone, 

occupancy type, and building type are used to rate these buildings for flood insurance. Even 

though premiums for policies on existing buildings are subsidized, floodplain occupants pay for 

at least part of the cost of the insurance and no longer need most disaster assistance. (Note: 

Subsidized premiums mean that the insured is paying less than their full-risk premium. The 

difference between this full-risk premium and the amounts the insured pays is revenue that is 

foregone by the NFIP. There is no annual transfer from general taxpayer revenue.) 

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NFIP Description August 1, 2002 

In exchange for this subsidized insurance, participating communities must require new 

construction and substantially improved structures to meet the minimum requirements of the 

NFIP. The 1968 Act requires that FEMA charge full actuarial rates reflecting the complete flood 

risk to buildings constructed or substantially improved on or after the effective date of the initial 

FIRM for the community or after December 31, 1974, whichever is later. Once FEMA identifies 

the flood risk and makes the information available to communities, actuarial rating assures that 

those located in such areas bear the full risks associated with buildings in flood-prone areas. The 

flood insurance rates take into account a number of different factors including the flood-risk zone 

shown on the FIRM, the elevation of the lowest floor above or below the BFE, the type of 

building, the number of floors, and the existence of a basement or an enclosure. 

The flood-risk zone and the BFE are specific factors that can differentiate the flood risk in 

various areas of the country. For example, FEMA designates certain shallow flooding areas as 

AO and AH zones and some riverine areas as A and AE zones. FEMA designates areas subject 

to damage by waves and storm surge as V and VE zones and usually designates coastal areas 

landward of the V zone as A and AE zones. This difference reflects both the lower expectation 

of loss and our actual loss experience for these zones. 

While FEMA prints rate tables showing all possible flood risk zones and uses them for the entire 

country, FEMA does not show the same zones on every FIRM. For example, communities in 

Utah or Kansas do not have V zones because they are not subject to wave action and storm 

surge. However, where the same zone designation is used in two different areas of the country, it 

is because our engineering studies have shown that the degree of risk is very similar. 

Policyholders in AE and VE zones in one State are paying the same rates as policyholders in 

another State, if the lowest floor elevation of buildings is the same in relation to the BFE. This is 

because their risk of flooding is statistically the same. 

The insurance aspects of the NFIP have important implications for floodplain management. 

Buildings that comply with community floodplain management regulations pay premiums based 

on flood insurance rates that are in most cases significantly lower than the subsidized rates 

charged Pre-FIRM buildings. However, buildings constructed in violation of the community’s 

floodplain management ordinance pay much higher rates, which can be thousands of dollars a 

year for buildings substantially below the required elevations. FEMA bases the flood insurance 

rates for Post-FIRM structures on a building’s exposure to flood damage. Based on our loss 

experience on older structures built before establishment of NFIP minimum floodplain 

management requirements, FEMA can generally expect that they will suffer as much as 5 times 

the flood damage that compliant new structures experience. New buildings with non-compliant 

ground level enclosures in coastal areas can actually represent risks that are at least as poor as the 

average older Pre-FIRM buildings. 

Claims 

Claims under the NFIP require, as in other insurance, that the insured file a Proof of Loss. This 

must be submitted within 60 days of the loss, unless waived by the Administrator of the FIMA. 

Claims can be adjusted using either an independent adjuster or an adjuster employed by a WYO 

company. Under all NFIP policies, the insured pays a portion of the loss through the application 

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NFIP Description August 1, 2002 

of a deductible. In FY 2001, the NFIP paid 43,525 claims with an average claim payment of 

$26,079. 

The largest loss payout from a single flood event occurred in June 2001 as a result of Tropical 

Storm Allison, the NFIP’s first “billion dollar storm”. The second largest flood event in dollars 

paid was in Louisiana in May 1995 with payments totaling $583,952,604 and the third largest 

flood event in dollars paid resulted from Hurricane Floyd in September 1999 with payments 

totaling $433,384,943. 

The long-term goal of the NFIP is to be actuarially sound, including consideration for potential 

catastrophic loss years. In the near term, in establishing a fiscally sound program, the NFIP 

overall is intended to generate premium at least sufficient to cover expenses and losses relative to 

what is called the “historical average loss year”. Since the NFIP’s underwriting experience does 

not include truly catastrophic loss years, the historical average is less than the true long-term 

average. However, the premium income to the program is made up of two distinct pieces – PreFIRM polices charged less than full-risk premiums and Post-FIRM (and other) policies charged 

full-risk premiums including catastrophic loss considerations. 

The NFIP’s historical average loss year is approximately $700 million in loss payments. At this 

level, FIMA can maintain a Program that is self-supporting for that year. The NFIP has not been 

capitalized, but generates surplus during less-than-average-loss years and has borrowing 

authority with the U.S. Treasury to cover losses in the event that policyholder funds and 

investment income are inadequate. It does not use taxpayer funds to pay claims, operating 

expenses, or offset any shortfalls in premium from policies paying a subsidized flood insurance 

rate. Having twenty-six percent of policyholders paying significantly less than full-risk 

premiums impedes the ability to generate surplus or to repay borrowed funds, which depends on 

levels of annual losses that are highly variable. 

However, the possibility of borrowing funds from the Treasury would be present even if all NFIP 

policyholders paid full-risk premiums should a catastrophic or a series of catastrophic flood 

events occur. When the NFIP borrows money, it pays the Treasury back with interest. The NFIP 

paid off the Treasury debt in June 2001 from a high of $922 million in 1999. However, because 

of the extent of the flooding from Tropical Storm Allison in Texas and Louisiana resulting in 

over 30,000 claims, FEMA had to borrow funds from the Treasury. 

Since 1969, the NFIP has paid $11.9 billion in losses that would otherwise have been paid by 

taxpayers through disaster assistance or borne by home and business owners themselves. 

Moreover, NFIP floodplain management and hazard identification activities have significantly 

reduced the frequency and severity of flood damages to buildings built in compliance with NFIP 

standards. Structures built to NFIP criteria experience 80% less damage through reduced 

frequency and severity of losses. The NFIP floodplain management requirements are estimated 

to save $1 billion per year. 

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NFIP Description August 1, 2002 

Marketing 

Today, many Americans are either unaware that flood damage is not covered by their 

homeowner’s insurance policy or they are in denial about the serious flood risks to which they 

are exposed. Definitive figures on the potential market for flood insurance are difficult to obtain. 

A conservative estimate is that only one-third to one-half of those in SFHAs have coverage. For 

a number of flood disasters in the past few years, only 10-20% of the victims in SFHAs had 

flood insurance coverage. The remaining 80-90% must rely on taxpayer-funded Federal disaster 

assistance, which is very limited, loans which must be paid back, tax write-offs, or savings to 

help them recover. 

The insurance industry, which has been the major mechanism for the sale of flood insurance 

since the Program’s inception, has repeatedly stated that the key to selling flood insurance is 

public awareness on a national scale. Working with them, FEMA has designed and continues to 

refine flood insurance advertising and promotional activities to educate consumers, heighten 

awareness, and make the insurance agent’s job easier. 

FEMA’s strategy for increasing the number of Americans insured against flood damage includes: 

• Financial incentives for WYO insurance companies to increase and retain policyholders. 

• Cover America II—a public awareness and education campaign primarily targeting 

consumers to stimulate interest in buying flood insurance. (The campaign also reaches 

insurance agents and lenders, encouraging their active involvement in flood insurance.) 

• Facilitating lender compliance with statutory flood insurance requirements through training, 

guidance materials, and regular communication with lending regulators, government 

sponsored enterprises, and lender trade associations. 

• NFIP training for insurance agents via live seminars and on-line training modules. 

• Simplifying NFIP processes to make it easier for agents to sell and consumers to buy. 

• Improving retention of policies. 

Mandatory Flood Insurance Purchase Requirement 

From 1968 until the adoption of the Flood Disaster Protection Act of 1973, the purchase of flood 

insurance was voluntary. Property owners could make their own decision whether to purchase 

flood insurance. Unfortunately, the response nationwide to purchasing flood insurance 

voluntarily was less then enthusiastic. Just over 95,000 policies were in force in 1972, and very 

few victims from Tropical Storm Agnes that hit that same year had flood insurance. 

The 1973 Act mandated flood insurance coverage for many properties. For the first time, 

regulated lending institutions could not make, increase, extend, or renew any loan secured by 

improved real estate located in a SFHA in a participating NFIP community unless the secured 

building and any personal property securing the loan were covered for the life of the loan by 

flood insurance. Congress established this requirement because, after major flood disasters, it 

became evident that relatively few individuals in eligible communities who sustained flood 

damage had purchased flood insurance. 

29
NFIP Description August 1, 2002 

Also, Federal officers or agencies could not approve any form of loan, grant, guaranty, 

insurance, payment, rebate, subsidy, disaster assistance loan or grant, for acquisition or 

construction purposes within a SFHA in a participating community unless the building and any 

personal property to which such financial assistance relates were covered during the life of the 

property. 

The Housing and Community Development Act of 1977, which amended section 202(b) of the 

1973 Act, permitted regulated lending institutions to make conventional loans in a SFHA of a 

non-participating community. It required them to notify the purchaser or lessee of improved 

property situated in a SFHA of a non-participating community and used to secure a loan being 

made, increased, extended, or renewed, whether Federal disaster assistance for flood damage will 

be available. 

Furthermore, Section 202(a) of the 1973 Act prohibits Federal officers or agencies from 

approving any form of loan, grant, guaranty, insurance, payment, rebate, subsidy, disaster 

assistance loan or grant, for acquisition or construction purposes within SFHAs of nonparticipating communities. For example, this would prohibit mortgage loans guaranteed by the 

Department of Veterans Affairs, insured by the Federal Housing Administration, or secured by 

the Rural Economic and Community Development Services. In the case of disaster assistance 

under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, as 

amended, this prohibition only applies to assistance in connection with a flood. 

Following the multi-billion dollar flood disaster in the Midwest in 1993, Congress enacted the 

National Flood Insurance Reform Act of 1994. One of the purposes of the 1994 Act is to 

improve compliance with the mandatory purchase requirements of the NFIP by lenders, 

servicers, and secondary-market purchasers. Congress was concerned over the low level of 

insurance participation among eligible property owners and resulting increases in Federal 

disaster relief payments. While FEMA administers the NFIP, it has no responsibility or authority 

under either the 1973 Act or 1994 Act with respect to lender compliance with the Mandatory 

Flood Insurance Purchase Requirement – this responsibility falls on the Federal agency lender 

regulators and secondary-market purchasers though FEMA prepares guidance materials with 

respect to the NFIP and the Mandatory Flood Insurance Purchase Requirement. 

The law requires Federal agency lender regulators to develop regulations to direct their federally 

regulated lenders not to make, increase, extend, or renew any loan on applicable property unless 

flood insurance is purchased and maintained. The law also addresses the responsibility of 

regulated lending institutions and Government-Sponsored Enterprises (GSEs) (i.e., Fannie Mae 

and Freddie Mac) in providing a notice of and requiring flood insurance coverage for the term of 

the loan on buildings located in any SFHA in participating NFIP communities. 

The 1994 Act significantly tightens the 1973 Act by imposing important new obligations on both 

mortgage originators and servicers, including mandatory escrow requirements for flood 

insurance and mandatory provisions for “forced placement” of insurance. Specifically, the 1994 

Act requires the force placement of flood insurance if a lender or servicer determines that the 

building securing the loan is not adequately insured. Also, the 1994 Act grants statutory 

authority to a lender or servicer to purchase flood insurance for the building and charge a 

30
NFIP Description August 1, 2002 

premium to the borrower if the building is in an SFHA. In addition, Congress designated for the 

first time in the 1994 Act a specific range of regulatory civil monetary penalties that may be 

imposed administratively when it is found that a “pattern or practice of committing violations” 

has occurred by regulated lenders. 

It is the responsibility of the lender to: 

• Determine whether the building offered as security for a loan is, or will be located in an 

SFHA; 

• Document the determination using the Standard Flood Hazard Determination Form; 

• Require flood insurance to the appropriate amount when necessary; 

• Ensure that flood insurance is maintained during the life of the loan; and 

• Ensure that flood insurance is purchased and maintained if the lender becomes aware 

that the building involved subsequently is located in an area that has been remapped as a 

SFHA. 

Although the intent of the 1994 Act is to require borrowers to purchase flood insurance, the 

Act’s directives and prohibitions are directed to federally-regulated primary lenders and to 

secondary market entities involved in mortgage loan transactions. The flood insurance 

requirement does not apply to lenders or servicers that are not federally regulated or do not sell 

loans to GSEs such as Fannie Mae and Freddie Mac or other GSEs. 

It is a prerequisite that a designated loan have flood insurance as a condition of closing. If a 

borrower will not voluntarily obtain coverage and a lender is unable to force place coverage, the 

lender must deny the loan or exercise the sanction provisions of the loan document if the loan 

already has been made. A lender cannot accept a borrower’s assurance that he or she will obtain 

insurance coverage in the future or grant the lender indemnity while seeking coverage. Closing a 

designated loan without flood insurance coverage in place constitutes a violation of the 

regulation implementing the Mandatory Purchase Requirement. 

Lenders on their own initiative may require the purchase of flood insurance even if a structure is 

located outside the SFHA. A decision to require coverage under such circumstance is not 

compelled by statute. Lenders have this prerogative to require flood insurance to protect their 

investments. 

Other NFIP Activities 

Community Rating System 

The NFIP’s Community Rating System (CRS) provides discounts on flood insurance premiums 

in those communities that establish floodplain management programs that go beyond NFIP 

minimum requirements. Under the CRS, communities receive credit for more restrictive 

regulations, acquisition, relocation, or floodproofing of flood-prone buildings, preservation of 

open space, and other measures that reduce flood damages or protect the natural resources and 

functions of floodplains. 

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NFIP Description August 1, 2002 

The CRS was implemented in 1990 to recognize and encourage community floodplain 

management activities that exceed the minimum NFIP standards. Section 541 of the 1994 Act 

amends Section 1315 of the 1968 Act to codify the Community Rating System in the NFIP, and 

to expand the CRS goals to specifically include incentives for reducing the risk of flood-related 

erosion and for encouraging measures that protect natural and beneficial floodplain functions. 

These goals have been incorporated into the CRS and communities now receive credit towards 

premium reductions for activities that contribute to them. 

Under the CRS, flood insurance premium rates are adjusted to reflect the reduced flood risk 

resulting from community activities that meet the three goals of the CRS: 

(1) Reduce flood losses, i.e., 

• Protect public health and safety, 

• Reduce damage to property, 

• Prevent increases in flood damage from new construction, 

• Reduce the risk of erosion damage, and 

• Protect natural and beneficial floodplain functions; 

(2) Facilitate accurate insurance rating; and 

(3) Promote the awareness of flood insurance. 

There are 10 CRS classes: Class 1 requires the most credit points and gives the largest premium 

reduction; Class 10 receives no premium reduction. CRS premium discounts on flood insurance 

range from 5 percent for Class 9 communities up to 45 percent for Class 1 communities. The 

CRS recognizes 18 creditable activities, organized under four categories: Public Information, 

Mapping and Regulations, Flood Damage Reduction, and Flood Preparedness. 

For example, credits are provided for use of future conditions hydrology and more restrictive 

floodway standards, prohibiting fill in the floodway, and adopting compensatory storage 

regulations, innovative land development criteria, stormwater management regulations, other 

higher regulatory standards, and local floodplain management plans. Credits are also provided in 

the CRS for preserving open space in their natural state and for low-density zoning and for 

acquiring and clearing buildings from the floodplain and returning the area to open space. The 

2002 CRS Coordinator’s Manual includes a new section, “Land Development Criteria,” which 

specifically credits community land development regulations that limit development in the 

floodplain or provide incentives to limit floodplain development. Communities receive credits 

for adopting smart growth land development criteria and for creating open space through their 

land development process. 

There are now over 900 communities receiving flood insurance premium discounts based on 

their implementation of local mitigation, outreach, and educational activities that go well beyond 

minimum NFIP requirements. Although premium discounts are one of the benefits of 

participation in the CRS, these communities are carrying out important activities that save lives, 

reduce property damage, and protect the natural and beneficial functions of floodplains. These 

900-plus communities represent a significant portion of the nation’s flood risk as evidenced by 

32
NFIP Description August 1, 2002 

the fact that they account for over 66% of the NFIP’s policy base. Communities receiving 

premium discounts through the CRS cover a full range of sizes from small to large, and a broad 

mixture of flood risks, including coastal and riverine. 

The CRS – its development and implementation – has benefited from the advice and effort of 

Federal, State, and local officials, professionals with expertise in floodplain management and 

insurance, and academics. A multidisciplinary approach led to successful implementation of the 

program and this same approach has been employed in reviewing and refining the CRS over the 

last 10 years. 

Flood Mitigation Assistance Program 

The Flood Mitigation Assistance (FMA) program provides funding to assist States and 

communities to accomplish flood mitigation planning and implement measures to reduce future 

flood damages to structures. This program is authorized under the 1994 Act. These funds can be 

used before disaster strikes. 

The FMA program provides funding up to $20 million a year with a 75/25 cost share. Examples of 

eligible activities for planning grants include conducting local planning meetings to obtain citizen 

input; contracting for engineering or planning technical assistance; surveying structures at risk of 

flooding; and assessing repetitive losses. Only projects for mitigation activities specified in an 

approved Flood Mitigation Plan are eligible for project grants. For example, a community may 

determine in its plan that acquisition of structures would be the preferred alternative for floodway 

areas, while elevation may be more appropriate solution in other areas of the floodplain. 

The purpose of FMA project grants is to assist States and communities in implementing flood 

mitigation projects to reduce the risk of flood damage to NFIP-insurable structures. Examples of 

eligible types of projects include: 

• Elevation of NFIP-insured residential structures and elevation or dry-floodproofing of nonresidential structures in accordance with 44 CFR §60.3. 

• Acquisition of NFIP-insured structures and underlying real property. 

• Relocation of NFIP-insured structures from acquired or restricted real property to sites not prone 

to flood hazards. 

• Demolition of NFIP-insured structures on acquired or restricted real property. 

• Beach nourishment activities that focus on facilitating natural dune replenishment through the 

planting of native dune vegetation and/or the installation of sand fencing. Placement of sand on 

beach is not eligible. 

• Minor physical flood control projects that do not duplicate the flood-prevention activities of 

other Federal agencies that address localized flood problem areas such as stabilization of stream 

banks, modification of existing culverts, creation of small stormwater retention basins. Major 

structural flood control structures, such as levees, dams, and seawalls are not eligible. 

To be eligible for funding, a project must be: 

• Cost-effective; 

33
NFIP Description August 1, 2002 

• Conform with applicable Federal and State regulations and executive orders; 

• Be technically feasible; 

• Conform with the Flood Mitigation Plan; and 

• Be located physically in a participating NFIP community that is not on probation. 

The 1994 Act directs FEMA to “make every effort to provide mitigation assistance for mitigation 

plans proposing activities for repetitive loss structures and structures that have incurred 

substantial damage.” FEMA is focusing the FMA program on repetitive loss properties. The 

NFIP’s Repetitive Loss Strategy is to identify properties throughout the country that are most at 

risk for repeat flooding, and to reduce their exposure through targeted buyouts, relocation, and 

elevation. Approximately 45,638 repetitive loss properties are currently insured. These buildings 

are projected to cost the program $200 million per year in claims. New repetitive loss properties 

continue to emerge each year. FEMA has identified target buildings that are currently insured 

and have the greatest risk. There are 8,753 buildings with four or more losses, and l,160 

buildings with two or three loses that exceed building value. Most of these target buildings are 

single-family residences. The limited FMA program funds ($20 million) are a key resource 

toward achieving this goal. 

For projects that directly affect individual structures, such as elevation, acquisition, or relocation, 

each structure must have a flood insurance policy in force. FMA will be available to States and 

communities for mitigation activities that may benefit insurable properties not insured under the 

NFIP. For minor structural flood control projects, the effectiveness of the project can be based on 

benefits provided to insurable structures not insured under the NFIP. 

 

Since 1996, FMA program funds have been used to acquire 484 flood-prone structures, relocate 

16 flood-prone structures, elevate 491 flood-prone structures, and dry-floodproofed 8 floodprone non-residential structures. To date, FEMA has allocated through FMA $97.6 million for 

projects; $9 million for plans; and $10.8 million for technical assistance. 

The predecessor to the FMA program was Section 1362 of the 1968 Act, which was also 

intended to address existing flood-prone structures. This provision authorized the NFIP to 

purchase certain insured properties that had been either substantially or repetitively damaged and 

transfer the land to a public agency for open space. Funds were appropriated for Section 1362 

annually from 1980 until 1994, when the FMA program replaced the Section 1362 program. 

Over the period during which funds were available, approximately 1,400 properties were 

purchased at a total cost of about $51.9 million. 

Other FEMA Programs 

The following are other FEMA programs and activities that provide mitigation assistance and 

planning assistance in reducing the Nation’s flood losses. 

Hazard Mitigation Grant Program 

The Hazard Mitigation Grant Program (HMGP) was created in 1988 by Section 404 of the 

Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (amendments 

34
NFIP Description August 1, 2002 

include the Hazard Mitigation and Relocation Assistance Act of 1993 and the Disaster 

Mitigation Act of 2000). The HMGP assists States and communities in implementing long-term 

hazard mitigation measures for all hazard types following a major disaster declaration. A key 

purpose of the HMGP is to ensure that the opportunity to take critical mitigation measures to 

protect life and property from future disasters is not lost during recovery and reconstruction 

process following a disaster. 

 

HMGP funds are made available based on 15% of the estimated Federal funds to be spent on the 

Public and Individual Assistance programs (minus administrative expenses) for each disaster. 

States whose mitigation planning process meets enhanced criteria will be able to receive 20% 

funding under the regulations implementing the Disaster Mitigation Act of 2000. As of 

September 2001, 5,560 projects have been approved at a total Federal expenditure of 

approximately $2.6 billion. 

Eligible mitigation measures under the HMGP include acquisition or relocation of flood-prone 

structures, elevation of flood-prone structures, seismic rehabilitation of existing structures, and 

strengthening of existing structures against wildfire. Additionally, up to seven percent of the 

HMGP funds may be used to develop State and/or local mitigation plans. 

The State, as grantee, is responsible for administering the HMGP. Communities develop HMGP 

project applications and apply for funds through the State. The State notifies potential applicants 

of the availability of funding, defines a project selection process, ranks and prioritizes projects 

for funding, and forwards projects to FEMA for approval. The applicant, or subgrantee, carries 

out approved projects. The State or local government must provide a 25 percent match, which 

can be from a combination of cash and in-kind sources. 

In response to flood hazards, FEMA’s primary emphasis is on nonstructural hazard mitigation 

measures. Nonstructural measures include the acquisition and demolition, relocation, elevation, 

or floodproofing of flood-damaged or flood-prone properties. 

 

Since the program’s inception to September 2001, FEMA has permanently eliminated or 

significantly reduced future flood damages for over 25,801 at-risk structures through 

nonstructural measures as follows: acquisition of 22,564 properties; relocation of 733 properties; 

and elevation of 2,504 properties. The total Federal expenditure for these measures was 

$826,943,785. 

Disaster Mitigation Act of 2000 

The Disaster Mitigation Act (DMA) of 2000 amended the Robert T. Stafford Disaster Relief and 

Emergency Assistance Act of 1988. The DMA authorizes the creation of a pre-disaster 

mitigation program to make grants to State, local and tribal governments. It also includes a 

provision that defines mitigation planning requirements for State, local and tribal governments. 

This new section (Section 322) establishes a new requirement for local and tribal mitigation 

plans; authorizes up to 7 percent of the HMGP funds available to a State to be used for 

development of State, local and tribal mitigation plans; and provides for States to receive an 

increased percentage of HMGP funds from 15 percent to 20 percent if, at the time of the disaster 

35
NFIP Description August 1, 2002 

declaration, the State has in effect a FEMA approved State Mitigation Plan that meets the criteria 

established in regulations. 

Planning Initiatives 

In addition to providing pre-and post-disaster planning assistance to States and communities, 

FEMA has undertaken a number of other initiatives to encourage communities to undertake 

mitigation planning and to incorporate natural hazards into their comprehensive land use 

planning. FEMA and the American Planning Association (APA) jointly developed a publication 

entitled Planning for Post-Disaster Recovery and Reconstruction that encourages use of 

planning tools to guide the rebuilding process for a safer and more sustainable community. This 

document was published in 1998 as part of their Planning Advisory Service series in an effort to 

use APA’s distribution system to reach out to the planning community. 

FEMA also participated in and provided financial support to HUD’s Growing Smart initiative 

working with APA to develop a natural hazards element for a local comprehensive or general 

plan. FEMA has prepared a publication on “sustainability,” Planning for a Sustainable Future, 

The Link Between Hazard Mitigation and Livability. A series of “how-to” manuals on natural 

hazards planning is being developed for publication in Fall 2002. One of the “how-to” manuals, 

Understanding Your Risks: Identifying Hazards and Estimating Losses, was published in August 

2001. FEMA expects to encourage State and community planning through the new pre-disaster 

mitigation provisions of Disaster Mitigation Act of 2000. Information on mitigation planning 

programs and guidance can be found at www.fema.gov/fima/planning.shtm. 

36
NFIP Description August 1, 2002 

A Key To The Acronyms Used In This Document 

APA - American Planning Association 

BFE - Base Flood Elevation 

BPAT - Building Performance Assessment Team 

CAC - Community Assistance Contact 

CAP - Community Assistance Program 

CAV - Community Assistance Visit 

CBRS - Coastal Barrier Resources System 

CFR - Code of Federal Regulations 

CRS - Community Rating System 

CTP - Cooperative Technical Partners 

DFIRM - Digital Flood Insurance Rate Map 

DMA - Disaster Mitigation Act of 2000 

EMI - Emergency Management Institute 

E.O. - Executive Order 

FEMA - Federal Emergency Management Agency 

FIA - Federal Insurance Administration 

FIMA - Federal Insurance and Mitigation Administration 

FIRM - Flood Insurance Rate Map 

FIS - Flood Insurance Study 

FMA - Flood Mitigation Assistance program 

GSE - Government-Sponsored Enterprise 

HMGP - Hazard Mitigation Grant Program 

HUD - Housing and Urban Development (Department of) 

ICC - Increased Cost of Compliance 

LOMA - Letter of Map Amendment 

LOMR - Letter of Map Revision 

LOMR-F- Letter of Map Revision based on Fill 

NFIP - National Flood Insurance Fund 

NFIP - National Flood Insurance Program 

NFIRA - National Flood Insurance Reform Act 

OMB - Office of Management and Budget 

RCBAP - Residential Condominium Building Association Policy 

OPAs - Otherwise Protected Areas 

SFHA - Special Flood Hazard Area 

SFIP - Standard Flood Insurance Policy 

TB - Technical Bulletin 

WYO - Write-Your-Own 

37
Texas Nonpoint Source 

Management Program

Texas Commission on Texas State Soil and

Environmental Quality Water Conservation Board

SFR-068/04 December 2005
When your publication is complete, 

Agency Communications will put the page

containing the agency logo, other agency

information, and the ADA statement here.
Texas Nonpoint Source

Management Program

2005

 Prepared by the 

 Texas Commission on Environmental Quality

 and the

 Texas State Soil and Water Conservation Board

SFR-068/04

December 2005

TCEQ/TSSWCB joint publication SFR-68/04 iii

Contents

Chapter 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Nine Elements of Texas’ NPS Management Program . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Major Issues Facing Water Quality in Texas .................................. 6

Chapter 2 Texas' Plan for Nonpoint Source Pollution Management ........... 9

The Nonpoint Source Program ............................................ 9

State Priorities for CWA §319 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Resource Leveraging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Clean Water Act State Revolving Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Partnerships for Conducting Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Goals for NPS Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Long-Term Goal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Short-Term Goals and Milestones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Chapter 3 Texas’ Watershed Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A Watershed Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Managing Surface Water by Geographic Area . . . . . . . . . . . . . . . . . . . . . . . . . 18

The Water Quality Management Cycle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Standards and Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Assessment and Targeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Strategies for Protecting and Improving Water Quality . . . . . . . . . . . . . . . . . . 32

Implementing Plans to Restore Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . 35

A Joint Effort-Stakeholder Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Gauging Success . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Chapter 4 Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Interstate and International Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Interstate Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

International Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Environmental Protection Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

U.S. Geological Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
iv TCEQ/TSSWCB joint publication SFR-68/04

National Oceanic and Atmospheric Administration . . . . . . . . . . . . . . . . . . . . . 46

U.S. Army Corps of Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

U.S. Coast Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

U.S. Department of Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

State Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Texas State Soil and Water Conservation Board . . . . . . . . . . . . . . . . . . . . . . . . 48

Texas Commission on Environmental Quality . . . . . . . . . . . . . . . . . . . . . . . . . 48

Texas Water Development Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Texas Parks and Wildlife Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Texas Agricultural Experiment Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Texas Department of Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Texas Institute for Applied Environmental Research . . . . . . . . . . . . . . . . . . . . 50

Texas Water Resources Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Texas Forest Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Texas Cooperative Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Texas Department of Licensing and Regulation . . . . . . . . . . . . . . . . . . . . . . . . 51

Texas General Land Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Railroad Commission of Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Texas Department of Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Texas Department of State Health Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Interagency Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Stakeholder Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Coordinated Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Stakeholder Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

National Natural Resources Conservation Foundation . . . . . . . . . . . . . . . . . . . 55

Texas Forestry Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Clean Rivers Program Stakeholder Workgroup . . . . . . . . . . . . . . . . . . . . . . . . 55

Clean Rivers Program Basin Steering Committees . . . . . . . . . . . . . . . . . . . . . . 56

Local Watershed Action Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

NPS Stakeholders Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Texas Watershed Protection Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Texas Groundwater Protection Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Coastal Coordination Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Texas Alliance of Groundwater Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Soil and Water Conservation Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Importance of Local Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Chapter 5 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Surface Water Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Protecting Surface Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Assessing the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
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Total Maximum Daily Loads (TMDLs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Monitoring the Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Groundwater Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Measuring Groundwater Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Aquifer Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Assessing the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Monitoring the Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Chapter 6 Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Surface Water Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

TMDL Implementation Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Watershed Protection Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Water Quality Trading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Groundwater Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Joint Groundwater Monitoring and Contamination Report . . . . . . . . . . . . . . . 89

Groundwater Protection Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Groundwater Conservation Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Remediation of Contaminated Sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Superfund Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Brownfields Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Voluntary Cleanup Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Corrective Action Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Leaking Petroleum Storage Tank Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Emergency Response and Disaster Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Floodplain Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Emergency Response Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Coastal Oil Spill Prevention and Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Kills and Spills Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Hydromodification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Clean Water Act § 401/404 Water Quality Certification . . . . . . . . . . . . . . . . . 98

Water Rights Permit Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Marinas and Recreational Boating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

The Clean Marina Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

The Clean Texas Marinas Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Solid and Hazardous Waste Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

State Solid Waste Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

The Beneficial Use Sludge Permitting Program . . . . . . . . . . . . . . . . . . . . . . . 103

The Illegal Disposal Abatement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Texas Environmental Enforcement Task Force . . . . . . . . . . . . . . . . . . . . . . . . 104
vi TCEQ/TSSWCB joint publication SFR-68/04

Citizen Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Citizen Environmental Watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Composting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Used Oil Recycling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Oil and Gas Waste Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

The TCEQ Household Hazardous Waste Management Program . . . . . . . . . . 108

Tire Disposal Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

The City of San Antonio Waste Management Programs . . . . . . . . . . . . . . . . . 109

City of Austin Biosolids Composting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Wastewater Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

The On-Site Sewage Facility Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

The Texas On-Site Wastewater Treatment Research Council . . . . . . . . . . . . 111

The City of El Paso Reclaimed Water System . . . . . . . . . . . . . . . . . . . . . . . . 111

The Brazos River Authority Technical Assistance Program . . . . . . . . . . . . . . 112

Storm Water Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

State Storm Water Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Texas Department of Transportation Storm Water Management Guidelines . 114

The City of Dallas Trinity River Corridor Project . . . . . . . . . . . . . . . . . . . . . . 115

The San Antonio River Tunnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Integrated Storm Water Management Project . . . . . . . . . . . . . . . . . . . . . . . . 116

The San Angelo Urban Nonpoint Source Abatement Program . . . . . . . . . . . . 116

Pesticide Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Groundwater Pesticide Management Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Surface Water Pesticide Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Pesticide Review Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Agricultural Pesticide Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

The Structural Pest Control Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Agriculture Resource Protection Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

The Agricultural Waste Pesticide Collection Program . . . . . . . . . . . . . . . . . . 122

Agricultural Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Agricultural Waste Permitting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

TSSWCB Water Quality Management Plan Program . . . . . . . . . . . . . . . . . . . 124

The Dairy Outreach Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

The Texas Brush Control Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

The Agricultural Loan Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

The Private Lands Enhancement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

The Environmental Quality Incentives Program . . . . . . . . . . . . . . . . . . . . . . . 126

The Watershed Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Conservation Technical Assistance Program . . . . . . . . . . . . . . . . . . . . . . . . 127

Conservation Reserve Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

USDA-Agricultural Research Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

The Texas Institute for Applied Environmental Research . . . . . . . . . . . . . . . . 128

The Texas Water Resources Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

The Lower Colorado River Authority - Creekside Conservation Program . . . 129
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Silvicultural Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

The Texas Forest Service Resource Development Program . . . . . . . . . . . . . . 130

The Forest Stewardship Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

The Forest Land Enhancement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Pollution Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

The Site Visit Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

The Small Towns Environment Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

The Texas Country Cleanup Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Supplemental Environmental Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

The Clean Texas Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Oil and Gas Waste Minimization Program . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Texas Chemical Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Protection for Drinking Water Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Underground Injection Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

The Source Water Assessment and Protection Program . . . . . . . . . . . . . . . . . 134

Aquifer Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

The Texas Groundwater Protection Committee . . . . . . . . . . . . . . . . . . . . . . . 136

Underground Storage Tank Installer Licensing Program . . . . . . . . . . . . . . . . 137

Texas Department of Licensing and Regulation . . . . . . . . . . . . . . . . . . . . . . . 137

Edwards Aquifer Protection Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Environmental Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

The Railroad Commission of Texas - Oil and Gas Well Plugging Program . . 141

Wetlands Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

The Wetlands Reserve Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

The Texas Wetlands Conservation Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Wetlands Planning Efforts in Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Wetlands Assistance for Landowners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Coastal Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

The Texas Coastal Management Program/Coastal Coordination Council . . . 145

The National Estuary Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Coastal Habitat Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

The BEACH Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

The Gulf of Mexico Community-Based Restoration Program . . . . . . . . . . . . 149

The Bilge Water Reclamation Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Coastal Texas 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

The Adopt-A-Beach Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Border Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

The TCEQ Border Pollution Prevention Initiative . . . . . . . . . . . . . . . . . . . . . 151

The Border Environment Infrastructure Fund . . . . . . . . . . . . . . . . . . . . . . . . 152

The International Boundary and Water Commission . . . . . . . . . . . . . . . . . . . 152

The Economically Distressed Areas Program . . . . . . . . . . . . . . . . . . . . . . . . . 153
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The Colonias Initiatives Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

Border Recycles Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

Friends of the Rio Grande . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

Chapter 7 Educational Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Education Through Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Texas Watch Volunteer Environmental Monitoring & Education Program . . 155

The Lower Colorado River Authority - Colorado River Watch Program . . . . 156

The Aquatic Experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

The City of Denton Watershed Protection Program . . . . . . . . . . . . . . . . . . . . 157

Education Through Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Nonpoint Source Consumer Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Storm Drain Marking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Back Yard Composting and Xeriscaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Teaching Environmental Sciences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Environmental News You Can Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Publications and Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Environmental Information Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Small Spill Prevention Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

The Texas Cooperative Extension Agricultural Outreach Program . . . . . . . . 160

The Texas A & M University On-Site Wastewater Treatment Training Center161

Don't Mess With Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Keep Texas Beautiful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

The Texas Wildscapes Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

The Edwards Aquifer Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

The Barton Springs/Edwards Aquifer Conservation District . . . . . . . . . . . . . 164

The City of Austin's "Grow Green" and "Earth Camp" . . . . . . . . . . . . . . . . . . 164

The City of Houston's WET in the City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

The City of Fort Worth Environmental Education Programs . . . . . . . . . . . . . 166

The City of San Antonio's Curbside Recycling Program . . . . . . . . . . . . . . . . 167

Chapter 8 Best Management Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Definition of Best Management Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Categories of Nonpoint Source Pollution Management . . . . . . . . . . . . . . . . . . . . . . . 168

Categories of Nonpoint Sources and Associated Pollutants . . . . . . . . . . . . . . . . . . . . 171

Major Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Special Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Appendix A Certification of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

TCEQ-General Counsel’s Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

TSSWCB-Attorney General’s Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
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Appendix B Priority Water Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Surface Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

Appendix C Overview of Current Priority Watersheds, Impairments, Milestones, 

 and Estimated Timelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

Appendix D Aquifer Vulnerability Ranking System . . . . . . . . . . . . . . . . . . . . . . . 253

Appendix E The History of Nonpoint Source Management . . . . . . . . . . . . . . . . . 256

Clean Water Act of 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

National Urban Runoff Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

National Pollutant Discharge Elimination System . . . . . . . . . . . . . . . . . . . . . 257

Rural Clean Water Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

Clean Water Action Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

Total Maximum Daily Load Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

National Estuary Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

Other Federal Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

Coastal Zone Nonpoint Source Management . . . . . . . . . . . . . . . . . . . . . . . . . 261

Safe Drinking Water Act: Source Water Protection . . . . . . . . . . . . . . . . . . . . 263

Intermodal Surface Transportation Efficiency Act . . . . . . . . . . . . . . . . . . . . . 263

The Food Security Act of 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

Federal Agriculture Improvement and Reform Act of 1996 . . . . . . . . . . . . . . 264

Farm Security and Rural Investment Act of 2002 . . . . . . . . . . . . . . . . . . . . . . 264

State of Texas Nonpoint Source Control Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

General Discharge Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

Texas Local Government Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

Municipal Pollution Abatement Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

Livestock and Poultry Production Operations . . . . . . . . . . . . . . . . . . . . . . . . . 265

Edwards Aquifer Protection Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

On-Site Sewage Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

Soil Conservation Laws and Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

Water Quality Management Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

Appendix F Clean Water Act, § 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

Appendix G Federal Consistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279

TCEQ Review of Federal Assistance Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279

Department of Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279

Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

Department of Housing and Urban Development . . . . . . . . . . . . . . . . . . . . . . 280
x TCEQ/TSSWCB joint publication SFR-68/04

Department of the Interior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

Department of Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

General Services Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282

Small Business Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282

Environmental Protection Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282

Department of Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

TCEQ Review of Federal Development Projects . . . . . . . . . . . . . . . . . . . . . . 283

USDA, Forest Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

USDA, Natural Resources Conservation Service/Farm Service Agency . . . . 284

Department of the Interior, Bureau of Land Management . . . . . . . . . . . . . . . 284

Department of the Interior, Bureau of Reclamation . . . . . . . . . . . . . . . . . . . . 285

Department of the Interior, Fish and Wildlife Service . . . . . . . . . . . . . . . . . . 285

Department of the Interior, Surface Mining . . . . . . . . . . . . . . . . . . . . . . . . . . 285

Department of Defense, Defense Installations . . . . . . . . . . . . . . . . . . . . . . . . 285

Department of Defense, Corps of Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . 285

Department of Transportation, Federal Aviation Administration . . . . . . . . . . 286

Department of Transportation, U.S. Coast Guard . . . . . . . . . . . . . . . . . . . . . . 286

General Services Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

Appendix H Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Specific Funding for TCEQ Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Funding Sources for Agricultural & Silvicultural Nonpoint Source Pollution Abatement

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

Appendix I Summary of Public Responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

Appendix J Acronyms and Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293

Appendix K Web Sites of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Bay and Estuary Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Council of Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

Groundwater Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

Industrial Councils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298

Interstate and International Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
TCEQ/TSSWCB joint publication SFR-68/04 xi

River Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298

State Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

TABLES AND FIGURES

Figure 3.1 Major River Basins and Planning Areas in Texas . . . . . . . . . . . . . . . . . . . . 20

Figure 3.2 The Water Quality Management Cycle of the Watershed Approach . . . . . 21

Figure 3.3 Stakeholder Forums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Table 1.1 Nonpoint Source Pollution: Sources and Activities ................... 7

Table 2.1 The Nonpoint Source Program .................................... 9

Table 3.1 Categories of Use Attainment in the Water Quality Inventory . . . . . . . . . . 29

Table 3.2 Criteria for Prioritizing TMDLs (Category 5A waters) for Development . 31

Table 4.1 Federal, State, and Local Agreements to Facilitate Cooperation on NPS Issues

 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Table 4.2 Federal, State, and Local Programs and Activities for Assessment, 

 Implementation, and Education within the Texas Nonpoint Source Pollution 

 Management Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Table 5.1 Categories of the Texas Water Quality Inventory and 303(d) List . . . . . . . . 74

Table 5.2 TGPC Groundwater Classification System . . . . . . . . . . . . . . . . . . . . . . . . . 81

Table 6.1 Texas Coastal NPS Management Program. Remaining Conditions and 

 Anticipated Year of Condition Resolution . . . . . . . . . . . . . . . . . . . . . . . . 146

Table 8.1 Best Management Practices by Category . . . . . . . . . . . . . . . . . . . . . . . . . . 170

Table 8.2 Best Management Practices by Source . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

Table B.1 Priority Water Bodies - Surface Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Table B.2 Priority Water Bodies - Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

Table C.1 Milestone Summary Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

Table C.2 Individual Priority Waterbody Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

Table D.1 Aquifer Vulnerability Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

TCEQ/TSSWCB joint publication SFR-68/04 1

NPS pollution is caused by rainfall or

snowmelt moving over and through the

ground. As the water moves over, or

through, the ground, it picks up and carries

away natural and human-made pollutants,

eventually depositing them into lakes, rivers,

wetlands, coastal waters, and groundwater.

These pollutants include:

• excess fertilizers, herbicides, and

insecticides from agricultural lands and

residential areas;

• oil, grease, and toxic chemicals from

urban runoff and energy production;

• sediment from improperly managed

construction sites, crop and forest lands,

and eroding streambanks;

• salt from irrigation practices, petroleum

production, acid drainage from

abandoned mines, and natural salt

deposits;

• bacteria and nutrients from livestock,

pet wastes, faulty septic systems, and

wildlife;

• atmospheric deposition and

hydromodification.

CHAPTER 1 INTRODUCTION

Water quality is degraded when

storm water runoff carries

pollutants such as motor oil

from automobiles, fertilizers

from landscapes or farms, and

sediments from construction

sites into downstream creeks,

rivers, lakes, aquifers, and

estuaries. This is nonpoint

source (NPS) water pollution.

Decisions made today about

how to manage nonpoint

sources of pollution determine

the quantity and quality of

water resources for future

generations. A dynamic and

effective nonpoint source

program, implemented now,

that focuses on planning, good

science, and fiscal

responsibility will save future

generations the expense of

cleaning up what we leave

behind and provide goodquality water for the use and enjoyment of all Texans. 

This report outlines Texas' comprehensive management strategy to protect

and restore water impacted by nonpoint sources of pollution and is jointly

developed by the Texas Commission on Environmental Quality (TCEQ)

and the Texas State Soil and Water Conservation Board (TSSWCB). NPS

management is a collaborative effort and the responsibility of all programs

described in this document. This document represents a toolbox for the

state to manage NPS pollution by listing the programs and processes

throughout the state that address NPS pollution. This plan provides for the

coordination of NPS related activities, establishment of statewide goals,

prioritization of assessment and implementation activities, and elimination

of duplication of effort among participating stakeholders. 

Nine Elements of Texas’ NPS Management Program

As prescribed by current Nonpoint Source EPA guidelines, Texas’

program incorporates EPA’s nine key elements of an effective program,

which allow for maximum flexibility in managing NPS pollution. These

elements are listed below, with a summary of how the state has addressed

them in its program. Many specific examples of the state’s application of

the nine key elements may be found throughout this document in the
2 TCEQ/TSSWCB joint publication SFR-68/04

descriptions of various state programs and their management strategies for

NPS pollution.

Element 1

Explicit short- and long-term goals, objectives and strategies that protect

surface and groundwater.

The section “Goals for NPS Management”, as described in Chapter 2,

details TSSWCB and TCEQ long and short term goals of the Nonpoint

Source Program. Many individual programs have also established long

and short term goals that are compatible with these goals.

Element 2

Working partnerships and linkages to appropriate state, interstate, tribal,

regional, and local entities, private sector groups, and Federal agencies.

Surface water and aquifers are not limited by political boundaries and, as a

result, environmental solutions often cross federal, state, and local levels

of responsibility. With the extent and variety of water quality issues across

Texas, the need for cooperation at all levels is essential. 

The state coordinates, develops, and implements the NPS program by

using the existing infrastructure of the Clean Rivers Program (CRP), Soil

and Water Conservation Districts (SWCDs), Texas Groundwater

Protection Committee (TGPC), and the University System in order to

leverage the efforts of state, federal, regional, and local entities. Through

this infrastructure, the state establishes working partnerships for obtaining

consensus and input on NPS issues. TCEQ and TSSWCB programs use

the statewide Watershed Approach, as described in Chapter 3, to organize

the participation of all stakeholders to:

! identify priority watersheds with NPS water quality

problems;

! formulate the steps necessary to alleviate any known

water quality problems within those watersheds; and

! secure and target resources in order to develop and

implement NPS strategies that restore water quality.

A description of various agencies and stakeholder programs, along with

coordination of roles and table of MOAs / MOUs between the partners,

can be found in Chapter 4.

Element 3

Balanced approach that emphasizes both state-wide nonpoint source

programs and on-the-ground management of individual watersheds.

Activities in Texas that address NPS pollution involve both statewide

strategies and local initiatives. NPS activities are managed with a
TCEQ/TSSWCB joint publication SFR-68/04 3

geographical focus where work is directed at the level in which it can be

most effective. For example, one of the Texas’ primary statewide efforts is

public outreach and education, which is accomplished through activities of

the TCEQ and TSSWCB Nonpoint Source Programs. The TSSWCB

educates producers throughout the state on how their activities may

contribute to NPS pollution, measures they can take to minimize their

impacts, and money that is available to help them implement these

measures. This is accomplished through state-wide conferences, news

articles, and educational brochures. The TCEQ has numerous programs

throughout the agency that play significant roles in the area of statewide

public education. In addition to statewide public outreach and education

efforts, the Texas Clean Rivers Program and local Soil and Water

Conservation Districts provide the framework for public outreach on a

local watershed level. Other nonpoint source state, regional, and local

management efforts are described in detail throughout this Management

Program document. 

Element 4

Abatement of water quality impairments from nonpoint source pollution

and prevention of significant threats to water quality from present and

future nonpoint source activities.

The TCEQ and TSSWCB Nonpoint Source Programs use a Watershed

Approach to focus on the most significant NPS water quality problems.

The Texas Water Quality Inventory and 303(d) list and category structure

provide a basis for prioritizing assessment, implementation, and education

projects to address water quality impairments from existing sources. In

selecting projects for funding, the TCEQ and the TSSWCB give the

highest consideration to projects which address the most significant

threats to water quality and have the best potential to prevent or reduce

nonpoint sources of pollution and improve water quality.

Many TSSWCB and TCEQ programs are preventive in nature or

incorporate pollution prevention activities. Texas also uses regulatory

approaches to prevent pollution. The TCEQ, TSSWCB, and other state

programs that carry out nonpoint source management activities are

described in Chapter 6.

 Element 5

The state program identifies waters and their watersheds impaired by

nonpoint source pollution and identifies important unimpaired waters that

are threatened or otherwise at risk. Further, the state establishes a

process to progressively address these identified waters by conducting

more detailed watershed assessments and developing watershed

implementation plans, and then by implementing the plans.

Texas routinely assesses and monitors water quality under programs

administered by the TCEQ. These data are collected by federal, state,

regional, and local agencies and are compiled into the Clean Water Act
4 TCEQ/TSSWCB joint publication SFR-68/04

§305(b) Report and §303(d) List (otherwise known as the Texas Water

Quality Inventory and 303(d) list). The Texas Water Quality Inventory

categorizes water bodies impaired by nonpoint source pollution, according

to their status, and sets forth the method by which the state will approach

identified nonpoint source problems. CWA§303(d)-listed water bodies are

further categorized to determine the priorities for doing further water

quality assessments or implementing restoration activities. This strategy is

described in Chapter 3 under TCEQ’s Watershed Approach.

The management strategies detailed in the Watershed Approach lay out 

the processes that the TCEQ will use to progressively address impaired or

threatened water bodies. The TSSWCB works closely with the TCEQ in

each water body impaired by agricultural or silvicultural activities to

perform additional targeted water quality assessments. The TSSWCB

leads the development of TMDLs, implementation plans, and watershed

protection plans for water bodies primarily impacted by agricultural or

silvicultural sources, and will implement practices in those watersheds to

mitigate the water quality problems. The TCEQ leads the development of

TMDLs, implementations plans and watershed protection plans in areas

affected by all other nonpoint sources.

Element 6

The state reviews, upgrades, and implements all program components

required by §319(b) of the Clean Water Act, and establishes flexible,

targeted, and iterative approaches to achieve and maintain beneficial uses

of water as expeditiously as practicable. The state programs include:

! A mix of water quality-based and/or technology-based

programs designed to achieve and maintain beneficial

uses of water; and 

! A mix of regulatory, non-regulatory, financial, and

technical assistance as needed to achieve and maintain

beneficial uses of water as expeditiously as practicable.

The state’s Watershed Approach is based on a water quality management

cycle which has five phases that are iterative in nature as described in

Chapter 3. If water bodies are identified during the Assessment and

Targeting phase as being impaired, the state considers a variety of

approaches to implement solutions. 

Since the state does not have statutory authority to enact certain types of

NPS regulatory measures, it must work cooperatively with local

authorities to implement solutions. As noted in Key Element 2, annual

meetings with the CRP partners and stakeholders are used to coordinate

data collection on a regional level. CRP partners assist the state with the

development of strategies for restoring water quality and are actively

involved in implementation solutions.
TCEQ/TSSWCB joint publication SFR-68/04 5

Development of a TMDL or a watershed protection plan (WPP) are the

first steps of an effective NPS implementation program. The TMDL is the

scientific basis for the second step, which is the formulation of an

implementation plan to restore water quality. Where a NPS TMDL has not

yet been developed and approved or is not yet being developed for an

impaired water body, a WPP may be developed in the absence of the

TMDL. The successful implementation of these protection plans will

largely be dependent on the early participation and involvement of

stakeholders in the watershed. Participation and involvement of a large

number of local stakeholders are critical to developing accurate and

comprehensive data for each plan. Early stakeholder participation and

buy-in also provides the best possible setting for implementing subsequent

management strategies called for in the action plans. Chapters 5, 6, and 7

describe established implementation strategies and activities, regional and

local programs and best management practices that the state and regional

agencies use.

Element 7

The state identifies federal lands and activities which are not managed

consistently with state nonpoint source program objectives. Where

appropriate, the state seeks EPA assistance to help resolve issues.

As described in Chapter 4, the state has established formal agreements

with key state and federal agencies to enhance the state’s ability to provide

a coordinated response to needs identified in priority watersheds.

Element 8

The state manages and implements its nonpoint source program efficiently

and effectively, including necessary financial management.

The state takes its fiduciary responsibilities, related to the management of

public funds, very seriously. The TSSWCB and TCEQ have established

operating procedures and tracking systems to ensure the effective use of

CWA §319 grant funds for addressing identified water quality problems.

Both agencies conduct training at the beginning of all projects, with all

contractors, to review what will be required of them throughout the course

of the project. Agency staff maintain close contact with project managers

and provide oversite throughout the course of each project, provide review

of all invoices, and stay in continuous contact with the EPA project officer

regarding the status of the program. In order to enhance the efficiency and

effectiveness of grant management as well as strengthen policies and

procedures that govern the contracting process, both agencies continually

review and update contractor performance criteria, invoice review criteria,

contract manager qualification criteria, and contract shells. 

Element 9

The state periodically reviews and evaluates its nonpoint source

management program using environmental and functional measures of
6 TCEQ/TSSWCB joint publication SFR-68/04

success, and revises its nonpoint source assessment and its management

program at least every five years.

The TCEQ and TSSWCB are committed to thoroughly updating the

state’s Nonpoint Source Management Program every five years. TSSWCB

and TCEQ Nonpoint Source Program staff will produce and review the

management program and provide annual updates to the management

program as necessary to reflect any new activities planned through the

watershed approach. These updates will serve as the basis for work plans

with specific targeted output measures that can be reviewed for success at

the end of the year. 

Major Issues Facing Water Quality in Texas

In response to a favorable climate, adequate water, and a strong economy,

Texas’ population has shown robust growth since 1900. The forecast is for

continued moderate growth, with the population nearly doubling to

36,671,000 residents by 2050. Currently, agricultural irrigation accounts

for the largest percentage of water use, but as the population continues to

grow, combined water use by municipalities and industries is projected to

surpass agricultural usage. 

Physical changes in the environmental landscape can greatly increase the

amount and effects of NPS pollution. For example, urban growth typically

results in dramatic increases in the amount of land covered by impervious

surfaces, such as buildings, roadways, and parking lots. An EPA report on

coastal NPS pollution (EPA, 1993) identifies many impacts from

impervious cover. These changes can result in higher runoff volumes,

increased pollutant loadings, a greater potential for downstream flooding,

erosion of stream channels, reduced base flows, and reduced groundwater

infiltration. Urban development also results in modifications to natural

drainage systems. The loss of wetlands, riparian areas, and stream buffers

reduces the environment’s natural ability to absorb storm flows and to

filter contaminants before they reach nearby water bodies. 

Effective state and local management and oversight of decentralized

wastewater treatment systems are crucial to correcting and avoiding NPS

problems in many developing areas where On-Site Sewage Facilities

(OSSFs), or septic tanks, may be the most cost effective option available.

About 25 percent of the population in the United States depend upon

decentralized wastewater treatment systems or OSSFs, and these systems

are expected to be used in almost 40 percent of new development,

primarily in low-density urban and suburban areas. Results of a survey by

the Texas On-Site Wastewater Treatment Research Council in 2000

indicated that 13 percent of OSSFs in Texas were malfunctioning.

Improved operation and performance of on-site or decentralized systems

are essential to NPS management. 
TCEQ/TSSWCB joint publication SFR-68/04 7

Possible nonpoint source pollutants associated with agricultural and

silvicultural activities include sediment, nutrients, pesticides, organic

matter, and bacteria. Sediment, resulting from erosion from cropland,

pastureland, rangeland, forest lands and stream banks, fills up ponds and

drainage ditches, chokes streams, and fills in estuaries. Sediment can also

carry fertilizers and pesticides to surface waters. Excess nutrients and

pesticides can also be carried in solution by runoff into surface waters and

can seep into groundwater. Nutrients, pesticides, and other pollutants can

come from a variety of sources including over-fertilized fields, runoff

from improperly managed animal operations and waste applications,

inaccurate pesticide sprayer settings, and dozens of other sources. Chapter

6 discusses, in greater detail, the problems the state faces with regards to

NPS pollution and some of the programs in place to address the issue. The

table below lists some of the sources and activities that contribute to NPS

pollution.

Table 1.1 Nonpoint Source Pollution: Sources and Activities

Urban/Suburban Development Industrial/Commercial Operations Agricultural Operations

Impervious Cover Impervious Cover Pesticides-crops

Storm Water Runoff Storm Water Runoff Fertilizers-crops

Construction Materials Storage/Handling Concentrated Animal

Feeding Operations

(CAFO)

Roadways and Vehicle Use Leaks/Spills

Pesticides: lawns/gardens Waste Management Silviculture

Fertilizers: lawns/gardens Air Deposition Irrigation

Septic Systems Oil Field Brine Discharges Wetland and Riparian Loss

Stream Channelization Wetland and Riparian Loss

Wetland and Riparian Loss Stream/Estuary Modification

Illegal Dumping

Despite the abundance of water available in Texas, it is not uniformly

distributed around the State. During recent periods of drought, surface

water and groundwater supplies have been nearly depleted in some

localized areas. Surface and groundwater supplies have already limited

growth and agricultural production in some areas of the state. As the

Texas population has continued to grow at a rapid pace, the need to

conserve, protect, and restore surface water and groundwater supplies has

never been more paramount.

The future success of reducing NPS pollution impacts will depend upon a

coordinated effort of state and local officials, planners, developers, and
8 TCEQ/TSSWCB joint publication SFR-68/04

citizens. Technical assistance and outreach to local and regional

governments is an integral component of urban NPS implementation

efforts. Land use management decisions are best made in the local arena

where buy-in by the affected parties is crucial to success. Government

planners and zoning authorities around the United States are beginning to

tie together the disciplines of urban planning with the need for water

conservation, NPS pollution abatement and water quality improvement.

Other challenges to NPS pollution management in Texas are low public

awareness of the issues, the size and complexity of the problem, the lack

of rigorous scientific definition of NPS problems, institutional barriers to

directing multiple sources of funding to a single problem, and availability

or lack of awareness of funding sources other than CWA§319(h) grants to

address the problems or conduct assessment activities. In addition, it is

difficult, and in some cases impossible, to measure NPS pollution or to

quantify in-stream load reductions due to NPS implementation activities. 

Because of its diffuse nature, NPS pollution is more difficult and costly to

characterize and control than point source pollution. The amount and

variety of precipitation, land use, and geography all determine the effects

from nonpoint source pollution. The lack of a single identifiable source of

pollution sometimes makes it difficult to establish specific

cause-and-effect relationships. In addition, there is a problem of

cumulative impacts resulting from what may be very small problems at an

individual source. 
TCEQ/TSSWCB joint publication SFR-68/04 9

CHAPTER 2 TEXAS' PLAN FOR NONPOINT

SOURCE POLLUTION MANAGEMENT

THE NONPOINT SOURCE PROGRAM

Because they cannot be easily distinguished, nonpoint sources of pollution

are largely unregulated and a majority of the activities designed to reduce

their impact on water quality falls on the states' Nonpoint Source

Programs administered under CWA§319. Texas addresses the

requirements of CWA§319, to manage nonpoint source pollution in

surface and ground water, through the Nonpoint Source Program jointly

administered by the TCEQ and the TSSWCB. The TSSWCB administers

the Nonpoint Source Program for agricultural and silvicultural NPS

management and the TCEQ administers the Nonpoint Source Program for

all other nonpoint sources. The CWA§319 Nonpoint Source Program

consists of three broad components as defined by §319(a), §319(b) and

§319(h). Table 2.1, below, lists those requirements.

Table 2.1 The Nonpoint Source Program

Assessment Report

CWA §319(a)

Management 

Program

CWA §319(b)

Grant Program

CWA §319(h)

Identifies water bodies

impacted by nonpoint sources

that do not meet water quality

standards

Identifies the BMPs and

measures to reduce pollutant

loadings from nonpoint sources.

Outlines application requirements,

including an identification and 

description of the best management

practices and measures

Identifies categories of

nonpoint sources which add

significant pollution to

impacted water bodies

Identifies programs* to achieve

implementation of the BMPs

Identifies how grant funds will be

allocated

Describes the process for

identifying best management

practices and measures to

control nonpoint sources

Includes a schedule with

milestones for utilization of the

program* implementation

methods and implementation of

the BMPs

Identifies priorities for grant funds

Identifies and describes State

and local programs for

controlling pollution added

from nonpoint sources

Identifies sources of federal and

other assistance and funding and

purposes for which it will be

used

States the requirement for annual

reporting to the EPA regarding progress

toward milestones and as appropriate,

reductions in loadings and

improvements in water quality

*Programs may include: nonregulatory or regulatory programs for enforcement, technical assistance,

financial assistance, education, training, technology transfer, and demonstration projects.
10 TCEQ/TSSWCB joint publication SFR-68/04

State Priorities for CWA § 319 Funding

One of the tools to assist states in NPS management is the CWA§319

Nonpoint Source grant. Funding is provided to states under CWA§319(h),

defined in the above chart, to implement its Nonpoint Source Management

Program. Due to a lack of adequate resources, Texas must establish

priorities for its CWA§319 grant funding. Highest priority is given to

funding those projects or activities which address water bodies not

meeting water quality standards due to NPS pollution, as identified in the

Texas CWA§303(d) List of impaired water bodies. To ensure fiscal

responsibility and adequately focus limited resources, the state’s Nonpoint

Source Program uses the Texas Water Quality Inventory and 303(d) List

process to establish its priorities (see Chapter 5). Appendices B and C

represent a listing of the state’s priority water bodies based on the 2002

Texas Water Quality Inventory and 303(d) List. This list will change as

the Texas Water Quality Inventory and 303(d) List is updated.

In addition, Texas will adopt TMDLs in impaired waterbodies identified

as impacted by nonpoint source pollution in the state's CWA§305(b)

assessment. The state will facilitate 100 percent of the state-approved

Implementation Plans developed for NPS TMDLs adopted to eliminate

significant impacts to water quality from present and future activities to

the extent practicable under state and federal statutes, programs, and

resources. Texas will also implement Watershed Protection Plans to

address NPS water quality issues which, may not have a TMDL

Implementation Plan to the extent practicable under state statutes,

programs, and resources. The state will continue to conduct activities to

prevent the degradation of water quality. The state will also facilitate

implementation of activities to restore and protect groundwater quality

where feasible. 

The TCEQ and TSSWCB encourage the participation of all eligible grant

recipients in the CWA §319(h) grant program. Local participation in the

program provides the following benefits: improves the quality and

quantity of information used to identify and develop water quality

restoration activities, ensures a local perspective in decision making, helps

stakeholders gain insight into the nature of water quality problems and

solutions, and promotes local stewardship of water resources through

voluntary actions to curb or prevent nonpoint source pollution.

Resource Leveraging

The majority of the State of Texas' annual CWA §319 grant allocation is

"passed through" to political subdivisions by the TCEQ and TSSWCB

through the execution of interagency or interlocal contracts. CWA§319(h)

contractors are considered sub-recipients and, as such, are subject to all

applicable federal regulations and statutes.
TCEQ/TSSWCB joint publication SFR-68/04 11

For the State's NPS Program to be effective on both a statewide and

watershed level, the TCEQ and TSSWCB must work closely with other

state, regional, and local organizations to implement management

measures and optimize the use of all available resources. The magnitude

of resources needed to restore beneficial uses and address nonpoint

sources of pollution is much larger than the amount of funding available

from the CWA§319(h) grant program. Therefore, the State of Texas NPS

Program encourages the use of leveraged resources when feasible.

Federal Match Requirement

The Nonpoint Source Grant Program requires that federal funds be

matched forty percent (40%) with non-federal funds. "Match" refers to

funds or services used to conduct a project that are not borne by grant

funds. All project match must: (1) relate directly to the project for which

the match is being applied; (2) be reasonably valued; and (3) be

supported by documentation. The cost share does not have to originate

with the grant recipient but can come from individuals, outside

organizations, other local governments, or state agencies as long as the

source of the matching funds is non-federal and is not being used to match

another federal grant program.

Matching or cost share can be financed in several ways:

Cash 

These are costs that relate directly to the project for which the match is

being applied and which are paid by the grant recipient. This is the most

common method of fulfilling the federal match requirement.

In-Kind Services

In-kind services are typically defined as a donation separate from the

grantee which has a cash value associated with it but may not require a

cash outlay during the grant period. In-kind contributions may consist of

the donation of real property, space and equipment, or a donation of time

or services directly benefitting the grant project and specifically 

identifiable with it. The use of "third-party" or "in-kind" donations to meet

grant matching requirements is regulated in 40 CFR 30.307, 40 CFR 31.24

(6) and (7) and is also covered in OMB Circular A. Third party in-kind

contributions may be necessary to accomplish program activities and are

allowable under applicable cost principles if the grantee was required to

pay for them.

Clean Water Act State Revolving Fund

Another funding tool available to Texas for NPS management is the Clean

Water Act State Revolving Fund (CWSRF). The Texas Water

Development Board (TWDB) can provide loans for NPS pollution

abatement projects through the CWSRF at interest rates lower than the

market offers. Loans can be made to towns, counties, conservation
12 TCEQ/TSSWCB joint publication SFR-68/04

districts, and other public agencies, as well as private individuals and nonprofit organizations. A water quality based priority system is used to rank

potential applicants and fund projects with the greatest environmental

benefits. Some of the activities that are eligible for funding include

agricultural, rural, and urban runoff control, estuary improvement,

nonpoint source education, wet weather flow control including stormwater

and sewer overflows that are not associated with a Texas Pollutant

Discharge Elimination System (TPDES) permit. Repayments on CWSRF

loans provided from non-federal sources can be used as eligible match to

CWA §319(h) grant funds.

Partnerships for Conducting Work

The State primarily uses the infrastructure of the Clean Rivers Program

(CRP), Soil and Water Conservation Districts (SWCDs), Texas

Groundwater Protection Committee (TGPC), and the University System to

coordinate, develop, and implement its NPS Program. These entities are

each charged with certain water quality stewardship responsibilities and

can bring a great deal of experience related to research, assessment,

laboratory analysis, and implementation and education activities. In

addition, these entities conduct meetings and coordinate activities with a

variety of local, regional, and state level stakeholders to pursue effective

solutions to reduce or prevent nonpoint source pollution.

A group, consisting of nonpoint source stakeholders, was established to

assist in the preparation and review of the Texas Nonpoint Source

Pollution Management Program. This stakeholder group was established

to ensure involvement by local public and private agencies and

organizations which have expertise in control of nonpoint sources of

pollution.

Goals for NPS Management

The state's management program for nonpoint source pollution utilizes

baseline water quality management programs and regulatory,

non-regulatory, financial, and technical assistance approaches to achieve a

balanced NPS management program. Nonpoint source pollution is

managed through assessment, implementation, and education. The TCEQ

and TSSWCB have established long and short-term goals and objectives

for NPS management for guiding and tracking the progress of NPS

management in Texas. The goals describe high-level guiding principles

for all activities under the Program. The objectives specify the key

methods that will be used to accomplish the goals. Success in achieving

the goals and objectives are reported annually in the State’s NPS Annual

Report, which is submitted to EPA in accordance with CWA§319(h)(11).

This report is also available by contacting the TCEQ or TSSWCB or

visiting their Web sites.
TCEQ/TSSWCB joint publication SFR-68/04 13

Long-Term Goal

The long-term goal of the State of Texas nonpoint source pollution

program is to protect and restore water quality from nonpoint source

pollution through assessment, implementation, and education. 

Objectives

# Focus NPS abatement efforts, implementation strategies, and

available resources in watersheds identified as impacted by

nonpoint source pollution.

# Support the implementation of state, regional, and local

programs to prevent nonpoint source pollution through

assessment, implementation, and education.

# Support the implementation of state, regional, and local

programs to reduce NPS pollution, such as the implementation

of strategies defined in state-approved TMDL Implementation

Plans and Watershed Protection Plans.

# Support the implementation of state, regional, and local

programs to reduce NPS pollution to groundwater through the

Groundwater Protection Strategy, based on the potential for

degradation with respect to use.

# Develop partnerships, relationships, memoranda of agreement,

and other instruments to facilitate collective, cooperative

approaches to manage NPS pollution.

# Increase overall public awareness of NPS issues and

prevention activities.

# Enhance public participation and outreach by providing forums

for citizens and industry to contribute their ideas and concerns

about the water quality management process. 

Short-Term Goals and Milestones

Goal One - Data Collection and Assessment 

Coordinate with appropriate federal, state, regional, and local entities,

private sector groups, and citizen groups and target CWA §319(h)grant

funds towards water quality assessment activities in high priority,

nonpoint source-impacted watersheds, vulnerable and impacted aquifers,

or areas where additional information is needed. 

Objectives

Evaluate the condition of the State’s water bodies, on a biennial basis, and

prepare a report containing this evaluation, as required by CWA§305(b) to

determine: a) water bodies not meeting water quality standards due, at

least in part, to nonpoint source pollution, and; b) the cause of the

impairment.
14 TCEQ/TSSWCB joint publication SFR-68/04

! Identify surface waterbodies and aquifers from the Texas

Water Quality Inventory and 303(d) List and Joint

Groundwater Report that need additional information to

characterize non-attainment of designated uses and quality

standards. This information is used during annual

coordinated monitoring meetings and during special project

planning to focus on high priority waters.

! Ensure that monitoring procedures meet quality assurance

requirements and are in compliance with EPA-approved

TCEQ and/or TSSWCB Quality Management Plans.

! Conduct special studies to determine sources of NPS

pollution and gain information to target TMDL activities

and BMP implementation.

! Develop and adopt, at the state level, TMDLs,

Implementation Plans and Watershed Protection Plans to

maintain and restore water quality in waterbodies identified

as impacted by NPS pollution. 

! Conduct monitoring to determine effectiveness of TMDL

Implementation Plans, Watershed Protection Plans, and

BMP implementation as appropriate.

Goal Two - Implementation 

Coordinate and administer the NPS program to support the

implementation of TMDL Implementation Plans and/or Watershed

Protection Plans and other state, regional, and local plans/programs to

reduce NPS pollution. Manage all CWA§319 grant funds efficiently and

effectively to target implementation activities to the areas identified as

impacted, or potentially degraded with respect to use by NPS pollution.

Objectives

Prevent and reduce NPS pollutant loadings in the surface water bodies,

groundwater aquifers, wetlands, and coastal areas, through the execution

of TMDL implementation Plans, Watershed Protection Plans,

recommendations from the Joint Groundwater Monitoring and

Contamination Report, the Groundwater Protection Strategy, and various

agricultural / silvicultural activities. 

! Work with regional and local entities to determine priority

areas and develop and implement strategies to address NPS

pollution in those areas.

! Develop and implement BMPs to address constituents of

concern or water bodies not meeting water quality

standards in watersheds identified as impacted by NPS

pollution.

! Develop and implement BMPs to address NPS

constituents of concern or water bodies not meeting water
TCEQ/TSSWCB joint publication SFR-68/04 15

quality standards in aquifers identified with impacts or as

vulnerable in the latest state approved Texas Water Quality

Inventory and 303(d) List or in Chapter 5 of this document.

! Implement state-approved TMDL Implementation Plans

and Watershed Protection Plans developed to restore and

maintain water quality in water bodies identified as

impacted by nonpoint source pollution.

Goal Three - Education 

Conduct education and technology transfer activities to help increase

awareness of NPS pollution and prevent activities contributing to the

degradation of water bodies, including aquifers, by NPS pollution.

Objectives

Reduce the amount of NPS pollution entering the water bodies of Texas

through pollution prevention activities and education. 

! Enhance existing outreach programs at the state, regional,

and local levels to maximize the effectiveness of NPS

education.

! Administer programs to educate citizens about water

quality and their potential role in causing NPS pollution.

! Where applicable, expedite development of technology

transfer activities to be conducted upon completion of BMP

implementation.

! Conduct outreach through the Clean Rivers Program, Texas

Cooperative Extension, Soil and Water Conservation

Districts, and others to facilitate broader participation and

partnerships. Enable stakeholders and the public to

participate in decision-making and provide a more

complete understanding of water quality issues and how

they relate to each citizen.

! Implement outreach activities identified in the Texas

Groundwater Protection Strategy to prevent NPS impacts

to groundwater.

! Implement public outreach and education to maintain and

restore water quality in waterbodies impacted by NPS

pollution.

The long-term goal will remain the goal of NPS management as long as

nonpoint source water pollution is an issue. Short- term goals will be

examined every five years. Measurement of the goal achievement

progress, within the priority water bodies, will be reported on an annual

basis in the State's NPS Annual Report. The TCEQ and the TSSWCB will

evaluate the management program, on an annual basis, to determine a

need for revision and revise the document at least every five years. 
16 TCEQ/TSSWCB joint publication SFR-68/04

Milestones

Water bodies with completed TMDLs, those undergoing current TMDLwork, and water bodies currently implementing Watershed Protection

Plans have been listed in Appendix C, in table format, in order to gauge

progress, through a time line, against the detailed milestones that are

included below and in the first column of each table within the appendix.

# Employ or develop a local Watershed Committee to solicit

input and encourage the participation of affected stakeholders

in the decision-making process. 

# Complete the assessment of pollutant problems by reviewing

existing water quality data, conducting an inventory of point /

nonpoint sources, land use data, and all known stressors

influencing water quality.

# Complete water quality monitoring. Analyze data, assess

loadings, and determine the origin and distribution of

pollutants.

# Develop and apply model(s) to determine numerical load

allocations. Recommend control strategies for implementation.

# Develop a detailed action plan (TMDL, IP, or WPP) which

establishes overall goals and objectives, load allocation,

strategy for load allocation, timetable for implementation, and

a list of expected results.

# Implement voluntary and regulatory actions in the watershed

and adust the BMP implementation based on follow-up

verification monitoring of effectiveness.

The programs discussed throughout this document are responsible for NPS

management and implementation of the goals, objectives, and milestones.

Nonpoint source management must be a coordinated effort to be

successful. Therefore, the goals and milestones are over-arching for all

nonpoint source programs of Texas. 
TCEQ/TSSWCB joint publication SFR-68/04 17

A watershed is a geographic

area in which water, sediments,

and dissolved materials drain

into a common outlet. This

outlet could be a stream, lake,

playa, estuary, or ocean.

Watersheds are also commonly

called basins or drainage areas.

Everything that is done in a

watershed can affect the quality

of the receiving water body.

CHAPTER 3 TEXAS' WATERSHED APPROACH

The watershed approach described in this chapter provides an overview of

Texas’ management strategy for surface water quality. Some of the topics

in this chapter are covered in more detail in other parts of this document. 

In order to protect water quality, we must define and measure it, identify

the types and sources of pollution, and implement plans to protect or

restore it. Under the federal Clean Water Act, Texas and other states must

establish standards that describe how the water bodies are used, and carry

out a program to regularly monitor the status of water quality against those

standards. Texas uses several strategies to protect water quality, such as

issuing permits for discharges to streams and lakes, or devising watershed

protection plans with local stakeholders. When these protective strategies

are not sufficient to keep surface water bodies clean enough to be used in

ways that meet the standards for them, the state takes action to restore

water quality. 

A WATERSHED APPROACH

By looking at a watershed—the geographic area that drains to a common

body of water—Texas can evaluate all the sources of pollution that may

be affecting water quality. This approach is used to identify water quality

problems and issues, to establish statewide and local water quality

priorities, to develop community-based solutions, and to cooperate with

local stakeholders to implement those solutions. The watershed approach

is based on four basic principles:

# geographic focus based on hydrology

rather than political boundaries

# water quality-based objectives based on

scientific data

# coordinated priorities and integrated

solutions

# diverse, well-integrated partnerships

These principles guide all activities of the TCEQ

water quality programs. They provide the framework

for coordinating people and activities to achieve the

state’s clean water goals. 

Protecting our lakes, bays, and streams is a complex process—not only in

terms of the number of sources of pollution and the variety of water body

types and interactions, but also in the number of people that must be

involved. Using a watershed approach, we often find that problems seen at
18 TCEQ/TSSWCB joint publication SFR-68/04

Surface waters in the state include

lakes, bays, ponds, impounding

reservoirs, springs, rivers, streams,

creeks, estuaries, wetlands,

marshes, inlets, canals, the Gulf of

Mexico inside the territorial limits of

the state, and all other bodies of

surface water, natural or artificial,

inland or coastal, fresh or salt, navigable or non-navigable. This

includes the beds and banks of all

water-courses and bodies of surface

water that are wholly or partially

inside or bordering the state or subject to the jurisdiction of the state;

except that waters in treatment systems that are authorized by state or

federal law, regulation, or permit,

and that are created for the purpose

of waste treatment are not considered to be water in the state.

one point in a stream or lake are caused further upstream. With this in

mind, we identify and remedy water quality problems at their source.

Managing Surface Water by Geographic Area

Texas uses the major watersheds—or river and coastal basins—of the state

as the geographic units around which it builds its watershed approach to

managing surface water quality.

Classifying Waters 

by Geographic Area

Because of the vast extent of surface waters in

Texas, and the ecological diversity of the state,

the major rivers, lakes, and estuaries have been

subdivided and assigned tracking numbers, called

classified segments. The classified segments are

given numbers that correspond to the major river

basin in which they are located. 

For example, the Brazos River, one of the state’s

longest rivers, has been divided into 57 separate

segments and designated as Basin 12. Many lakes

also lie within the Brazos River basin, and are

given segment numbers. All the segment numbers

have four digits—the first two indicate the basin

number, and the second two indicate the specific

segment. For example, Segment 1210 is Lake

Mexia in the Brazos River Basin; Segment 1427 is 

 Onion Creek in the Colorado River Basin. 

The areas of the classified segments are defined in the Texas Surface

Water Quality Standards. Most of the perennial (always flowing) rivers in

the state, and lakes and estuaries with large areas, are classified. Figure 3.1

shows the state’s major rivers and coastal basins, and the basin numbers

assigned to them. 

However, not all bodies of water in Texas are classified in the Standards.

For example, when managing a classified segment of the Brazos River, it

may be necessary to examine water quality in the tributaries that flow into

that segment—which are part of the segment’s watershed. Some of these

tributaries may not be part of the classified segment system. When that

happens, for management purposes, the tributary is assigned a tracking

number, which is referred to as an unclassified segment. 
TCEQ/TSSWCB joint publication SFR-68/04 19

This unclassified tributary will be assigned the number of the classified

segment in whose watershed it resides, along with a letter. For instance,

Segments 1806A, 1806B, and so on. The same numbering system applies

to unclassified lakes. Both classified and unclassified segments are

referred to generically as segments. The term water body is used to refer to

entire rivers, reservoirs, or estuaries.
Figure 3.1 Major River Basins and Planning Areas in Texas 

20
TCEQ/TSSWCB joint publication SFR-68/04 21

Figure 3.2. The Water Quality Management Cycle

The Water Quality 

Management Cycle

The water quality management cycle is the process through which the

state works with other organizations and with local residents who have a

stake in water quality. This approach is used to continuously identify

water quality problems, to establish statewide and local water quality

priorities, to develop community-based solutions, and to collaborate with

local stakeholders to implement those solutions. 

Because environmental

planning and

implementation are rarely

one-time activities, the

water quality

management cycle has

five phases that are

repeated regularly

(Figure 3.2). This

iterative cycle reflects the

dynamic nature of

watershed management. 

A successful

 management framework

must be flexible enough

to accommodate this dynamic nature in an

orderly manner over

time.

Figure 3.2 demonstrates

the dynamic nature of

this cycle and the major

steps in the process of

managing the quality of

the state’s surface waters.

Managing water quality through a watershed approach requires an

ongoing cycle of tasks: 

! Standards and Planning: setting standards for surface water

quality and revising or formulating monitoring plans; 

! Monitoring: collecting data to monitor the condition of

surface waters; 
22 TCEQ/TSSWCB joint publication SFR-68/04

! Assessment and Targeting: assessing data to determine

water quality status and to identify any impairments; 

! Developing Strategies: for protecting, improving, or

restoring water quality with pollutant source controls and

practices; and 

! Implementing Pollution Controls: for both point and nonpoint sources and evaluating progress, which may lead

back to revising those plans or formulating new ones. 

Standards and Planning 

Water quality standards are the foundation for managing surface water

quality. A water quality standard is the combination of: 

! a designated use and 

! the criteria necessary to attain and maintain that use 

Standards define the goals for a body of water. The uses prescribe the

purposes for which the water should be fit—such as recreation, support of

aquatic life, or drinking water supply. 

Five general categories for water use are defined under the Texas Surface

Water Quality Standards: 

! aquatic life use

! contact recreation

! public water supply

! fish consumption

! general uses 

The criteria define the instream conditions necessary to support those

uses. Criteria are either: 

! numeric—a limit on the amount of a certain pollutant that a

water body may contain; or 

! narrative—a prohibition on a certain condition in the water,

such as color, odor, or turbidity. 

Water quality standards are the basis for :

! evaluating monitoring data to see if water quality is being

maintained,

! setting levels of treatment for permitted wastewater

discharges, and
TCEQ/TSSWCB joint publication SFR-68/04 23

Water quality standards are the

foundation for managing surface water

quality. A standard consists of two

parts:

! a use, or the purposes for which

surface water will be used; and

! criteria, or the indicators that will

be used to determine if the use is

met. 

Uses and criteria are paired to set the

standards for water quality. For

example, one use is habitat for fish and

other aquatic organisms. It is called the

"aquatic life use" in the standards.

Criteria used to determine whether the

aquatic life use is met may include how

much dissolved oxygen is present in

the water, how much water flows

through a stream and how deep it is,

and how diverse the population of

aquatic organisms.

! establishing water quality targets to set total maximum

daily loads of pollutants.

Some standards are applied generally to many different water bodies,

while some are site-specific. Any one water body will usually have

multiple uses designated for it. For example, a lake or stream may be

designated for use as a source of drinking, for recreation, and as a healthy

environment for fish and other aquatic organisms. 

The standards also define an antidegradation policy that protects existing

uses and the state’s highest quality waters. The complete Texas Surface

Water Quality Standards are available in Title 30 of the Texas

Administrative Code (TAC), Chapter 307.

The standards assign specific uses for most

medium to large water bodies, and general

uses for all water bodies. For example, Possum

Kingdom Lake must meet requirements for the

specific uses of public water supply,

swimming and other recreation, and a high

quality environment for fish and other aquatic

species. Each use defined in the standards is

linked to measurements for specific conditions

or pollutants. These measurements are used to

evaluate whether water quality is good enough

to maintain its designated uses.

Other basic uses — such as navigation,

agricultural water supply, and industrial water

supply — are applicable to all water in the

state where they can be achieved.

Some indicators of water quality, such as the

narrative requirements in the general criteria,

are intended to protect multiple uses and

aesthetic conditions.

Aquatic Life

Standards associated with the aquatic life use are designed to protect plant

and animal species that live in and around the water. Some pollutants or

conditions that may result in harm to aquatic species include low levels of

dissolved oxygen or the presence of toxic substances such as metals or

pesticides in water. Because oxygen is necessary to support life, its

concentration in water is an easy-to-measure characteristic that generally

reflects the ability of a water body to support a healthy, diverse aquatic

population. Other important indicators of suitability for the aquatic life use

include concentrations of substances that can be toxic, such as certain
24 TCEQ/TSSWCB joint publication SFR-68/04

metals—like selenium, mercury, and zinc, and some toxic organic

pollutants—such as pesticides and some industrial chemicals).

Contact Recreation

The standard associated with the contact recreation use is designed to

ensure that water is safe for swimming or other water sports that involve

direct contact with the water, especially with the possibility of ingesting it.

High concentrations of certain bacteria in water indicate that there may be

a risk of becoming ill from recreational activities. Though it is possible to

swim in water that does not meet this standard without becoming ill, the

probability of becoming ill is higher.

Public Water Supply

Standards associated with the public water supply use indicate whether

water from a lake or river is suitable for use as a source for a public water

supply system. Source water is treated before it is delivered to your tap; a

separate set of standards governs treated drinking water. Indicators used

to measure the safety or usability of surface water bodies as a source for

drinking water include the presence or high concentrations of substances

such as pesticides or some metals. Concentrations of dissolved minerals,

such as sulfate or chloride, are also measured, since treatment to remove

high levels of minerals from drinking water may be expensive. Too many

dissolved minerals in drinking water may cause a disagreeable taste, odor

or color, even after it is treated by public water supply organizations. 

Fish Consumption

Standards associated with the fish consumption use are designed to protect

people from eating fish or shellfish that may be contaminated. These

standards identify levels at which certain toxic substances dissolved in

water may accumulate in the tissue of aquatic species. In addition, fish

tissue is examined for accumulated toxins to determine the risk to human

health from consuming fish or shellfish. If significant risk is identified,

the Texas Department of Health issues advisories for such water bodies

that restrict or limit consumption of fish taken from them. The standards

also specify limits on bacteria levels in marine waters to ensure that

oysters or other shellfish are safe for public sale and consumption.

Monitoring

Water quality data are gathered regularly to monitor the condition of the

state’s surface waters. For example, chemical, physical, biological,

hydrological, hydraulic, and land use data are collected by the TCEQ, the

regional agencies of the Clean Rivers Program, and other organizations,

such as state and federal agencies, educational institutions, volunteer

monitoring groups, and private organizations under contract to the state.

Monitoring plans are guided by quality assurance project plans (QAPPs)
TCEQ/TSSWCB joint publication SFR-68/04 25

that ensure that data are collected according to generally accepted

practices and are of sufficient quality to be used in making scientific

assessments and management decisions. 

Texas conducts five main types of data collection to monitor the status of

water bodies:

! routine monitoring

! systematic monitoring

! targeted monitoring

! permit support monitoring

! effectiveness monitoring

Routine monitoring is designed to assess the status and trends of overall

water quality throughout the state, and for each river basin. Data are

collected using a monitoring network of key sites on the major water

bodies in each basin on a regular basis. Monitoring sites may also include

smaller water bodies to support characterization of ecoregions and/or

basin-specific conditions. 

Systematic monitoring focuses on evaluating subwatersheds and

unclassified water bodies. Its purpose is to investigate and detect areas of

concern, and isolate issues that require further study. It also includes

monitoring at sites to check the status of water bodies (identify

improvements or concerns). This monitoring strategy rotates resources

around the river basin to gather information on water bodies that would

not normally be included in the routine monitoring program.

Targeted monitoring is conducted on water bodies where there is reason

to believe there is a threat or a concern for water quality, to establish the

extent and degree of an impairment, or to determine the best strategy for

restoring water quality. Sometimes called special studies, targeted

monitoring activities usually involve intensive periods of data collection at

sites where routine or systematic monitoring identified impacts, concerns,

or impaired uses.

Permit support monitoring is used to address specific areas where

additional information is need to support the development of permits that

allow wastewater discharges. This may include studies to gather sitespecific information for use in developing permits. 

Effectiveness monitoring is conducted to evaluate whether management

practices, regulatory measures, and watershed improvement and

restoration plans are producing the desired results. 

The CRP plays a key role in the TCEQ’s yearly integration of these

various monitoring needs into a coordinated monitoring schedule for the
26 TCEQ/TSSWCB joint publication SFR-68/04

entire state. The schedule shows all surface water monitoring being

conducted by the TCEQ or under its contracts or cooperative agreements

for each planning year. It does not include coordination of monitoring by

wastewater dischargers that is reported to the state as a condition of their

permits.

Planning and development of the coordinated monitoring schedule takes

place from January through May preceding the state fiscal year for which

the plan is developed. To support coordinated monitoring, the TCEQ has

developed guidance for selecting sites and for sampling methods for

routine, systematic, and targeted monitoring. The coordinated monitoring

schedule is hosted by the Lower Colorado River Authority, a CRP agency,

on its Web site at http://cms.lcra.org/. 

Coordination of 

State and Regional Priorities

The TCEQ works in partnership with the Texas Clean Rivers Program

(CRP) to set regional priorities for protecting and improving the state’s

surface waters. The CRP brings together state, regional, and federal

agencies to:

! eliminate duplication in monitoring surface water quality

and thereby leverage resources; 

! support data sharing and quality assurance by creating

uniformity in methods;

! establish regional stakeholder forums to involve the public

in identifying, prioritizing, and managing local water

quality issues;

! set priorities and schedules for monitoring; and

! identify problems and preventive or remedial measures. 

To support those goals and the TCEQ’s overall water quality management

program, the CRP’s long-term action includes nine key methods: 

! Ensure efficient use of public funds.

! Enhance public participation and outreach.

! Encourage comprehensive and cooperative watershed

planning.

! Maintain basin-wide water quality monitoring programs.

! Develop and maintain a river basin water quality database

clearinghouse.

! Provide quality-assured data to the TCEQ for use in water

quality decision-making.

! Focus on priority issues and address local initiatives.
TCEQ/TSSWCB joint publication SFR-68/04 27

Assessment is the

evaluation of data

and information

against a set of

standards or

benchmarks. 

! Identify, analyze, and report on water quality issues and

potential causes of pollution.

! Identify and evaluate alternatives for preventing and

reducing pollution.

Through its activities, the CRP plays a vital role in ensuring clean, useable

water supplies for Texas. The partner agencies for the CRP, and the

regions for which they are responsible, are shown in Figure 3.1. 

Assessment and Targeting

Every two years, the states must assess the quality of their water and target

those water bodies for which additional data collection or restoration

efforts are required. This information is submitted to the U.S.

Environmental Protection Agency (EPA) in a report that details the extent

to which each water body in the state meets water quality standards. The

TCEQ publishes this biennial assessment as the Texas Water Quality

Inventory and 303(d) List. 

In the past, Texas published two different reports, often referred

to as the 305(b) Report and 303(d) List, after the sections in the

Clean Water Act that describe the requirements of the assessment.

Since 2002, both reports have been published as one document, in

accordance with guidance from the EPA. The document still has

essentially two main parts: the Inventory, which gives the status

of all the waters in the state, and the 303(d) List, which identifies

waters that do not meet one or more of the standards established

to ensure the beneficial use of the water body.

The Inventory 

The Inventory describes the status of all surface water bodies of the state

that were evaluated for the given assessment period. The TCEQ uses data

collected during the most recent five-year period in making its assessment.

The data are gathered by many different organizations that all operate

according to approved quality control guidelines and sample collection

procedures. The quality of waters described in the Inventory represents a

snapshot of conditions during the time period considered in the

assessment. Water quality is dynamic and constantly changing.

The assessment guidance is based on a set of methods that apply the

surface water quality standards and criteria. These methods are developed

by the TCEQ with the advice of a diverse group of stakeholders, and are

made available to partner organizations and stakeholders every two years,

prior to the biennial assessment in which they will be used. 
28 TCEQ/TSSWCB joint publication SFR-68/04

The 303(d) List 

The 303(d) List is an important management tool produced as part of the

assessment. It identifies waters for which preventive measures have not

been sufficient to achieve water quality standards. The 303(d) List is

subject to review and approval by the EPA. 

When a water body is identified on the 303(d) list, certain new

requirements may apply for facilities that discharge wastewater into the

listed water body. Importantly, the TCEQ may not allow any new or

expanded discharges of a listed pollutant into a Category 5 water body if it

contributes to the impairment. Other possible effects on permits that may

result from a restoration plan for the water body include:

! TCEQ may initiate amendments to impose new limits, or

may impose them with routine renewals or amendments.

! Permitted loading from existing facilities may be

substantially reduced.

! New facilities may be required to meet more stringent

effluent limits than expected. 

! In some cases or areas, storm water permits may receive

new or more stringent limits.

! Dischargers may no longer be eligible for general permits.

! Additional monitoring and reporting requirements may be

added.

Additional nonpoint source management practices may also be required,

such as:

! Management of runoff by such means as detention basins,

filter strips, infiltration basins, porous pavement, retention

ponds, and swales.

! Management of operations to decrease or eliminate

pollutants in runoff, such as spill prevention and control,

source controls, and education.

Categories Indicate Water Quality Status 

The Inventory assigns each assessed water body to one of five categories

to provide information to the public, the EPA, and internal agency

programs about water quality status and management activities (see Table

1). The categories indicate the status of the water body, and how the state

will approach identified water quality problems. 

Higher category numbers correspond to higher levels of effort required to

manage water quality. For example, water bodies in Category 5 constitute

the 303(d) List, and require remedial action by the state to restore water
TCEQ/TSSWCB joint publication SFR-68/04 29

Impairment

The combination of one designated

use with one pollutant or condition

of concern.

Parameter 

A pollutant or condition affecting a

body of water; also, a criterion used

to measure attainment of a particular use. Examples include low dissolved oxygen concentrations, a

particular metal such as zinc, or a

particular pesticide such as DDT. 

quality. For water bodies in Category 5a, the state must develop a

scientific model called a total maximum daily load (TMDL) and a plan to

implement it (these are discussed in more detail in the section “Restoring

Water Quality”). Water bodies in Category 1 are meeting all their uses,

and require routine monitoring and preventive action. 

 Table 3.1 Categories of Use Attainment in the Water Quality Inventory

Category 1 Attaining all water quality standard and no use is threatened.

Category 2 Attaining some of the designated uses; no use is threatened; and

insufficient or no data and information are available to determine if the

remaining uses are attained or threatened.

Category 3 Insufficient or no data and information to determine if any designated

use is attained.

Category 4 Standard is not supported or is threatened for one or more designated

uses but does not require the development of a TMDL. 

Category 4a TMDL has been completed and approved by EPA. 

Category 4b Other pollution control requirements are reasonably expected to result

in the attainment of the water quality standard in the near future. 

Category 4c Nonsupport of the water quality standard is not caused by a pollutant.

Category 5 Category 5 is the 303(d) list. The water body does not meet applicable

water quality standards or is threatened for one or more designated uses

by one or more pollutants. 

Category 5a A TMDL is underway, scheduled, or will be scheduled. 

Category 5b A review of the water quality standards will be conducted before a

TMDL is scheduled. 

Category 5c Additional data and information will be collected before a TMDL or

review of the water quality standard is scheduled.

Further, these categories must be applied to each

combination of designated use and the parameter

(pollutant or condition of concern) that determines

support of beneficial uses. The combination of the

use with the parameter is called an impairment.

For example, the concentration of dissolved

oxygen is one of the criteria used to determine the

support of the aquatic life use. If dissolved oxygen

concentrations are too low, one impairment would

exist for the water body under examination. 

Since a water body has multiple uses, it may fall

into different categories for different uses. In that
30 TCEQ/TSSWCB joint publication SFR-68/04

case, the overall category for the water body is the one with the highest

category number. 

For example, Spring Creek, Segment 1008 in the San Jacinto River Basin,

does not support the contact recreation use (Category 5c) nor the aquatic

life use (Category 5b). It supports the public water supply and general

uses, and the fish consumption use has not been assessed. The designation

for the entire water body is Category 5b, since that is the highest category

associated with any one of its uses. 

Ranking Category 5a Segments

After the draft 303(d) List is compiled, the TCEQ assigns a rank of High,

Medium or Low to each impairment (see Table 3.1) of Category 5a

segments. This rank is used in determining the priority for implementing

TMDLs. The rank is based on criteria such as the degree to which the

water quality standard is exceeded, and the level of public concern (as

judged, in part, by the interest of local groups). Comments are accepted

during the public review period and changes may be made as a result of

public comment.

Factors considered in the ranking include:

! whether the impairment affects human health

! proximity of one impaired segment to others that have

similar or related pollutants

! local and regional support for TMDL development

! data availability for immediate TMDL development

! similarity of the strategies and actions needed to address

impairments

The specific criteria and point system used for scheduling waters for

TMDL development is shown in Table 3.1.

Scheduling Management Activities for Listed Waters

The amount of time it takes to address a listed segment varies greatly. In

some cases, a segment may be addressed within one to three years of its

listing; in other cases, several years may be needed.

Several factors influence the scheduling of management activities for all

three categories (5a, 5b, and 5c) of the list, such as the number of

successive years a segment has been on the list, scheduled permit

renewals, or administrative demands. Available funding ultimately

determines how many new restoration or management projects will be

initiated annually. 
TCEQ/TSSWCB joint publication SFR-68/04 31

Schedule for TMDL Development

The TCEQ is committed to beginning development of TMDLs for all

segments in Category 5a within 10 years of their initial listing. In

compliance with the federal regulations, the TCEQ prepares a schedule

after each Water Quality Inventory is completed that identifies the

TMDLs that will be initiated within the next two years. 

The most important factor in determining the schedule is the priority

ranking assigned to each impairment. Others factors include additional

data or information gathered since the listing and ranking, and the

availability of funding. The TMDL schedule is submitted to the EPA in

April of even-numbered years along with the 303(d) List.

Table 3.2 Criteria for Prioritizing TMDLs (Category 5a Waters) for Development

1. The pollutant causing the impairment is a: Points

A. Threat to human health

Includes nonsupport of the following uses: public water supply, contact recreation, fish

consumption, oyster waters.

50

B. Threat to aquatic life

Includes nonsupport of the following uses: aquatic life, general, and narrative criteria

30

C. Threat to both human health and aquatic life 30

2. Watershed proximity, related pollutants, and the ease of incorporating a newly identified

parameter of nonsupport into an existing project.

Points

A. Ongoing TMDL in the same segment for a different pollutant 10

B. Ongoing TMDL in the same segment watershed for the same pollutant 20

C. Ongoing TMDL in the same segment watershed for a different pollutant 10

D. Ongoing TMDL in a contiguous watershed for the same pollutant 10

E. No ongoing TMDL in the same segment or contiguous watershed 0

3. Data availability for TMDL development Points

A. Ongoing modeling activities in the segment 10

B. Recent targeted data collection activities within the segment, other than routine

monitoring

10

C. TMDL tools still in development (for example, bacteria source tracking, mercury) -30

4. Local and regional support for TMDL development Points

A. River Authority and/or Council of Government active in current or recent TMDL project 20

B. TSSWCB or other state agency active in current or recent project 20

C. Dedicated regional staff are available in TCEQ region of the project 10

D. Positive stakeholder interest within the segment watershed 10
32 TCEQ/TSSWCB joint publication SFR-68/04

E. Strong opposition to the project -10

5. Year of listing: under the commitment by TCEQ leadership in 1997 to begin

development of TMDLs within 10 years of listing, water bodies listed earlier have a

higher priority. If original listing year is:

Points

A. 1998 50

B. 2000 40

C. 2002 30

D. 2004 20

E. 2006 10

6. Best available funding information, with first priority given to ongoing projects. If

project status is:

Points

A. > 50% complete 50

B. < 50% complete 20

C. New project 0

Total Points Priority

< 80 Low

90-160 Medium

> 160 High

Strategies for Protecting and Improving 

Water Quality 

At all times, the TCEQ is protecting water quality through various

programs. Just the act of monitoring and assessing water quality is a form

of protection, since it informs state officials and the public about the status

of Texas rivers, lakes, and estuaries and about water quality management

needs. More water bodies are being assessed each year, leading to more

timely identification of problems. But much more is being done on a

regular basis—such as issuing permits that limit pollutant discharges to

protect rivers, lakes, and bays, developing plans to protect sources of

drinking water, and educating people about water quality issues. 

The TCEQ’s pace and progress in addressing impairments on the 303(d)

list has risen sharply over the past five years. More TMDLs are being

developed and implemented. The water quality standards were revised in

2000, and numerous analyses are being conducted to determine whether

the currently defined uses are attainable at specific sites. In addition, other

studies are underway to further improve the existing standards. More data

are gathered each year to ensure that we have as sound a basis as possible

for establishing existing and new controls. The TCEQ water quality

programs strive at all times to provide accurate assessment, and to
TCEQ/TSSWCB joint publication SFR-68/04 33

continually improve the tools and information used to manage water

quality. 

Permits to Protect Water Quality

The TCEQ issues permits that control discharges of wastewater into the

surface waters of the state. Many types of discharges are regulated, such

as the effluent from industries, domestic wastewater from city treatment

plants, discharges from certain agricultural operations, and the storm

water that runs off urban areas. The TCEQ also requires pretreatment

permits for some wastewater treatment plants that are publicly owned. 

The owners and operators of these facilities, called dischargers or permittees, are responsible for using the best technologies that are both available

and practical to reduce pollutants in the effluent from their facilities. Many

different kinds of pollutants are regulated by permit, including metals,

pesticides, organic compounds, and treated human waste. Permit limits on

the emission of pollutants into the air may also prevent water pollution,

since pollutants in the air can settle into creeks and lakes. However, this

issue is very complex, and scientists currently do not have a good

understanding of how to control water pollution from air deposition.

The TCEQ works to conserve potable water sources through permits that

regulate the recycling, beneficial reuse, and disposal of sludge. Sludge is

the muddy solid waste produced during the water and sewage treatment

processes. Texas’ federal and state requirements for wastewater and

sludge permitting are codified in the Texas Administrative Code. 

The TCEQ also protects wetlands and other surface waters through its

certification of federal permits that regulate the discharge of dredge or fill

material into the waters of Texas. The state’s certification that federal

dredge and fill activities will not degrade wetlands or other surface waters

is required under Section 401 of the federal Clean Water Act. The U.S.

Army Corps of Engineers issues dredge and fill permits after certification

by the TCEQ.

The TCEQ’s wastewater and sludge permitting activities are required

under Section 402 of the federal Clean Water Act, and implemented

federally through the National Pollutant Discharge Eliminations System.

In 1998, the TCEQ was authorized by the EPA to issue Section 402

permits on behalf of the federal government, with the exception of

discharges associated with oil, gas, and geothermal exploration and

development activities, which are regulated by the Railroad Commission

of Texas. The TCEQ combined its state-issued wastewater permits with

the federal permits that were delegated to it under the Texas Pollutant

Discharge Elimination System. 
34 TCEQ/TSSWCB joint publication SFR-68/04

Protecting Stream Flows

Water availability is an issue in Texas due to the increasing difficulty of

meeting the needs of people, industry, wildlife, and habitats. Across the

state, naturally occurring periods of low water availability are exacerbated

by the increases in human population and in activities that require water. 

According to the State Water Plan published by the TWDB, the total

demand for water is expected to increase 18 percent from 2000 to 2050.

The availability of water in streams is an issue of quality as well as

quantity. Insufficient water flows in streams can affect the quality of the

aquatic environment, or can reduce a stream’s capacity to assimilate

wastewater discharges. It can also limit the flows of fresh water into

downstream estuaries, which are dependent on fresh water for their

ecological health and fisheries uses.

The TCEQ cooperates with the TPWD and the TWDB to collect instream

flow data collection and analyze and evaluate the information to determine

the flow conditions necessary to support a sound ecological environment. 

The TCEQ also conducts environmental reviews of water rights

applications to assess the possible impacts of granting of a water right on

fish and wildlife habitat, water quality and the instream uses associated

with the affected body of water. Possible impacts to bays and estuaries are

also addressed for those permits within 200 miles of the Gulf of Mexico.

The monitoring of stream flows and protection of instream uses is required

and authorized under TCEQ rules, and by Texas House and Senate bills.

Protecting Sources of Drinking Water

The aquifers, lakes, and rivers that are designated by law for use as

sources of drinking water are called source waters. The TCEQ protects

source waters by:

! assessing their susceptibility to pollution.

! assisting local communities to develop source water

protection programs. 

A report assessing the vulnerability of each source water is provided to the

operators of systems that supply public drinking water. The assessments

consider the location of pollutant sources, intrinsic characteristics,

contaminant occurrence, well construction, geology, known point sources,

and land uses that occur within the capture zone of groundwater wells and

within the watersheds of surface water intakes. 

The assessments provide the scientific basis for the implementation of

source water protection projects. Water systems are encouraged to take an
TCEQ/TSSWCB joint publication SFR-68/04 35

A water body is called “impaired” if it

does not meet one or more of the

standards established for its use.

For example, a water body may be

designated as impaired for the

aquatic life use if dissolved oxygen

concentrations are chronically low.

The water body may be attaining all

its other uses—as a source for

drinking water, and as a safe place

to fish or swim—but still be

designated as impaired because all

uses are not attained. 

active role in verifying the completeness and accuracy of the data used in

the assessment report. 

Source water protection is a program to prevent

contamination of groundwater or surface water

that is used as a source of public drinking water.

Water suppliers implement source water

protection programs by working cooperatively

with community members and by educating

people about issues that affect their drinking

water. All public water supply systems may

receive assistance in developing plans and

implementation measures free of charge.

Priorities for state assistance with plan

development are set according to the results of

the susceptibility assessments.

The protection and assessment of source waters is required and authorized

under Section 1453 of the federal Safe Drinking Water Act.

Watershed Protection Plans

Watershed protection plans may be developed to protect high-quality

waters, to address threatened waters before they become impaired, or to

restore water bodies for which TMDLs are not planned or developed.

These plans are still based on environmental targets, usually maintaining

the applicable water quality standards. The types of goals and strategies

that may be used in watershed protection plans are outlined in the EPA’s

guidance for federal nonpoint source grants authorized under Section 319

of the Clean Water Act.

Watershed protection plans: 

! describe the sources of pollution affecting a particular

water body.

! define the actions needed to reduce pollution or restore

water quality, both regulatory and voluntary.

! are developed in cooperation with regional and local

stakeholders. 

Watershed protection plans provide the opportunity to improve and

protect water quality so that potential problems are addressed before the

stream, lake, or bay actually fails to meet water quality standards. 

Implementing Plans to Restore Water Quality

After a water body is listed in Category 5 [the 303(d) list], several

different courses may be pursued to bring it into compliance with the

standards. Further evaluation may be necessary to determine if the current
36 TCEQ/TSSWCB joint publication SFR-68/04

standard is appropriate, or to determine the cause of the impairment. The

TCEQ may begin a project to reduce pollution and restore the impaired

use under its Total Maximum Daily Load (TMDL) Program. The TCEQ

undertakes new projects to restore water quality with each new

assessment, while continuing to complete and implement plans for waters

listed in previous years. 

For water bodies that are impaired due wholly or in part to nonpoint

source (NPS) pollution, federal grant funds provided under Section 319 of

the Clean Water Act play a key role in implementing restoration projects.

These grants provide support for management practices that improve the

quality of impaired or threatened waters, and are often used to support

development and implementation of TMDLs. NPS grants are also used to

implement watershed protection plans that are not associated with

TMDLs; to conduct special projects that assess impacts due to NPS

pollution; and to prevent the degradation of healthy rivers, lakes, and bays.

Standards Analysis 

Water bodies are placed in Category 5b if there is reason to believe that

one or more of the assigned standards may be inappropriate because of

local conditions that are not due to human impacts. Waters in this category

are slated for an analysis of their standards, called a use attainability

analysis, or UAA. 

For example, to determine appropriate aquatic life uses and related

dissolved oxygen criteria, a UAA may consider aspects such as regularity

of flow, habitat structure, typical water chemistry, and fish and other

aquatic organisms that are characteristic in the area. Some rivers and lakes

naturally support an abundant and diverse aquatic community, while other

water bodies—such as small streams with intermittent flow—tend to have

fewer types and total numbers of aquatic organisms. In addition, some

water bodies might support a diverse aquatic community and fishery even

though some components of their overall water quality are not superior

under natural conditions. 

Depending on the results of the UAA, uses and/or supporting criteria may

be revised to be more or less stringent. Revisions of the standards are

reviewed by the public, adopted by the Commission, and approved by the

EPA. When a review and any resulting revisions of the standard are

completed, the water body may be moved to another subcategory of the

303(d) List, or to another category of the Inventory. 

Targeted for Monitoring and Additional Assessment 

Water bodies in Category 5c are targeted for additional monitoring and

assessment. Water bodies may be placed in this category when there is

insufficient information to determine the best course of action. The TCEQ

and its monitoring partners collect the additional data and information
TCEQ/TSSWCB joint publication SFR-68/04 37

TMDL Implementation Plans (IPs) and

Watershed Protection Plans (WPPs)

Both IPs and WPPs have the same goal —

improving water quality in rivers, lakes, or bays.

‘ How they differ:

T IPs are remedial actions for impaired

waters; WPPs may be either remedial

or preventive.

T IPs are based on total maximum daily

loads; WPPs use other measurable

environmental goals for water quality.

‘ How they are alike:

T Define actions needed to reduce

pollution and restore water quality.

T Include both regulatory and voluntary

actions.

T Are developed in cooperation with

regional and local stakeholders.

T Are based on the best available

scientific methods and tools. 

needed to determine if a standards review is appropriate, if a TMDL

should be scheduled, or, more rarely, to determine the degree and

geographic extent of nonsupport. Depending on the results, the water body

may be moved to another subcategory of the 303(d) List, or to Category 1

or 2. 

TMDLs and Implementation Plans 

TMDLs and their implementation plans are developed to address water

bodies listed in Category 5a. States must establish a TMDL for each

impairment in each water body in Category 5a. This may mean that

several TMDLs may be developed for one river or lake. A TMDL must

also allocate this load to the point and nonpoint sources of pollution in the

watershed. The state must then develop an implementation plan to achieve

the loading allocations defined in the TMDL. TMDLs are subject to EPA

approval; implementation plans are not. 

Total Maximum Daily Loads 

In order to restore water quality, it is first necessary to be reasonably

certain of the sources and causes of pollution. One way to accomplish this

is to develop a scientific model called a total maximum daily load

(TMDL). 

A TMDL: 

! determines the maximum

amount of a pollutant that a

water body can receive and

still both attain and maintain

its water quality standards;

and 

! allocates this allowable

amount (load) to point and

nonpoint sources in the

watershed. 

TMDLs must be submitted to the

Environmental Protection Agency

(EPA) for review and approval. A

TMDL is normally prepared for each

pollutant in each impaired water body.

In general, a TMDL should be

completed within 13 years of the initial

listing of a water body.

Implementation Plans

After a TMDL is completed, an implementation plan is developed that

describes the regulatory and voluntary activities necessary to achieve the
38 TCEQ/TSSWCB joint publication SFR-68/04

pollutant reductions identified in the TMDL. Management activities

incorporate both nonregulatory and regulatory mechanisms, such as permit

effluent limits and recommendations, nonpoint source pollution

management practices, stream standard revisions, special projects,

pollution prevention, public education, and watershed- specific rule

recommendations. The best strategies for each individual watershed are

developed in cooperation with regional and local stakeholders. 

The implementation plan describes these various activities, the schedule

for implementing them, and the legal authority for the regulatory

measures. It also provides reasonable assurance that the voluntary

practices will be undertaken. For instance, the plan may identify grant

funds that have been secured to implement voluntary actions. The plan

also includes the measurable results that will be achieved through the plan,

along with a follow-up monitoring plan to determine its success. The

ultimate goal is always the attainment of the water quality standard, but

additional, interim results may be evaluated to assess progress toward that

goal. 

Even after plans are fully implemented, it is difficult to accurately predict

how long it will take for improvements to occur in the stream, or how

much improvement will be seen. For this reason, there is a schedule for

phasing in implementation activities, especially those that address nonpoint sources of pollution. Less expensive, time-tested activities are

implemented first, and their impacts are assessed. If water quality

standards are not yet achieved, then another set of regulatory and/or

nonregulatory activities is implemented. Through this adaptive

management approach, the water body is reassessed, and adjustments are

made in the implementation activities as needed to attain water quality

standards in the stream.

A Joint Effort—Stakeholder Involvement

Stakeholders are involved in each of the water quality management cycle

through participation in standing and special committees. 

The TCEQ is designated by law as the lead state agency for water quality

in Texas. The Texas State Soil and Water Conservation Board (TSSWCB)

also plays an important role as the lead agency in the state for the

management of agricultural and silvicultural (forestry) nonpoint source

runoff. The Texas Clean Rivers Program—a partnership of regional water

management authorities—plays a key role in providing forums for

stakeholder involvement and coordinating water quality management

activities (see Figure 3.1 - Major River Basins and Planning Areas in

Texas). 

Many other local, regional, state, and federal agencies have specific

responsibilities that are critical to the restoration of polluted water bodies.
TCEQ/TSSWCB joint publication SFR-68/04 39

Nongovernment organizations, especially at the watershed level, can

provide information about local concerns and infrastructure, and can help

build support for the kind of pollution controls that may be required to

restore water quality.

A coalition of government agencies and citizens is necessary to develop

and implement water quality protection and restoration strategies. Public

participation in watershed protection plans and TMDL implementation

plans provides the following benefits:

! improves the quality and increases the quantity of

information used as the basis for plans, 

! promotes government accountability, 

! ensures that state government considers the local

perspective in its decisions, 

! helps stakeholders gain insight into the nature of water

quality problems and alternate solutions in their

communities, 

! leads to voluntary individual actions to curb pollution, and

! local ownership of water quality.

Who Are Stakeholders?

Stakeholders include all individuals or organizations in the watershed who

have one or more of these attributes:

! are significant contributors of pollutant loadings or other

impacts to water quality;

! are significantly affected by water quality problems;

! are directly affected by project outcomes or decisions;

! may be required to undertake control measures because of

statutory or regulatory requirements;

! have statutory or regulatory responsibilities closely linked

to water quality—for example, flood control;

! can help develop or implement actions to remedy water

quality problems;

! live in the watershed or use the water resource.

Although not an exhaustive list of possible stakeholders, these categories

give some examples of the kinds of groups and people who may become

involved in protecting and restoring water resources:
40 TCEQ/TSSWCB joint publication SFR-68/04

 Figure 3.3 Stakeholder Forums

! Wastewater dischargers–municipal and industrial.

! Public–individuals; civic groups such as those representing

environmental, consumer,

recreational, and

community interests;

schools, universities, and

private landowners.

! Agriculture and

aquaculture – corporate

and individual farmers,

ranchers, and producers;

subsistence and

commercial harvesters

of fish and shellfish;

agricultural groups and

organizations.

! Business –commercial,

residential, and

industrial firms;

utilities, business

groups, and trade

associations.

! Government–city,

county, regional, state,

federal, and

international

government agencies,

tribes, utility districts,

and river authorities.

Coordination of Stakeholders

Coordination of stakeholders takes place at three levels (see Figure 3.3 -

Stakeholder Forums):

! statewide for agencies and organizations that conduct water

quality management activities across the entire state, to

target and synchronize their efforts.

! regionally to assess conditions within a basin and establish

basin-specific goals and priorities.

! locally to develop watershed protection plans and TMDL

implementation plans that have local support and input. 
TCEQ/TSSWCB joint publication SFR-68/04 41

Clean Rivers Program Stakeholders Work Group

Comprised of staff from the regional planning agencies of the Clean Rivers Program (CRP), the work group represents stakeholder interests at the

state level. The CRP Stakeholders Work Group coordinates with the

TCEQ and other state agencies at annual meetings. See Figure 1 for a list

of the CRP planning agencies and the regions they manage. 

Basin Steering Committees

Basin steering committees of the Clean Rivers Program provide the

primary forum for coordinating stakeholder involvement at the regional

level. These committees carry out educational activities within the basin,

such as workshops and volunteer programs. They also produce public

information products and conduct promotional campaigns through various

media. 

Local Watershed Work Groups

These work groups, comprised of key stakeholders in priority watersheds,

provide valuable input about local conditions. They develop site-specific

strategies for developing watershed protection plans or TMDL

implementation plans.

Education

The TCEQ has numerous projects and programs to inform the public and

their representatives about issues that affect water quality and ways

individuals and regulated organizations can act to protect and improve the

environment. These programs range from technical assistance to business

owners to ad campaigns to formation of stakeholder groups to advise the

agency. 

Education is integrated into most water quality programs at the TCEQ.

Educational activities may include presentations to stakeholder groups,

forums to share pollution reduction technologies, public awareness

campaigns, or distribution of educational materials to schools and

volunteer groups.

GAUGING SUCCESS

Success of the state’s water quality management program is gauged by

progress made toward protecting or restoring water quality uses that

benefit wildlife, people, and the environment. Some of the reports of

success that the TCEQ is charged with producing include:

# progress report on environmental and program goals for the

Texas Legislative Budget Board 

# biennial reports to the Texas Legislature
42 TCEQ/TSSWCB joint publication SFR-68/04

# annual reports of TMDL implementation and nonpoint source

management activities

# the Texas Water Quality Inventory and 303(d) List.

With the exception of the report to the Legislative Budget Board, these

documents are available on the TCEQ’s Web site at www.tceq.state.tx.us.

Making successful management decisions depends on understanding the

relationships among water quality, water use, and conditions within a

watershed. With the watershed approach, Texas integrates policy, science,

and people to ensure clean water for years to come. 
TCEQ/TSSWCB joint publication SFR-68/04 43

Chapter 4 Coordination

The State of Texas Nonpoint Source Program envisions a partnership

among many organizations, both public and private, to protect and restore

water quality. With the extent and variety of water quality issues across

Texas, the need for cooperation at all levels is essential. Surface water

bodies and aquifers are not limited by political boundaries and therefore

environmental solutions often cross federal, state, and local levels of

responsibility. By establishing a coordinated framework to share

information and resources, while minimizing unnecessary duplication, the

State can more effectively focus its water quality protection efforts.

Chapters 6, 7, and 8 describe the programs and best management practices

that are implemented to address NPS pollution. This chapter provides a

description of the agencies and organizations that implement the tools

described in Chapters 5, 6, and 7 to protect and restore water quality.

Interstate and International Coordination

The State of Texas coordinates with neighboring U. S. states and Mexico

in protecting water resources in those watersheds or aquifers which cross

political boundaries. Cooperation is multidimensional, involving

governments at every level; voluntary, non-governmental organizations;

private businesses; and the public. A number of programs and activities

are in place to facilitate collaboration between jurisdictions.

Interstate Coordination

The TCEQ and TSSWCB are involved in interstate coordination of water

resource protection activities through membership in national

organizations such as American Water Works Association (AWWA),

Association of State Drinking Water Administrators (ASDWA),

Association for State and Interstate Water Pollution Control

Administrators (ASIWPCA), Council of State Governments (CSG),

National Association of State Conservation Agencies (NASCA), National

Association of Conservation Districts (NACD), and the Ground Water

Protection Council (GWPC).

The TCEQ and TSSWCB, working through EPA Region 6, coordinate

with the states of Arkansas, Louisiana, New Mexico, and Oklahoma

through scheduled State-EPA meetings and conferences. These gatherings

provide a forum for information exchange and discussions on the future

direction and implementation of the Nonpoint Source Program.

International Coordination

At the international level, the Border Environment Cooperation

Commission and the North American Development Bank work with states

and communities to develop needed water and waste infrastructure
44 TCEQ/TSSWCB joint publication SFR-68/04

projects. In addition, Texas is one of the participants in the Ten State

Initiative, which brings together environmental representatives from the

U.S. and Mexican border states to discuss and act on environmental

priorities.

As a result of that commitment, the TCEQ has implemented State-to-State

Strategic Environmental Plans with the environmental agencies of each of

Texas' four neighboring Mexican states (Tamaulipas, Nuevo León,

Coahuila, and Chihuahua). A variety of programs has evolved from the

communication brought about by these plans, including industry

recognition and pollution prevention programs, as well as a Border

Recycles Day.

The need to engage on a broad set of environmental issues resulted in the

signing by the U.S. and Mexico of the La Paz Agreement in 1983. Ten

years later, the North American Free Trade Agreement (NAFTA) further

reinforced ties between the U.S. and Mexico. It included environmental

side agreements that established both trilateral and binational entities to

address environmental issues.

Various state agencies in Texas have developed programs that have an

important effect on the border. Some, such as the Texas Water

Development Board's Economically Distressed Areas Program, help

communities plan and develop needed infrastructure. The programs

discussed below are designed to improve the environment of the border

region. 

TCEQ Border Affairs Program 

The TCEQ Border Affairs Program works closely with TCEQ regional

offices in Laredo, Harlingen, El Paso, and San Antonio to resolve

concerns for border residents. As an information clearinghouse, the group

has daily contact with government officials on both sides of the border.

Border Affairs has helped foster cross-border environmental agreements

and programs with Mexican counterparts at the local, state, and federal

levels and with stakeholders in the private sector and non-governmental

organizations. The group has worked on environmental infrastructure

matters with the Border Environment Cooperation Commission and the

North American Development Bank.

Border 2012 Program

The U.S. Environmental Protection Agency, its Mexican counterpart, the

Secretaría de Medio Ambiente y Recursos Naturales (SEMARNAT), the

U.S. and Mexican border states, and U.S. border tribes, have developed

the Border 2012 program to protect the environment and public health in

the border region. The program focuses on decreasing pollution and

lowering the risks of exposure to pesticides and other chemicals. The goal

of the program is to achieve measurable improvements in air, water and

soil quality in the border region by the year 2012.
TCEQ/TSSWCB joint publication SFR-68/04 45

The focus of Border 2012 is to address environmental issues at the local

level by decentralizing the decision making and priority setting processes,

with implementation driven by four Regional Workgroups, three

Borderwide Workgroups and three Policy Forums. Regional Workgroups

address environmental issues affecting specific sub-regions. The

border-wide workgroups address binational and transboundary aspects of

environmental health, emergency preparedness and response, and

cooperative enforcement and compliance. Policy Forums focus on broad

issues concerning air and water quality, and the effective management of

hazardous and solid waste and toxic substances. In addition, task forces

will be created, as needed, to implement projects at the local level

consistent with the needs of the region and the goals of the program.

The Rio Grande/Río Bravo Basin Coalition

The Rio Grande/Río Bravo Basin Coalition is a multinational,

multicultural organization with leadership from the U.S., Mexico, and the

Pueblo Nation. Its purpose is to help local communities restore and sustain

the environment, economies, and social well-being of the Rio Grande/Río

Bravo Basin. The coalition has 50 partner organizations from around the

watershed which share a commitment to the health and long-term

sustainability of the Río Grande/Río Bravo Basin. The belief is that

building coalitions across borders is the best way to solve international

environmental problems.

The Coalition organizes the Día del Río citizen-led event. The event is

both a call to action and a celebration of the basin's rich diversity, and it

draws public attention to the critical state of the basin's rivers,

groundwater, and wildlife. Activities focus on raising awareness and

include public talks, tree planting, and river cleanups.

International Boundary and Water Commission

The International Boundary and Water Commission (IBWC) encourages

and coordinates the establishment of cooperative relationships with

federal, state, and local agencies, both in the U.S. and in Mexico, in

carrying out activities along the border. The U.S. and the IBWC may

undertake cooperative projects to implement existing treaties and other

agreements between the two Governments. Projects may originate with

the emergence of an environmental problem requiring the agreement and

cooperation of the two Governments for a solution. Because of the

international nature of the Rio Grande, the State of Texas has contracted

with the U.S. Section of the IBWC to implement the Clean Rivers

Program, including the Friends of the Rio Grande initiative, in its

1,254-mile international boundary section.
46 TCEQ/TSSWCB joint publication SFR-68/04

Federal Agencies

Environmental Protection Agency 

EPA works to develop and enforce regulations that implement

environmental laws enacted by Congress. EPA is responsible for

researching and setting national standards for a variety of environmental

programs, and delegates to states and tribes the responsibility for issuing

permits and for monitoring and enforcing compliance. While EPA protects

the nation's natural resources primarily through regulation, EPA has also

developed a wide variety of funding, planning, and education programs

that are effective in protecting environmental quality. 

U.S. Geological Survey

The U.S. Geological Survey (USGS) has the principal responsibility

within the Federal Government to provide the hydrologic information and

understanding needed by others to achieve the best use and management

of the Nation's water resources. Through the National Water Quality

Assessment Program (NAWQA), USGS scientists collect and interpret

data about water chemistry, hydrology, land use, stream habitat, and

aquatic life. The NAWQA Program is a primary source for long-term,

nationwide information on the quality of streams, groundwater, and

aquatic ecosystems. This information supports national, regional, State,

and local decision making and policy formation for water-quality

management. The goals of NAWQA are to assess the status and trends of

national water quality and to understand the factors that affect it. 

National Oceanic and Atmospheric Administration

Programs work to protect, restore, and responsibly develop the nation's

coastal communities and resources while ensuring their protection for

future generations. 

U.S. Army Corps of Engineers

The U.S. Army Corps of Engineers is a worldwide organization that

provides engineering services, environmental restoration, and construction

support for a wide variety of civil and military projects. The Corps'

primary civil mission is developing and managing the nation's water

resources. The Corps develops projects to reduce flood damage; improves

navigation channels and harbors; protects wetlands; and preserves,

safeguards, and enhances the environment. 

U.S. Coast Guard

The U.S. Coast Guard is a military, multi-mission, maritime service and

one of the nations five Armed Services. Its mission is to protect the public,

the environment, and U.S. economic interests – in the nations ports and
TCEQ/TSSWCB joint publication SFR-68/04 47

waterways, along the coast, on international waters, or in any maritime

region as required to support national security. The Coast Guard addresses

the wide ranging problems associated with preventing, responding to, and

paying for pollution associated with oil spills and leaks. It does so by

creating a comprehensive programs that deal with prevention, response,

liability, and compensation of spills from vessels and facilities in our

navigable waters.

U.S. Department of Agriculture

The U.S. Department of Agriculture (USDA) is committed to helping

America's farmers and ranchers. The USDA is the steward of the nation's

192 million acres of national forests and rangelands. It is the country's

largest conservation agency, encouraging voluntary efforts to protect soil,

water, and wildlife on the 70 percent of America's lands that are in private

hands. USDA is a research leader in everything from human nutrition to

new crop technologies that allow us to grow more food and fiber using

less water and pesticides.

USDA-Natural Resource Conservation Service

The mission of the Natural Resources Conservation Service (NRCS) is to

provide technical and financial assistance to landowners and operators on

soil and water conservation matters. Work is directed through local soil

and water conservation districts in Texas, according to the terms of

memoranda of understanding with each district.

USDA-Farm Services Agency

The principal mission of the Farm Services Agency (FSA) includes

stabilizing farm income, helping farmers conserve land and water

resources, providing credit to new or disadvantaged farmers and ranchers,

and helping farm operations recover from the effects of disaster. Many of

the FSA operated programs are funded through the Commodity Credit

Corporation (CCC), a government owned and operated corporation

established in 1933.

USDA-Agricultural Research Service

The Agricultural Research Service (ARS) is the principal in-house

research agency of the U.S. Department of Agriculture (USDA). ARS

conducts research to develop and transfer solutions to agricultural

problems of high national priority. Two of the twenty-two ARS National

Programs, Water Quality and Management and Soil Resource

Management, are strongly committed to applied nonpoint source pollution

research as part of their mission to increase understanding and develop

solutions to protect the Nation's soil and water resources. In Texas, ARS is

conducting ongoing research on nonpoint source related issues such as: 

land application of municipal and agricultural wastes; improved

management of soil, water, nutrients, and chemicals in agricultural

production systems; and enhanced simulation tools for water quality,
48 TCEQ/TSSWCB joint publication SFR-68/04

hydrology, and crop growth. ARS research, conducted by laboratories

throughout the state, is often carried out in cooperation with universities,

state research and extension centers, and private organizations.

USDA-Forest Service

Congress established the Forest Service in 1905 to provide quality water

and timber for the Nation's benefit. Main activities include (1) protection

and management of natural resources on National Forest System lands, (2)

research on all aspects of forestry, rangeland management, and forest

resource utilization (3) community assistance and cooperation with State

and local governments, forest industries, and private landowners to help

protect and manage Non-Federal forest and associated range and

watershed lands to improve conditions in rural areas. The Forest Service is

also the largest forestry research organization in the world, and provides

technical and financial assistance to state and private forestry agencies.

State Agencies

Texas State Soil and Water Conservation Board

The Texas State Soil and Water Conservation Board (TSSWCB) is the

lead agency in Texas for activity relating to abating agricultural and

silvicultural nonpoint source pollution. As the lead agency, the TSSWCB

is mandated to: 1) plan, implement, and manage programs and practices

for abating agricultural and silvicultural nonpoint source pollution; 2)

administer a Technical Assistance Program for Soil and Water

Conservation Land Improvement Measures; and 3) administer a CostShare Assistance Program for Soil and Water Conservation Land

Improvement Measures. The TSSWCB meets these mandates by working

with local soil and water conservation districts to administer its TMDL

Program, 319(h) Grant Program, Conservation Planning Programs (i.e.

Water Quality Management Plan and Comprehensive Nutrient

Management Plan Programs), NPS compliant resolution process, Poultry

Initiative, and involvement in the implementation of the Coastal

Management Plan. 

Texas Commission on Environmental Quality

The Texas Commission on Environmental Quality (TCEQ) strives to

protect the state's human and natural resources consistent with sustainable

economic development. The TCEQ implements many sections of the

Texas Water Code, federal Clean Water Act, and Safe Drinking Water

Act. The TCEQ develops water quality requirements designed to protect

attainable uses and to maintain the quality of waters in the state. The

TCEQ has a number of programs that address various aspects of nonpoint

source pollution management through planning, the setting of standards,
TCEQ/TSSWCB joint publication SFR-68/04 49

data collection, assessment, targeting and prioritization, and

implementation. 

Texas Water Development Board

The Texas Water Development Board (TWDB) is responsible for

long-term water planning and financing water-related development for the

state. Its duties include the preparation and update of the State Water Plan,

collection and maintenance of water data, and administration of various

funds designed to help finance state and local water-related projects.

Texas Parks and Wildlife Department

The Texas Parks and Wildlife Department's (TPWD's) primary functions

are to manage and conserve the natural and cultural resources of Texas

and to provide hunting, fishing and outdoor recreation opportunities.

To this end, TPWD operates and maintains a system of public lands,

including state parks, historic sites, fish hatcheries and wildlife

management areas; monitors conserves and enhances the quality of public

and private lands, rivers, streams, lakes, coastal marshes, bays, beaches,

and Gulf waters; manages and regulates fishing, hunting and boating

activities; assists public and private entities in providing outdoor

recreational opportunities; conducts education and outreach events and

programs; and cooperates with other governmental entities in these areas.

TPWD's efforts focus on programs that affect habitat, in the belief that

preservation and creation of appropriate habitat will result in the

protection of fish, wildlife, and recreation. 

Texas Agricultural Experiment Station

The Texas Agricultural Experiment Station (TAES) is the official state

agricultural research agency in Texas. It is administered by the Board of

Regents of the Texas A&M University System. The TAES cooperates

with other state and federal agencies and colleges and universities in

planning and conducting agricultural research. Programs of the TAES are

designed to provide the scientific base to develop the full agricultural

potential of Texas and improve the utilization and conservation of natural

resources.

Texas Department of Agriculture

The Texas Department of Agriculture (TDA) is the State's lead regulatory

agency for agricultural pesticide regulation. The Texas Pesticide and

Herbicide Laws grant TDA the authority to enforce the provisions of the

law pertaining to the registration, distribution, and use of all agricultural

pesticides. TDA is responsible for licensing all agricultural pesticide

applicators and the labeling, storage, sales, usage, and disposal of all

pesticides. TDA also cooperates with other state agencies that have

statutory pesticide responsibilities, such as the TCEQ, the Structural Pest
50 TCEQ/TSSWCB joint publication SFR-68/04

Control Board, and the DSHS. TDA is also responsible for the

enforcement of federal pesticide laws under a cooperative agreement with

the EPA.

Texas Institute for Applied Environmental Research

The Texas Institute for Applied Environmental Research (TIAER) was

established as part of the Texas A&M System in 1992. The first mandate

in its enabling legislation is to conduct applied research on environmental

issues that have public policy implications. The legislation also calls for

TIAER to provide national leadership on emerging environmental policy

and to provide a setting for environmental studies on the interface between

government and the private sector. Establishing interdisciplinary programs

or partnerships to develop and implement new policies, technologies,

strategies, and relationships is another TIAER mandate.

The TIAER goal is to impact state and national environmental policy. A

principal that is fundamental to this goal is that improvements in the

environment are best accomplished not by simply conducting scientific

research, but by using research results to formulate policy

recommendations that will actually be implemented by government and

other institutions. TIAER seeks to use cutting-edge strategies and

technologies to assist developers and implementers of environmental

policy. Partnerships with other universities and state agencies are integral

aspects of Institute work. These partnerships build on the strengths of each

entity to produce an effective, efficient program.

Texas Water Resources Institute

The Texas Water Resources Institute is a unit of the Texas Agricultural

Experiment Station and Texas Cooperative Extension. It is part of a

national network of institutes created by the Water Resources Research

Act of 1964. The Institute is funded by the United States Geological

Survey and is affiliated with the National Institutes for Water Research. 

The Texas Water Resources Institute serves as a focal point for

water-related research at Texas universities, encouraging discussion of

statewide issues through meetings and multi-university studies. The

Institute links academic expertise with state and federal agencies,

strengthening water research and education. Additionally, the Institute

provides leadership for water resources programs through grant

administration, pre-award services, project management, communications,

and facilitation of interagency collaboration.

Texas Forest Service

The Texas Forest Service (TFS), a member of the Texas A&M University

System, provides statewide leadership and professional assistance to
TCEQ/TSSWCB joint publication SFR-68/04 51

assure that the state's forest, tree, and related natural resources are wisely

used, nurtured, protected, and perpetuated for the benefit of all Texans.

Texas Cooperative Extension

The Texas Cooperative Extension (TCE) is a partnership between the

USDA, Texas A&M University, and County Commissioners Courts. The

basic mission of the TCE is education and dissemination of information

relating to agriculture, home economics/consumer sciences, community

development, and 4-H/youth. County Extension Agents deliver most of

the educational programs of the TCE. These county agents, supported by

specialists based at College Station and 12 regional centers throughout

Texas, provide technical information and respond to individual problems

1and questions, conduct educational meetings, and establish and evaluate

demonstrations to show the benefits of using practices based on the latest

scientific research. They also provide educational information through

radio and television programs, newspapers, newsletters, and bulletins.

Water quality and conservation is one of six major program issues being

addressed by agents and specialists on an interdisciplinary basis.

Texas Department of Licensing and Regulation

The Texas Department of Licensing and Regulation (TDLR) is the

primary state agency responsible for the oversight of businesses,

industries, general trades, and occupations that are regulated by the state

and assigned to the department by the legislature. TDLR ensures public

safety and welfare in many diverse areas. Issuing licenses, conducting

inspections, investigating complaints, issuing penalties, setting rules and

standards, and holding hearings, names just a few of the agency's

activities. The TDLR activities as they relate to occupational certifications

ensures that environmental professionals operate in compliance with

federal and state laws and regulations. 

Texas General Land Office

The Texas General Land Office (GLO) is the state agency responsible for

the management of state-owned public lands not specifically purchased by

or deeded to other agencies. The GLO is a proprietary state agency. The

GLO is also the state's lead agency for coordinating the Coastal

Management Plan designed to help preserve public beach access, protect

coastal wetlands and other coastal natural resources, and respond to beach

erosion along the Texas coast.

Railroad Commission of Texas

The Railroad Commission of Texas (RRC) is the state agency with

primary regulatory jurisdiction over the oil and natural gas industry,

pipeline transporters, natural gas utilities, rail safety matters, and surface

mining operations. The main functions of the RRC are to protect the

environment, protect public safety, protect the correlative rights of mineral
52 TCEQ/TSSWCB joint publication SFR-68/04

interest owners, prevent waste of natural resources, and assure fair and

equitable utility rates in those industries over which it has been granted

authority.

Texas Department of Transportation

The Texas Department of Transportation (TxDOT) is the lead state agency

for construction and maintenance of state roads, which includes

responsibility for the management of road and highway nonpoint sources

of pollution. The goal of TxDOT as it relates to nonpoint source pollution,

is to prevent the degradation of receiving waters due to storm water runoff

from highway operations. TxDOT has developed a comprehensive storm

water management program aimed at achieving this goal. 

Texas Department of State Health Services

The Texas Department of State Health Services (DSHS) is the lead agency

to protect, promote, and improve the health of the people of Texas. DSHS

administers several programs that support public health and 

environmental programs. The Environmental Sciences Branch provides

analytical chemistry laboratory support to the EPA Safe Drinking Water

Program and analyzes fish and shellfish from Texas coastal waters, inland

lakes, and rivers for organic chemicals and toxic metals. The Division for

Regulatory Services-Seafood and Aquatic Life Group protects consumers

of fish and shellfish from disease or other health hazards transmissible by

these products produced in or imported into Texas. The Seafood and

Aquatic Life Group also protects the recreational fishers from disease or

contaminants found in fish and other aquatic species caught in Texas'

lakes, rivers, bays or nearshore State waters. 

Interagency Agreements 

Maximizing the utilization of local, state and federal resources is essential

if limited resources are to be effective. Texas has implemented a variety of

mechanisms to ensure and improve coordination among and between

Federal, State, and local officials for addressing water quality. A list of

some of the agreements and strategic partnerships is provided below.
TCEQ/TSSWCB joint publication SFR-68/04 53

Table 4.1 Federal, State, and Local Agreements to Facilitate Cooperation on NPS Issues

Cooperative Entities Type of Agreement Purpose of Agreement

TCEQ and TSSWCB Memorandum of

Understanding

Facilitate cooperation between the two

primary Texas NPS control agencies in

achieving program goals.

TCEQ and TSSWCB Memorandum of

Agreement

Sets for the cooperating responsibility and

authority regarding development of total

maximum daily loads (TMDLs).

TSSWCB and Texas A&M

University System

Memorandum of

Understanding

Establishes commitments to work together to

accomplish statewide NPS pollution

reduction goals with the state’s agricultural

and silvicultural producers. TAES will

conduct soil and water conservation and

nonpoint source management demonstrations

and related educational activities, and TAES

will cooperate with TSSWCB and SWCDs

to identify research needs relative to soil and

water conservation and nonpoint source

management.

TCEQ and RRC Memorandum of

Understanding

Clarifies the division of jurisdiction between

TCEQ and RRC with regards to wastes

generated in connection with oil and gas

exploration, development, and production

activities.

TCEQ and GLO Memorandum of

Understanding

Sets forth the mutual coordination of

program responsibility and procedural

mechanisms for the Galveston Bay Estuary

Program to address threats arising from

pollution, development, and overuse, and

enhancing ecosystems-based management of

Galveston Bay.

TCEQ with other state

agencies: TPWD, DSHS,

TWDB, Tx A&M

University System

Memorandum of

Agreement

Establishes agreements with key state and

federal partners to set priorities, achieve

water quality goals, and plan and implement

watershed projects to protect and restore

NPS-impacted water bodies.

USDA-NRCS with local

Soil and Water

Conservation Districts 

Memorandum of

Agreement

Sets forth the cooperation for SWCDs to

furnish technical assistance to farmers and

ranchers in the preparation of soil and water

conservation plans.

TCEQ and TWDB Memorandum of

Agreement

Sets forth the cooperation, responsibility and

authority regarding the development of

TMDLs.

TCEQ and TDA Memorandum of

Agreement

Sets forth the cooperation, responsibility and

authority regarding the development of

TMDLs.

TCEQ and TAES, TCE

and TFS

Memorandum of

Agreement

Sets forth the cooperation, responsibility and

authority regarding the development of

TMDLs.
54 TCEQ/TSSWCB joint publication SFR-68/04

TSSWCB and USDAForest ServiceMemorandum of

Understanding

Sets forth the responsibilities and activities

to be performed by each agency in carrying

out the State Water Quality Management

Plan and Nonpoint Source Management

Program as related to activities on National

Forest System Lands.

TPWD and TxDOT Memorandum of

Understanding

Provides a formal mechanism by which the

TPWD may review TxDOT transportation

 projects, including those that have the

potential to affect natural resources and to

promote the mutually beneficial sharing of

information which will assist TxDOT in

making environmentally sound decisions.

TCEQ and U. S. Coast

Guard

Memorandum of

Agreement

Outlines the responsibilities for the recovery

of abandoned sealed containers on Texas

beaches for pollution prevention and

response.

GLO and U.S. Coast

Guard

Memorandum of

Agreement

Provides for agreement to cooperate and to

coordinate efforts in implementing and

exercising their respective statutory and

regulatory duties related to pollution

prevention and response.

Stakeholder Involvement

In order to achieve water quality goals, including those discussed in this

Management Program, the State of Texas enlists the cooperation of

affected entities, or stakeholders, to solicit input, assistance and

cooperation in developing and implementing solutions. Within a particular

watershed, stakeholders may include individuals and civic groups, farmers

and ranchers, local industry, environmental organizations, wastewater

dischargers, as well as local, state, and federal government entities.

Coordinated Monitoring 

The development of the annual coordinated monitoring schedule is an

exceptional example of stakeholder involvement. Monitoring priorities

and issues are discussed among state, federal, regional, and local

governmental entities as well as other interested parties and the public.

The implementation of coordinated statewide monitoring is a priority of

the TCEQ and the Clean Rivers Program (CRP) to minimize duplication

of effort, improve spatial coverage of monitoring sites, and improve

consistency of parametric coverages (parametric coverages typically

include field measurements, flow measurements, routine water chemistry,

and fecal coliform analysis). 

At least one meeting is held in each major river basin, hosted by the CRP

planning agency, during the spring of each year. The purpose of the

meeting is to develop a coordinated basin-wide monitoring schedule. All
TCEQ/TSSWCB joint publication SFR-68/04 55

water quality monitoring groups that collect Surface Water Quality

Monitoring data and commit to comply with TCEQ requirements for

collecting quality-assured data are invited to participate. New sites are

added, existing sites may be relocated, and parametric coverages may be

changed based on the discussions at the meetings.

The preliminary basin-wide monitoring schedules developed at the

coordinated monitoring meetings are reviewed by the CRP planning

agencies, CRP stakeholders, and TCEQ staff to ensure that proposed

revisions to monitoring locations and parametric coverages are

appropriate. After review, a statewide coordinated schedule is posted on

the internet developed and maintained under contract by the Lower

Colorado River Authority at: http://cms.lcra.org/

Stakeholder Groups

National Natural Resources Conservation Foundation

The National Natural Resources Conservation Foundation (NNRCF)

promotes innovative solutions to natural resource problems and conducts

research and educational activities to support conservation on private land.

The NNRCF is a private, nonprofit corporation. The foundation builds

partnerships among agencies and agricultural, public, and private

constituencies interested in promoting voluntary conservation on private

lands.

Texas Forestry Association

The Texas Forestry Association (TFA) is a tax-exempt, non-profit

organization which serves as the voice of the forest industry in eastern

Texas. Within the TFA, information and training are provided for both the

logger and the landowner through the work of various committees. The

TFA provides an excellent avenue for reaching those who own and

manage forest resources and those employed in the forest industry.

Members of TFA are committed to carrying out programs in water quality,

education, and the continued production of forest resources.

Clean Rivers Program Stakeholder Workgroup

The Stakeholder Workgroup meets annually to ensure the Clean Rivers

Program is functioning in a manner that considers the needs of all

stakeholders. Representatives from government, industry, business,

agriculture, and environmental interest groups participate in the

Workgroup. Surface water quality issues are discussed, and decisions are

made through a consensus-based approach.

The Stakeholder Workgroup was originally formed solely as an advisory

group for the Clean Rivers Program. However, in recent years the
56 TCEQ/TSSWCB joint publication SFR-68/04

Workgroup’s scope and membership has been expanded to include input

on the focus, goals, and functionality of the Nonpoint Source Management

Program, the Total Maximum Daily Load Program, and the Surface Water

Quality Monitoring Program. The group also works with the TCEQ on

setting priorities for addressing water quality problems related to both

point and nonpoint sources.

Clean Rivers Program Basin Steering Committees

CRP Basin Steering Committees meet at least annually in each of Texas'

major river basins. The purpose of these meetings is for the CRP Planning

Agency to present water quality issues for the basin and request input

from the local citizens and stakeholders in identifying potential sources of

pollution and setting local priorities. In addition, the meeting provides a

way for state agency representatives to communicate statewide NPS goals

to stakeholders at the local level. The CRP Planning Agency responsible

for monitoring and assessing water quality for each basin plans and

conducts the meeting. Basin Status Reports prepared by the CRP Planning

Agencies outline recommended actions for nonpoint source pollution

management and other water quality issues in each river basin.

Local Watershed Action Committees

Throughout the Total Maximum Daily Load (TMDL) development

process, stakeholder work groups or existing community forums are used

to obtain public input toward project design, sampling, load allocations,

and options for implementation measures. After a TMDL has been

established for a particular water body, the TCEQ develops an

implementation plan with the participation of local stakeholders,

describing the voluntary and regulatory measures needed to achieve

reduction of the pollutants addressed in the TMDL. 

NPS Stakeholders Forum

The TCEQ and the TSSWCB established a statewide stakeholder

workgroup comprised of CRP Stakeholders and other state and local

entities with an interest in NPS management. The NPS Stakeholders

Forum provides TSSWCB and TCEQ an opportunity to seek input and

feedback on the State’s NPS management programs and activities. The

NPS Stakeholders Forum meets at least annually. The TSSWCB and

TCEQ NPS and CRP programs coordinate meetings of this group as

needed. The meetings provide an opportunity for the NPS program to

provide information about NPS management and the 319 program to state

and local government entities for implementation of the goals and

milestones of the NPS Management Program.
TCEQ/TSSWCB joint publication SFR-68/04 57

Texas Watershed Protection Committee

In 1997 the Texas Watershed Protection Committee (TWPC) was formed

for the purpose of coordinating actions on numerous atrazine detects

found in surface water bodies that were sources of public drinking water.

The TWPC is informal in that its existence is not mandated by any state

law or regulation; however, it meets an important need for coordinating

responses to pesticide contamination of surface water. As well as

coordinating general activities aimed at preventing contamination, the

TWPC actively seeks and identifies opportunities to improve existing

surface water quality programs and promotes coordination between

agricultural and surface water related agencies. Response to pesticide

contamination is coordinated through the TWPC. Information is provided

to the TWPC upon detection of pesticide contamination in surface water

for evaluation and recommendations. Response to pesticide contamination

in surface water falls under the jurisdiction of a number of state agencies

including the TSSWCB, TCEQ, and TDA. 

Texas Groundwater Protection Committee

The Texas Groundwater Protection Committee (TGPC) was formally

created by the 71st Legislature in 1989. The TGPC was created to bridge

gaps among existing state water and waste regulatory programs in order to

focus protection on groundwater resources and to optimize water quality

protection by improving coordination among agencies involved in

groundwater activities. Texas Water Code sections 26.401 through 26.407

established the TGPC and outlined its powers, duties, and responsibilities.

The TGPC is responsible for preparing the Texas Groundwater Protection

Strategy, which provides guidelines for the prevention of contamination

and for the conservation of groundwater and that provides for the

coordination of the groundwater protection activities of the agencies

represented on the committee. 

The state's groundwater protection policy was adopted by the Legislature

as part of the Act that created the TGPC. The policy sets out

non-degradation of the state's groundwater resources as the goal for all

state programs. The state's groundwater protection policy recognizes:

# the variability of the state's aquifers in their potential for

beneficial use and susceptibility to contamination,

# the importance of protecting and maintaining present and

potentially usable groundwater supplies,

# the need for keeping present and potential groundwater

supplies reasonably free of contaminants for the protection of

the environment and public health and welfare, and 

# the importance of existing and potential uses of groundwater

supplies to the economic health of the state.
58 TCEQ/TSSWCB joint publication SFR-68/04

The TGPC actively attempts to identify opportunities to improve existing

groundwater quality programs and promote coordination between

agencies. The TGPC strives to identify areas where new or existing

programs could be enhanced to provide additional needed protection.

Coastal Coordination Council

The Coastal Coordination Council (Council) administers the Coastal

Management Program (CMP). The Commissioner of the General Land

Office chairs the Council. Other members of the Council include the chair,

or a member designated by the chair, of the following agencies'

Commissions: the Texas Parks and Wildlife Department (TPWD); the

Texas Commission on Environmental Quality; the Railroad Commission

of Texas; the Texas Water Development Board; the Texas Transportation

Commission; the State Soil and Water Conservation Board; the director of

the Texas A&M University Sea Grant Program serving as a non-voting

member; and four gubernatorial appointees. The appointees consist of a

local elected official who resides in the coastal area, a business owner in

the coastal area, a resident from the coastal area, and a representative of

agriculture. 

The Council is charged with adopting uniform goals and policies to guide

decision-making by all entities regulating or managing natural resource

use within the Texas coastal area. The Council reviews significant actions

taken or authorized by state agencies and subdivisions that may adversely

affect coastal natural resources to determine their consistency with the

CMP goals and policies. In addition, the Council oversees the CMP

Grants Program and the Small Business and Individual Permitting

Assistance Program.

Texas Alliance of Groundwater Districts

The Texas Alliance of Groundwater Districts (TAGD), formerly the Texas

Groundwater Conservation Districts Association, was formed on May 12,

1988, as a nonprofit §501©)(3) corporation. The TAGD was formed to

further the purpose of groundwater conservation and protection activities.

The TAGD provides a means of communication and exchange of

information between individual districts regarding the day-to-day

operation of local groundwater management. Members of TAGD are part

of a network which provides valuable technical and operational

experience. This often provides information that saves districts time and

money. The TAGD maintains contact with members of the private sector

and various elected, local, state, and federal officials, providing them with

timely information on activities and issues relevant to groundwater

management. Members of TAGD also serve on various local, state, and

federal agency committees and subcommittees, providing input and

information on behalf of the member district.
TCEQ/TSSWCB joint publication SFR-68/04 59

One of the primary intents of Chapter 36 of the Texas Water Code, the

chapter empowering groundwater conservation districts, is for the districts

to develop and carry out educational programs for their constituency.

Many districts have developed educational programs directed toward

water conservation, well-head protection and overall environmental

awareness that has contributed to the mitigation of NPS pollution.

Soil and Water Conservation Districts

There are currently 217 soil and water conservation districts (SWCDs)

organized across the state. Each district is an independent political

subdivision of state government that is governed by five directors elected

by landowners in the district. Local SWCDs provide assistance to

agricultural landowners or operators.

Various federal, state, and local agencies provide assistance to SWCDs.

The TSSWCB was designed to organize and serve as the state-level

administrative agency for local SWCDs. Through Memoranda of

Understanding with the USDA-NRCS, local SWCDs are able to furnish

technical assistance to farmers and ranchers in the preparation of a

complete soil and water conservation plan to meet each land units's

specific capabilities and needs.

Senate Bill 503 of the 73rd Texas Legislature created the Water Quality

Management Plan Program authorizing the TSSWCB, through local

SWCDs to provide agricultural and silvicultural producers with an

opportunity to comply with state water quality laws through traditional,

voluntary, incentive-based programs. Landowners and operators may

request the development of a site-specific water quality management plan

through local SWCDs. Plans include appropriate land treatment practices,

production practices, and management and technology measures to

achieve a level of pollution prevention or abatement consistent with state

water quality standards.

SWCDs work to bring about the widespread understanding of the needs of

soil and water conservation. In addition, they work to activate the efforts

of public and private organizations and agencies into a united front to

combat soil and water erosion and to enhance water quality and quantity

in the state. It is the purpose of SWCDs to instill in the minds of local

people that it is their individual responsibility to do the job of soil and

water conservation.

Importance of Local Participation

The 1987 amendment to the Clean Water Act was the first comprehensive

attempt by the federal government to control nonpoint sources of

pollution. Since that time, other state, federal and local programs have

been created or expanded to protect water quality. Many local, regional,

state, and federal agencies have specific responsibilities that are critical to
60 TCEQ/TSSWCB joint publication SFR-68/04

the restoration of NPS impacted waterbodies. Organizations, especially at

the watershed level, can provide information about local concerns and

infrastructure, and can help to implement and build support for pollution

control measures necessary to restore water quality.

The table below presents an overview of some of the programs involved in

implementing the State's Nonpoint Source Management Program by

achieving the milestones and goals defined in this document. For more

information about these programs, see chapter 5 for a detailed discussion.

These programs are implemented by the agencies described above.

Table 4.2 Federal, State, and Local Programs and Activities for Assessment, 

Implementation and Education within the Texas Nonpoint Source Pollution

Management Program

Program Lead Agency Program Type Funding

Source

NPS Grant Program TCEQ

TSSWCB

Assessment

Implementation

Education

Federal

Clean Rivers Program (CRP) TCEQ

River Authorities

Councils of Government

Assessment

Education

Fees

TMDL Implementation Plans TCEQ

TSSWCB

Assessment

Implementation

Education

Federal 

State

Superfund Program TCEQ Implementation Federal

State

Brownfields Program TCEQ

EPA

Implementation Federal 

State 

Voluntary Cleanup Program TCEQ Implementation State 

Fees

Corrective Action Program TCEQ Implementation State

Leaking Petroleum Storage Tank

Program

TCEQ Implementation Federal

State

Floodplain Management TCEQ Implementation State

Emergency Response Program TCEQ

RRC

DSHS

EPA

Implementation State

Coastal Oil Spill Prevention and

Response

GLO

U. S. Coast Guard

Implementation State

Kills and Spills Team TPWD Implementation State
TCEQ/TSSWCB joint publication SFR-68/04 61

401/404 Water Quality

Certification

Corps

TCEQ

RRC

TPWD

Implementation Federal

State

Water Rights Permit Program TCEQ Implementation State

Clean Marina Initiative NOAA Implementation

Education

Federal

Clean Texas Marinas TCEQ

GLO

Implementation

Education

Federal

State 

Small Spill Prevention Program GLO Implementation

Education

State

Solid Waste Permitting

Programs

TCEQ Implementation State

Beneficial Use Sludge

Permitting Program

TCEQ Implementation State

Illegal Disposal Abatement

Program

TCEQ Implementation

Education

State

Texas Environmental

Enforcement Task Force

TCEQ

TPWD

GLO

RRC

Atty General’s Office

Governor’s Office

Implementation

Education

State

Citizen Complaints TCEQ Implementation State

Citizen Environmental Watch TCEQ Implementation State

Composting TCEQ

TSSWCB

Implementation

Education

Federal 

State 

Local

Used Oil Recycling TCEQ Implementation Fees

Household Hazardous Waste

Management Program

TCEQ Implementation

Education

State

Tire Disposal Program TCEQ Implementation Fees 

City of San Antonio Waste

Management Programs

City of San Antonio Implementation

Education

Local 

City of Austin Biosolids

Composting

City of Austin Implementation Local

Fees

Municipal and Industrial

Wastewater Permitting

TCEQ Implementation Fees

On-Site Sewage Facility

Program

TCEQ

Local Authorities

Implementation Fees
62 TCEQ/TSSWCB joint publication SFR-68/04

Texas On-Site Wastewater

Treatment Research Center

Established by the

Legislature

Implementation

Education

State

City of El Paso Reclaimed

Water System

City of El Paso Implementation Federal

State

Local

Fees

Brazos River Authority

Technical Assistance Program

Brazos River Authority Implementation Local

State Storm Water Permitting

Programs

TCEQ

EPA

Implementation State

Storm Water Management

Guidelines

TxDOT Implementation State

Trinity River Corridor City of Dallas Implementation Local 

Dallas Floodway Extension City of Dallas

Corps of Engineers

Implementation Local

San Antonio River Tunnel City of San Antonio Implementation Local

Integrated Storm Water

Management Program

North Central Texas

Council of Govts.

Local 

San Angelo Urban Nonpoint

Source Abatement Program

City of San Angelo

UCRA

Implementation

Education

Federal

Local

Groundwater Pesticide

Management Plan

EPA Implementation Federal

State

Pesticide Review Program EPA Implementation Federal

Agricultural Pesticide

Regulation

TDA

EPA

TCEQ

DSHS

Implementation State

Structural Pest Control Board SPCB

TDA

EPA

Implementation State

Agriculture Resource Protection

Authority

ARPA

TDA

TSSWCB

TAES

DSHS

TCEQ

SPCB

Implementation State

Texas Watershed Protection

Committee

TWPC

TCEQ

TSSWCB

TDA

Implementation

Education

State

Agricultural Waste Pesticide

Collection Program

TCEQ

TCE

Implementation State
TCEQ/TSSWCB joint publication SFR-68/04 63

Agricultural Waste Permitting TCEQ

TSSWCB

USDA-NRCS

Implementation Federal

State

TSSWCB Water Quality

Management Program

TSSWCB Implementation

Education

Federal

State 

Dairy Outreach Program TCEQ Implementation

Education

Federal

State

Texas Brush Control Program TSSWCB Implementation State 

Agricultural Loan Program TWDB Implementation State

Private Lands Enhancement

Program

TPWD Implementation

Education

State

Environmental Quality

Incentives Program

USDA-NRCS Implementation

Education

Federal 

Watershed Program USDA-NRCS Implementation Federal 

Conservation Technical

Assistance Program

USDA-NRCS Implementation Federal 

Conservation Reserve Program Farm Services Agency Implementation Federal

Agricultural Research Service USDA Implementation Federal 

TX Institute for Applied

Environmental Research

TIAER Assessment

Implementation

State 

Texas Water Resource Institute TWRI Assessment

Implementation

State 

Creekside Conservation

Program

LCRA Implementation

Education

Local 

Resource Development Program TFS Implementation State

Forest Stewardship Program USDA Forest Service Implementation Federal

Forest Land Enhancement

Program

USDA Forest Service Implementation

Education

Federal

Site Visit Program TCEQ Implementation State

Small Towns Environmental

Program

TCEQ Implementation State

Texas Country Cleanup Program TCEQ

TCE

TDA

Implementation State

Supplemental Environmental

Projects

TCEQ Implementation Local

Clean Texas Program TCEQ Implementation

Education

State

Texas Chemical Council Trade Association Implementation

Education

Local
64 TCEQ/TSSWCB joint publication SFR-68/04

Underground Injection Control TCEQ Implementation State

Source Water Assessment and

Protection Program 

TCEQ Assessment

Implementation

State

Texas Groundwater Protection

Committee

TCEQ

RRC

DSHS

TDA

TSSWCB

TAGD

TAES

BEG

TDLR

Implementation Federal 

State 

Underground Storage Tank

Installer Licensing

TCEQ Implementation State

Texas Department of Licensing

and Regulation

TDLR Implementation State

Edwards Aquifer Protection

Program

TCEQ Implementation Federal 

State

Oil and Gas Well Plugging

Program

RRC Implementation Fees

Wetlands Reserve Program NRCS Implementation State

Texas Wetlands Conservation

Plan

TPWD Implementation

Education

State

Seagrass Conservation Plan TPWD Implementation

Education

State

Coastal Management Plan CCC- GLO Implementation Federal 

State

Wetland Conservation Plan for

State-Owned Coastal Wetlands

TPWD 

GLO

Implementation

Education

State

Texas Wetlands Conservation

Plan

TPWD Implementation Federal

Local Governments Wetland

Plan

GLO Education

Implementation

State

Wetlands Assistance for

Landowners

TPWD Education State

Texas Coastal Management

Program / Coordination Council

CMP-CCC Implementation

Education

Federal 

State 

Galveston Bay Estuary Program GBEP Implementation

Education

Federal 

State 

Local 

Coastal Bend Bays & Estuaries

Program

CBBEP Implementation 

Education

Federal

State 

Local 
TCEQ/TSSWCB joint publication SFR-68/04 65

Coastal Habitat Restoration

Program

TPWD Implementation

Education

State

BEACH Act GLO Assessment Federal 

Local 

Gulf of Mexico CommunityBased Restoration ProgramGCRP Implementation Federal 

State 

Bilge Water Reclamation

Program

GLO Implementation

Education

Federal 

State 

Local 

Coastal Texas 2020 GLO Implementation Federal 

State 

Local 

Adopt -A-Beach Program GLO Implementation

Education

State 

Local 

Border Pollution Prevention

Initiative 

TCEQ Implementation

Education

Federal 

State 

Local 

Border Environment

Infrastructure Fund

NADB Implementation Federal 

Local 

International Boundary and

Water Commission

IBWC Assessment

Implementation

Education

Federal 

Local 

Economically Distressed Area

Program

TWDB Implementation

Education

Federal 

State 

Local 

Colonias Initiatives Program SOS Implementation

Education

State

Border Recycles Day TCEQ Implementation

Education 

State 

Local 

Texas Watch Program EPA

TCEQ

Texas State Univ.

Assessment

Education

Federal

State

Colorado River Watch Program LCRA Assessment

Education

Federal

Local

The Aquatic Experience UCRA Assessment

Implementation

Education

Federal 

Local

The City of Denton Watershed

Protection Program

City of Denton Assessment

Education

Federal

Local

Nonpoint Source Consumer

Education

TCEQ Education Federal

State

Storm Drain Stenciling TCEQ Education State

Back Yard Composting and

Xeriscaping

TCEQ Education Federal

State
66 TCEQ/TSSWCB joint publication SFR-68/04

Teaching Environmental

Sciences

TCEQ Education State

Environmental News You Can

Use

TCEQ Education State

Publications and Videos TCEQ

TSSWCB

Education Federal

State

Environmental Hotlines EPA

TCEQ

Education Federal

State

Local

Small Spill Prevention GLO Education Fees

Agricultural Outreach Program TCE Education Federal 

State

On-Site Wastewater Treatment

Training Center

TAMU Education State

Local

Don’t Mess With Texas TxDOT Education State

Keep Texas Beautiful TxDOT Education State

Texas Wildscapes Program TPWD Education State

Edwards Aquifer Authority Edwards Aquifer

Authority

Education Local

Barton Springs/Edwards Aquifer

Conservation District

BSEACD Education Local

Grow Green and Earth Camp City of Austin Education Local

WET in the City City of Houston Education Local

City of Fort Worth

Environmental Education

City of Fort Worth Education Local

City of San Antonio Curbside

Recycling

City of San Antonio Implementation

Education

Local
TCEQ/TSSWCB joint publication SFR-68/04 67

Texas has a large number of water bodies.

There are 11,247 streams and rivers large

enough to be named, with a total combined 

length of 191,228 miles. However, only

40,194 miles of streams and rivers (21%) are

considered perennial, meaning that they have

sustained flow throughout the year. Texas

also has 9,993 inland reservoirs and lakes 10

acres or larger in size that together cover

approximately 1,994,600 acres. Of those,

211 are major reservoirs which are greater

than 5,000 acre-feet each. Texas bays and

estuaries cover approximately 2,393 square

miles along a coastal shoreline that stretches

624 miles in length. The Gulf of Mexico,

within Texas' jurisdiction covers

approximately 3,879 square miles. In the

conterminous United States, Texas ranks

first in total square miles covered by fresh

water and saltwater with 4,959.

CHAPTER 5 ASSESSMENT

In order to protect water quality, we must define and measure it, identify

the types and sources of pollution, and implement plans to protect,

maintain, and restore water quality. The state of Texas uses a dynamic,

flexible cycle of activities to manage water quality. Steps in the cycle

include:

! Standards and Planning: setting standards for surface

water quality and revising or formulating monitoring plans;

! Monitoring: collecting data to monitor the condition of

surface waters; 

! Assessment and Targeting: assessing data to determine

water quality status and to identify any impairments; 

! Developing Strategies: for protecting, improving, or

restoring water quality with pollutant source controls and

practices; and 

! Implementing Pollution Controls: for both point and nonpoint sources and evaluating progress, which may lead

back to revising those plans or formulating new ones. 

Implementing this cycle of activities involves coordination between many

different entities and programs around the state of Texas. The

development of implementation plans and the implementation of those

plans will be discussed in Chapter 7. 

Surface Water

Assessment

The major surface waters of

Texas have been divided into

classified water segments. A

single river may consist of

several classified segments.

The term segment refers to a

defined, basic unit for

assigning site-specific

standards, and is intended to

have relatively common

biological, chemical,

hydrological, and physical

characteristics. Segments will

also normally exhibit common

reactions to external stresses

such as discharges or
68 TCEQ/TSSWCB joint publication SFR-68/04

pollutants. The establishment of segments facilitates planning activities,

issuance of permits, and allocation of grant funds necessary to implement

various sections of the federal Clean Water Act. Texas currently

recognizes 225 stream segments, 100 reservoir segments, and 48 estuary

segments. The Gulf of Mexico is treated as one segment. Texas surface

water quality standards and the assessment of water quality are based on

these classified segments.

Protecting Surface Water Quality

The TCEQ Water Quality Standards Team is responsible for establishing

and revising standards to protect surface water quality. The Texas Surface

Water Quality Standards (TSWQS), §30, Chapter 307 of the Texas

Administrative Code, recognize the regional and geologic diversity of the

state. Appropriate water uses are designated for each of the classified

segments. Numerical and narrative criteria established in the TSWQS

provide a basis for assessing water quality, evaluating use support, and

managing point and nonpoint source loadings in Texas surface waters. The

TSWQS are designed to:

# establish numerical and narrative criteria for water quality

throughout the state; 

# provide a basis on which TCEQ regulatory programs can

establish reasonable methods to implement and attain the

state's standards.

Water quality standards are protective; that is, if one or more water quality

standard is not being met in a classified segment, there is some possibility

that water quality may be inadequate to meet the designated uses. For

example, a water body fails to meet the dissolved oxygen standard

established to support aquatic life use, yet no fish kills are observed.

However, a decline in the variety or number of aquatic species and an

increased probability of fish kills may exist.

Uses

Four general categories of use are defined in the Texas Surface Water

Quality Standards: aquatic life use, contact recreation, domestic water

supply, and fish consumption.

Aquatic Life Use

The standards associated with this use are designed to protect plant and

animal species that live in and around the water. They establish optimal

conditions for the support of aquatic life and define indicators used to

measure whether these conditions are met. Some pollutants or conditions

that may jeopardize this use include low levels of dissolved oxygen, toxic

substances such as metals or pesticides, or excess turbidity.
TCEQ/TSSWCB joint publication SFR-68/04 69

Contact Recreation 

The standard associated with this use measures the level of certain

bacteria in water to estimate the relative risk of swimming or other water

sports involving direct contact with the water. It is possible to swim in

water that does not meet this standard without becoming ill; however, the

probability of becoming ill is higher than it would be if bacteria levels

were lower.

Domestic Water Supply 

Domestic water supply consists of two subcategories: Public Water

Supply and Aquifer Protection. 

Public Water Supply. Standards associated with this use indicate whether

water from a lake or river is suitable for use as a source for a public water

supply system. Source water is treated before it is delivered to the tap and

must meet a separate set of standards established for treated drinking

water. Indicators used to measure the safety or usability of surface water

bodies as a source for drinking water include the presence or absence of

substances such as metals or pesticides. Concentrations of salts, such as

sulfate or chloride, are also measured, since treatment to remove high

levels of salts from drinking water is expensive.

Aquifer Protection. Segments designated for aquifer protection are

capable of recharging the Edwards Aquifer. The principal purpose of this

use designation is to protect the quality of water infiltrating and

recharging the aquifer. The designation for aquifer protection applies only

to those designated portions of the segments that are on the recharge zone,

transition zone, or contributing zone of the Edwards Aquifer.

Fish Consumption

The standards associated with this use are designed to protect the public

from consuming fish or shellfish that may be contaminated by pollutants.

The standards identify levels at which there is a significant risk that

certain toxic substances dissolved in water may accumulate in the tissue of

aquatic species. However, because pollutant concentrations in water do

not always predict when toxic substances will accumulate in fish, the state

also conducts tests on fish and shellfish tissue to determine if there is a

risk to the public from consuming fish caught in state waters. The

standards also specify bacterial levels in marine waters to assure that

oysters or other shellfish that may accumulate bacteria from the water are

safe for commercial harvest, sale, and consumption by the public.

Water Quality Indicators

Specific indicators of water quality such as bacteria, dissolved solids, and

organics are also described in the standards. Several different parameters

may be measured to determine whether a water body meets its designated
70 TCEQ/TSSWCB joint publication SFR-68/04

uses. Some of the most common are listed here, with an explanation of

why they are important to the health of a water body.

Fecal Coliform, E. Coli, and Enterococci Bacteria 

These bacteria are measured to determine the relative risk of swimming or

other water sports. These bacteria are found in the waste of warm-blooded

animals. Their presence may indicate that pathogens also in these wastes

may be reaching a body of water from sources, such as, inadequately

treated sewage, improperly managed animal waste from livestock, pets in

urban areas, or failing septic systems.

Dissolved Oxygen

The concentration of dissolved oxygen is a single, easy-to-measure

characteristic of water that positively correlates with the abundance and

diversity of aquatic life in a water body. A water body that can support

diverse, abundant aquatic life is a good indication of high water quality.

However, highly variable dissolved oxygen concentrations may indicate a

related problem associated with an excess of nutrients in water. High

concentrations of nutrients in water may stimulate excessive growth of

vegetation which may result in very high dissolved oxygen concentrations

during the day and very low dissolved oxygen concentrations at night.

These conditions may have a negative impact on aquatic life use.

Dissolved Solids

High levels of dissolved solids, such as chloride and sulfate, can cause

water to be unusable, or simply too costly to treat for the drinking water

supply use. Changes in dissolved solids concentrations also adversely

affect the water quality for aquatic life use. 

Metals

Concentrations of metals can pose a threat to drinking water supplies and

human health. Eating fish contaminated with metals can cause these toxic

substances to accumulate in tissue, posing a risk to human health. Metals

also pose a threat to livestock and aquatic life. Potentially dangerous

levels of metals and other toxic substances are identified through chemical

analysis of water, sediment, and fish tissue. 

Organics

Toxic substances from pesticides and industrial chemicals, called

organics, pose the same concerns as metals. Polychlorinated biphenyls

(PCBs), for example, are industrial chemicals that are toxic and probably

carcinogenic. Although banned in the United States in 1977, PCBs remain

in the environment, and they accumulate in fish and human tissues when

consumed. Potentially dangerous levels of toxic substances are identified

through chemical analysis of water, sediment, and fish tissue. 
TCEQ/TSSWCB joint publication SFR-68/04 71

Fish Consumption Advisories and Closures

The Texas Department of State Health Services (DSHS) conducts

chemical testing of fish tissue to determine whether there is a risk to

human health from consuming fish or shellfish caught in Texas streams,

lakes, and bays. Fish seldom contain levels of contaminants high enough

to cause an imminent threat to human health, even to someone who eats

fish regularly. Risk increases for those persons who regularly consume

larger fish and predatory fish from the same area of contaminated water

over a long period of time. When a fish consumption advisory is issued, a

person may legally take fish or shellfish from the water body under the

advisory, but should limit how much fish he or she eats, and how often.

When a fish consumption closure is issued, it is illegal to take fish from

the water body. 

Data Collection

Better understanding the relationship between land and water starts with

monitoring the condition of water quality. The mission of the TCEQ

Surface Water Quality Monitoring (SWQM) program is to characterize the

water quality of the ambient surface waters of the state.

Monitoring activities can be grouped into five categories: routine

monitoring, systematic monitoring, targeted monitoring, permit support

monitoring and effectiveness monitoring: 

Routine monitoring is designed to assess the status and trends of overall

water quality throughout the state, and for each river basin. Data are

collected using a monitoring network of key sites on the major water

bodies in each basin on a regular basis. Monitoring sites may also include

smaller water bodies to support characterization of ecoregions and/or

basin-specific conditions. 

Systematic monitoring focuses on evaluating subwatersheds and

unclassified water bodies. Its purpose is to investigate and detect areas of

concern, and identify issues that require further study. It also includes

monitoring at sites to check the status of water bodies (identify

improvements or concerns). This monitoring strategy rotates resources

around the river basin to gather information on water bodies that would

not normally be included in the routine monitoring program.

Targeted monitoring is conducted on water bodies where there is reason

to believe there is a threat or a concern for water quality, to establish the

extent and degree of an impairment, or to determine the best strategy for

restoring water quality. Sometimes called special studies, targeted

monitoring activities usually involve intensive periods of data collection at

sites where routine or systematic monitoring identified impacts, concerns,

or impaired uses.
72 TCEQ/TSSWCB joint publication SFR-68/04

Permit support monitoring is used to address specific areas where

additional information is need to determine appropriate limits for

wastewater discharges. This may include studies to gather site-specific

information for use in developing permits. 

Effectiveness monitoring is conducted to evaluate whether management

practices, regulatory measures, and watershed improvement and

restoration plans are producing the desired results. 

Monitoring Coordination

The CRP plays a key role in the TCEQ’s yearly integration of these

various monitoring needs into a coordinated monitoring schedule for the

entire state. The schedule shows all surface water monitoring being

conducted by the TCEQ or under its contracts or cooperative agreements

for each planning year. 

Planning and development of the coordinated monitoring schedule takes

place from January through May preceding the state fiscal year for which

the plan is developed. To support coordinated monitoring, the TCEQ has

developed guidance for selecting sites and for sampling methods for

routine, systematic, and targeted monitoring. The coordinated monitoring

schedule is hosted by the Lower Colorado River Authority, a CRP

Planning Agency, on its Web site at http://cms.lcra.org/. 

Texas Commission on Environmental Quality

Surface Water Quality Monitoring Program

The TCEQ's Surface Water Quality Monitoring (SWQM) Program is

coordinated by the Surface Water Quality Monitoring Team and by staff

in the TCEQ's 16 regional offices. Routine monitoring and special studies

are conducted by SWQM personnel. 

Finished drinking water data is collected by the TCEQ’s Drinking Water

Quality Program. Additional supporting information is provided by the

Source Water Assessment and Protection Program (discussed in Chapt 5).

Clean Rivers Program 

The CRP is a collaboration of 15 regional water agencies with the TCEQ.

It is a unique, water quality monitoring, assessment, and public outreach

program that is funded by state fees assessed on the number and size of

wastewater treatment plants and surface water right permittees that reside

within each river basin. The CRP provides the opportunity to approach

water quality issues at the local level through coordinated efforts among

diverse agencies, various programs, and the public. 

Cost-effective watershed management decisions must be based on

scientifically valid and complete assessments of water quality conditions

and contributing causes of impact. Water bodies should be selected upon
TCEQ/TSSWCB joint publication SFR-68/04 73

the importance of the resource, risk from pollution, and with input from

the Steering Committees (discussed in Chapter 4). Monitoring activities

include fixed monitoring, systematic monitoring, targeted monitoring, and

special studies.

United States Geological Survey

The United States Geological Survey (USGS) also conducts a large

amount of monitoring statewide and much of the data are utilized by the

TCEQ. The USGS surface water collection network in Texas is primarily

established to monitor stream flow continuously at many permanent sites.

Field measurements, routine water chemistry, and metals in water are also

collected at many of the fixed sites. Sites are chosen to represent a mix of

natural and human factors that influence water quality. Chemical variables

are then related by the USGS to hydrologic conditions to interpret

water-resource conditions and meet water quality management needs.

Estimation of point and nonpoint source loadings, stormwater

management, and chemical-contaminant controls are some of those needs. 

Other Sources 

Additional data from other state and federal agencies, cities, and other

monitoring groups can be assessed in the evaluation of water quality if the

data meet clearly defined acceptance and time line criteria established by

the TCEQ. Previous contributors of data of this type include the Texas

Department of State Health Services (DSHS), Texas Parks and Wildlife

Department (TPWD), Texas Institute for Applied Environmental Research

(TIAER), and Texas Watch.

Assessing the Data

The current condition of Texas surface water resources and the

effectiveness of protection and restoration activities are evaluated by

assessing the available data. The physical, chemical, and biological

characteristics of aquatic systems are assessed in relation to human health

concerns, ecological conditions, and designated uses. Water quality data

may be used to:

# characterize existing conditions,

# evaluate spatial and temporal trends,

# determine water quality standards compliance,

# identify emerging problems, and

# evaluate the effectiveness of water quality control programs.

Water Quality Inventory

The TCEQ evaluates the condition of the state's water bodies on a periodic

basis as required by CWA§305(b). The results of this evaluation are

contained within the Texas Water Quality Inventory and 303(d) List which

is prepared by the TCEQ's SWQM team and submitted to the EPA for
74 TCEQ/TSSWCB joint publication SFR-68/04

approval. One of five categories is assigned to each parameter and area of

a water body, known as an assessment unit, to provide more information

to the public, EPA, and agency staff about water quality status,

management plans, and management activities. When an assessment unit

has multiple parameters, the highest category is assigned to the assessment

unit. When a water body has multiple assessment units, an overall

category is assigned to the entire water body. The table below summarizes

the categorization of water bodies in Texas. Categories four and five

represent the list of impaired water bodies as required by CWA§303(d).

 Table 5.1 Categories of the Texas Water Quality Inventory and 303(d) List

Category 1 Attaining the water quality standard and no use is threatened.

Category 2 Attaining some of the designated uses; no use is threatened;

and insufficient or no data and information are available to

determine if the remaining uses are attained or threatened.

Category 3 Insufficient or no data and information to determine if any

designated use is attained.

Category 4 Standard is not supported or is threatened forone or more

designated uses but does not require the development of a

TMDL.

Category 4a TMDL has been completed and approved by EPA.

Category 4b Other pollution control requirements are reasonably expected

to result in the attainment of the water quality standard in the

near future.

Category 4c Nonsupport of the water quality standard is not caused by a

pollutant.

Category 5 Category 5 is the 303(d) list. The water body does not meet

applicable water quality standards or is threatened for one or

more designated uses by one or more pollutants.

Category 5a A TMDL is underway, scheduled, or will be scheduled.

Category 5b A review of the water quality standards will be conducted

before a TMDL is scheduled.

Category 5c Additional data and information will be collected before a

TMDL or review of the water quality standard is scheduled.

Nonpoint Source Assessment 

The CWA §319(a) assessment focuses only on those waters which have

been identified as being degraded, at least in part, by nonpoint source

pollution. Texas' CWA §319(a) assessment of impaired waters is based on

the Texas Water Quality Inventory and 303(d) List. In order to address the

most current priorities for Texas and have a NPS program based on the

most current information, the latest state approved Texas Water Quality

Inventory and 303(d) List will serve as the state's 319(a) assessment.
TCEQ/TSSWCB joint publication SFR-68/04 75

NPS-degraded surface waters appearing in the report will be targeted by

the state for additional NPS monitoring and restoration activities.

With regards to CWA §319(h) grant funding, priority for assessment

dollars is given to those water bodies that fall under categories 5a, 5b, and

5c of the Texas Water Quality Inventory and 303(d) List. Assessment

dollars may also be used to fund development of TMDL Implementation

Plans or Pollution Reduction Strategies for water bodies in categories 4a,

4b, and 4c. These plans are discussed in Chapter 6.

Basin Status Reports 

Each CRP partner agency collects information on potential sources of

pollution throughout its planning area or river basin. This information is

used to correlate water quality to the environmental factors that influence

it, such as soils, climate, hydrology, wastewater treatment plans, urban

runoff, and agricultural runoff. An annual basin status report, the Basin

Highlights Report, is produced by each regional water agency, and

provides an overview of water quality issues and the status of ongoing

projects/tasks. A detailed and in-depth data analysis is provided for each

basin in the Basin Summary Report once every five years. This report

provides trend analysis, spatial analysis (correlating environmental factors

to water quality), an explanation for why certain water quality issues exist,

and recommendations for addressing persistent water quality problems.

The CRP strives to report water quality data in a user-friendly format to

inform the public. The information contained in these reports is utilized by

the TCEQ in the development of the Texas Water Quality Inventory and

303(d) List, subsequent statewide rankings, and prioritization of

management strategies.

Total Maximum Daily Loads (TMDLs)

A TMDL, or Total Maximum Daily Load, is a tool for achieving water

quality standards and is based on the relationship between pollution

sources and in-stream water quality conditions. TMDLs are developed to

provide an analytical basis for planning and implementing pollution

controls, land management practices, and restoration projects needed to

protect water quality. The TMDL establishes the allowable loadings or

other quantifiable parameters for a water body and thereby provides the

basis to establish water quality-based controls. These controls provide the

pollution reduction necessary for a water body to meet water quality

standards.

CWA§303(d) and its implementing regulations (40 CFR §130.7) require

states to identify waters that do not or will not meet applicable water

quality standards after the application of technology-based or other

required controls, and to establish TMDLs for pollutants that are causing

non-attainment of water quality standards. For listed waters, States must

develop TMDLs allowing for seasonal variations and an appropriate
76 TCEQ/TSSWCB joint publication SFR-68/04

margin of safety. A TMDL is a quantitative assessment of water quality

problems, contributing sources, and load reductions or control actions

needed to restore and protect individual water bodies. 

TMDLs address all significant stressors which cause water body use

impairment, including: point sources (e.g., sewage treatment plant

discharges), nonpoint sources (e.g., runoff from fields, streets, range, or

forest land), and naturally occurring sources (e.g., runoff from undisturbed

lands). A TMDL is the sum of the individual wasteload allocations for

point sources, load allocations for nonpoint sources and natural

background pollutants, and an appropriate margin of safety. TMDLs may

address individual pollutants or groups of pollutants, as long as they

clearly identify the links between the water body use impairment, the

causes of the impairment, and the load reductions needed to remedy the

impairment. 

Public participation is an integral part of the TMDL process. Therefore,

the TMDL process provides many opportunities for the public to

participate. Listed below are a few of the ways the public can participate

in the TMDL process:

# In most cases a watershed committee is established to provide local

input on TMDL projects. The public is encouraged to work on these

committees or attend these committee meetings. 

# TMDL meetings are open to the public. Public notices are provided

for these meetings. These meetings provide an opportunity to make

comments and get answers to questions.

# The public is given a chance to review and provide comments on the

development of the current CWA§303(d) list for the state.

# Before the state adopts a TMDL, a formal public comment period is

provided in which the draft TMDL is made available, a public

comment hearing is conducted, and responses to all comments are

published.

# Resources are available to assist the public's participation in the

TMDL process. The TCEQ website provides information about the

TMDL program, the status of individual TMDL projects, and links

to other TMDL-related websites. The TCEQ has also published

printed materials such as Developing Total Maximum Daily Load

Projects in Texas: A Guide for Lead Organizations, which provides

valuable information on the TMDL process in Texas.

The development of TMDLs begins with the review of existing data

and/or the collection of additional data related to water quality, point

source discharge, precipitation, soils, geology, topography, and land use

(construction, agriculture, mining, etc.) within the watershed. Next,

models or other analytical methods are used to calculate pollutant loads

and the water quality response of the receiving water. The appropriate
TCEQ/TSSWCB joint publication SFR-68/04 77

analytical method/model is selected based on the pollutants of concern,

the amount of data available, and the type of water body. If a computer

model is selected, data collected from the watershed may be used to

calibrate and verify the model so that the computed values match those of

known field data. The model can then be used to develop different

scenarios, by first determining the amount of specific pollutants each

source contributes, then calculating the amount each pollutant needs to be

reduced, and finally specifying how the reduced pollutant load would be

allocated among the different sources. In some cases, TMDLs can be

based on readily available information and studies using simple analytical

efforts to provide a basis for stressor assessment and implementation

planning. In other cases, more complex, data intensive computer

simulations are required.

Upon completion of data collection and analyses, a TMDL report is

developed adopted by the state after a thorough public review and

comment period. The state-adopted TMDL is submitted to EPA for review

and approval. The TMDL Report consists of six component parts, each of

which is presented and discussed below.

Problem Statement: The TMDL report includes an indication whether

the segment is on the latest CWA§303(d) list and its priority, applicable

water quality standards are identified, the pollutant or stressor of concern

is identified, and the beneficial use impairment of concern is described.

Historical water quality data from the impaired water body and its

contributing watershed is presented and assessed. The TMDL report

describes the characteristics of the water body such as drainage area,

length, flow rates, depth, etc. The watershed is described including

characterization of soil types, land uses, population, wildlife resources,

and topography. The TMDL report includes a general description of the

location of the impaired water body including information about the river

basin, ecoregion, and political jurisdictions in which it is located. 

Endpoint Identification: Numeric water quality target(s) for the TMDL

are identified in the TMDL report, and the basis for target(s) as

interpretation of water quality standards is documented. These targets

identify the specific instream (and potentially watershed) goals or

endpoints for the TMDL which equate to attainment of the water quality

standard. In some cases, multiple indicators and associated numeric target

values may be needed to interpret an individual water quality standard. In

addition, some TMDLs may incorporate multiple numeric targets to

account for seasonal differences in acceptable pollutant levels in a

particular water body. In many cases where applicable standards are

expressed in numeric terms, it is appropriate to set the numeric target

equal to the numeric water quality standard.

In situations where applicable water quality standards are expressed in

narrative terms, it is necessary to develop a quantitative interpretation of
78 TCEQ/TSSWCB joint publication SFR-68/04

narrative standards. Since a TMDL is an inherently quantitative analysis,

it is necessary to determine appropriate quantitative indicators of

the water quality problem of concern in order to calculate a TMDL. It is

sometimes possible to supplement instream indicators and targets with

watershed targets-- measures of conditions within the watershed which are

directly associated with water bodies meeting their water quality

standards for the pollutant(s) of concern. 

Source Analysis: Point, nonpoint, and background sources of pollutants

of concern are described in the TMDL report, including the magnitude and

location of sources. The TMDL document demonstrates all sources have

been considered. The TMDL document provides estimates of the amounts

of pollutants entering the receiving water of concern or, in some cases, the

amount of pollutant that is bioavailable based on historic loadings stored

in the aquatic environment. These pollutant sources or causes of the

problem are documented based on site-specific studies, literature reviews

or other sources of information. Sources can be categorized in many ways,

including but not limited to discharge source, land use category,

ownership, pollutant production process (e.g. sedimentation processes),

and/or tributary watershed areas. The source analysis discusses the data

and methods used to estimate source contributions.

Linkage Between Pollutant Sources and Water Quality in the

Receiving Water: The TMDL document describes the relationship

between numeric target(s) and the identified pollutant sources, leading to

an estimate of the total assimilative capacity (loading capacity) of the

waterbody for the pollutant of concern. The loading capacity is the critical

quantitative link between the applicable water quality standards (as

interpreted through numeric targets) and the TMDL. Thus, a maximum

allowable pollutant load is estimated to address the site-specific nature of

the impairment. The loading capacity reflects the maximum amount of a

pollutant that may be delivered to the water body and still achieve water

quality standards. A number of different loading capacity approaches can

be used as part of TMDLs.

The loading capacity section discusses the methods and data used to

estimate loading capacity. A range of methods can be used from predictive

water quality models to inferred linkages based on comparison of local

reference conditions with existing conditions in the watershed of concern.

In some cases, loading capacity may vary within the watershed of concern

(e.g., toxics loading capacity may be higher in areas with high water

mixing rates than in backwater areas with poor water exchange), and in

different time periods (e.g. nutrient loading capacity may be lowest during

high temperature summer low flow periods). The basis for spatial and

temporal variations in loading capacity estimates is discussed.

Margin of Safety: A margin of safety is included in the TMDL report to

account for uncertainty in the understanding of the relationship between
TCEQ/TSSWCB joint publication SFR-68/04 79

pollutant discharges and water quality impacts. The TMDL document

describes an explicit and/or implicit margin of safety for each pollutant.

An explicit margin of safety can be provided by reserving (not allocating)

portion of the loading capacity identified for the water body for the

pollutant of concern. An implicit margin of safety can be provided by

making and documenting conservative assumptions used in the TMDL

analysis. The TMDL report provides an explanation of the basis for

margin of safety which shows why it is adequate to account for

uncertainty in the TMDL. Where an implicit margin of safety is provided,

the report includes a discussion of sources of uncertainty in the analysis

and how individual analytical assumptions or other provisions adequately

account for these sources of uncertainty.

Load Allocations: The TMDL report identifies the total allowed

pollutant amount and its components: appropriate wasteload allocations

for point sources; load allocations for nonpoint sources; load allocation for

an appropriate margin of safety; and, natural background. Allocation of

allowable loads or load reductions among different sources of concern are

determined. These allocations are usually expressed as wasteload

allocations to point sources and load allocations to nonpoint sources.

Allocations can be expessed in terms of mass loads or other appropriate

measures. The TMDL equals the sum of allocations and cannot exceed the

loading capacity. Load allocations for nonpoint sources are generally

expressed as specific allocations for "gross allotments" to nonpoint source

discharger categories. Separate nonpoint source allocations are established

for background loadings. Allocations may be based on a variety of

technical, economic, and political factors. The methodology used to set

allocations is discussed.

Monitoring the Results 

There are many different programs in place throughout the state that are

responsible for conducting implementation activities. Upon implementing

a best management practice (BMP) or other implementation activity it is

necessary to determine the effectiveness of the activity. Data collected

after implementation must be compared to data collected prior to

implementation to determine effectiveness. These data may be historical,

like that collected for a special study, or collected as part of the project

tasks prior to implementation. In some cases, routine monitoring can be

used to evaluate effectiveness. In other cases, it will be necessary to

collect data in a specific project area to evaluate the effectiveness of the

implementation activities. Certain types of BMPs or implementation

activities will not show immediate results. Effectiveness and water quality

improvements will be determined over time, and not immediately upon

implementation. More about implementation activities will be discussed

later in this document. 
80 TCEQ/TSSWCB joint publication SFR-68/04

Groundwater Assessment

Groundwater supplies about 58% of all water used by Texans for

domestic, municipal, industrial, and agricultural purposes. Approximately

36% of the water used for municipal supplies, and 75% of the water used

for agricultural purposes is obtained from groundwater sources. This

groundwater is produced from aquifers, which are underground layers of

rock with water stored in pore spaces, cracks or voids. Major aquifers are

defined as producing large quantities of water in a comparatively large

area of the state, whereas minor aquifers produce significant quantities of

water within smaller geographic areas or small quantities in large

geographic areas. Minor aquifers are very important as they may

constitute the only significant source of water supply in some regions of

the state.

Nine major aquifers and twenty-one minor aquifers have been delineated

within the state. These major and minor aquifers underlie approximately

76% of the state's surface area. Other undifferentiated, local aquifers may

represent the only source of groundwater where major or minor aquifers

are absent. These local aquifers, which provide groundwater that is used

for all purposes, vary in extent from very small to several hundred square

miles.

Measuring Groundwater Quality

The Texas Water Development Board (TWDB) is authorized by the Texas

Water Code to conduct studies and map the state's water resources. The

TWDB has identified the state's aquifers, and delineated the boundaries of

major and minor aquifers based on yields and significance of aquifer

production. These maps depict the extent of each aquifer, including where

it is exposed at the surface, which is commonly where recharge occurs, as

well as, the portion of the aquifer underground. For most aquifers, a Total

Dissolved Solids (TDS) concentration of 3,000 milligrams per liter is used

to mark the boundary of usable quality water when mapping aquifers. The

boundary of the Edwards Aquifer, for mapping purposes, is defined by a

TDS concentration of 1,000 milligrams per liter. 

TDS are constituents in groundwater dissolved from the surrounding rock

and are the basis for the Texas Groundwater Protection Committee's

(TGPC) groundwater classification system. 

Under this groundwater classification system, four classes are defined

based on quality as determined by TDS concentration. Through

classification, groundwater can be categorized, and protection or

restoration decisions can be made according to the water quality present or

potential use of the groundwater.
TCEQ/TSSWCB joint publication SFR-68/04 81

DRASTIC

D - Depth to water

R - annual Recharge

A - Aquifer media

S - Soil media

T - Topography

I - vadose zone Impact

C - hydraulic

Conductivity

Table 5.2 TGPC Groundwater Classification System

CLASS QUALITY* EXAMPLES OF USE

Fresh Zero to 1,000 Drinking and all other uses

Slightly Saline More than 1,000 to 3,000 Drinking (if freshwater is unavailable),

livestock watering, irrigation, industrial,

mineral extraction, oil and gas production

Moderately Saline More than 3,000 to 10,000 Potential/future drinking and limited livestock

watering and irrigation (if fresh or slightly

saline water is unavailable); industrial, mineral

extraction, oil and gas production

Very Saline to Brine More than 10,000 Mineral extraction, oil and gas production

*Concentration range of total dissolved solids in milligrams per liter.

The state has developed surface water quality standards applicable to

certain water bodies that are protective of groundwater affected by surface

water. For the recharge zone of the Edwards Aquifer, the state has

developed water quality protection measures that specify groundwater

recharge as a "designated use" in the state's surface water quality

standards. The state has not developed standards for pollutant discharge to

groundwater, although, the legislatively mandated (TWC §26.401) goal

of non-degradation of use guides the priorities of groundwater programs.

However, comparison of measured values for constituents of concern in

major and minor aquifers with TDS concentration of 3000 mg/L, or less,

against adopted Safe Drinking Water Act (SDWA) Maximum

Contaminant Levels (MCL's) provides an effective method of evaluating

groundwater quality in aquifers for the intended use of drinking water. 

Aquifer Vulnerability

Since groundwater contamination can remain latent for a lengthy period of

time, and since groundwater is difficult to clean up once it has become

impacted, the majority of Texas groundwater programs focus on

prevention of contamination, rather than remediation. This is true of

point-source regulatory and permitting

programs, as well as NPS related programs

like the Pesticides in Groundwater Program

conducted under the Federal Insecticide,

Fungicide and Rodenticide Act (FIFRA) by

TCEQ. 

Previous NPS assessments have contained an

aquifer vulnerability ranking system based on

the average DRASTIC index for the aquifers

of Texas. This ranking system is used

(Appendix D), because it is a reasonable method of determining the
82 TCEQ/TSSWCB joint publication SFR-68/04

relative vulnerability of aquifers to surface activities, and by extension,

possible NPS contamination.

Data Collection

The TWDB has the responsibility for collecting and maintaining an

inventory of ambient groundwater conditions throughout the state. The

TGPC relies upon ambient monitoring data from the TWDB for state

groundwater quality information. The TWDB performs ambient

groundwater monitoring on water wells in a particular number of Texas

aquifers each year, so that all major and minor aquifers of the state are

monitored approximately every five years. The TWDB maintains a

database of ambient groundwater monitoring data for the state from over

51,000 water wells and is supplemented by data from the United States

Geological Survey (USGS), the Bureau of Economic Geology (BEG), and

the TCEQ. Also, many of the groundwater conservation districts

throughout the state have well-developed monitoring programs that are

primarily intended to monitor the volume of water in an aquifer, but also

collect groundwater quality information. Data are maintained by the

groundwater conservation district, and generally reported to the TWDB

for inclusion in their ambient groundwater database.

Assessing the Data

For the groundwater portion of the Texas Water Quality Inventory and

303(d) List, ambient groundwater quality data are drawn from the TWDB

database. The number of wells reporting values for constituents of concern

above the MCL, or between the Minimum Detection Level (MDL) and the

MCL are determined, and these values are posted in a table for each

aquifer, along with the total number of wells sampled in that aquifer. 

The data are augmented by the data taken from the annual Joint

Groundwater Monitoring and Contamination Report that lists

groundwater contamination cases of the regulatory programs of the

TCEQ, Railroad Commission of Texas (RRC) and groundwater

conservation districts. TCEQ reports data for groundwater contamination

related to industrial and hazardous waste sites, municipal solid waste sites,

leaking underground and above ground storage tanks, public drinking

water supplies, wastewater disposal facilities, and other occurrences of

contamination that may not be directly linked to a specific source or

program. The RRC collects and reports data regarding groundwater

contamination that may be related to oil and gas well drilling and

production activities, transmission (pipeline) spills, and surface mining

operations. Groundwater conservation districts typically monitor only

those groundwater contamination cases that are of specific interest to the

individual district, or those that do not fall under the regulatory umbrella

of other agencies.

In 1996, the Texas Groundwater Protection Committee (TGPC) began the

groundwater quality assessment process, through a partnership of the
TCEQ/TSSWCB joint publication SFR-68/04 83

TCEQ and the TWD, two of its member agencies. Assessment of all thirty

aquifers was completed in 2002. Each aquifer in the 2002 Water Quality

Inventory and 303(d) List is represented with a map showing the locations

of water wells sampled and nitrate analyses exceeding EPA drinking water

standards. Tables are included that show the parameters assessed against

EPA drinking water standards, as well as, summaries of the sources and

types of groundwater contamination at regulated facilities. This

information is compiled from data contained in the Joint Groundwater

Monitoring and Contamination Report. 

Nitrate is readily soluble and mobile in water, and is considered one of the

major human health concerns in drinking water. Coincidentally, nitrate

concentration is an indicator of NPS pollution in groundwater, because it

can move readily through the soil and vadose zone, entering aquifers by

means of percolation. The vadose zone is the stratigraphic region between

the soil surface and the water table, or the unsaturated zone. Nitrate in

surface water indicates the potential for groundwater contamination.

Since no water quality standards have been designated for groundwater,

an assessment standard of degradation or impairment with respect to use

must be defined here. For the purposes of the NPS assessment, any

measurements of groundwater quality taken from the aquifers listed in the

Texas Water Quality Inventory and 303d List that exceed the Maximum

Contaminant Levels (MCL) for nitrate in drinking water, are considered to

be an indicator of either nonpoint source degradation or impairment, with

respect to existing or potential use. 

Constituents of concern that are above the Minimum Detection Level

(MDL), but below the MCL, should be watched carefully over several

report cycles. An increase in the number of detections of a constituent can

signal a growing problem, even though the MCL has not been exceeded.

Groundwater that indicates degradation with respect to existing or

potential use will be targeted by the state for additional NPS monitoring

and restoration activities.

The ranking for priority waterbodies that appear in Table B.2 are averaged

and do not reflect the intrinsic vulnerability of outcrop areas and/or known

areas where recharge is occurring. For this reason, spatial examination of

contaminant distribution is vital to any true assessment of aquifer quality

or vulnerability prediction.

Table B.2 ranks the Seymour, Edwards - Balcones Fault Zone in the San

Antonio area, and Edwards - Balcones Fault Zone in the Austin area, as

aquifers having "high" vulnerability rankings. The northern extent of the

Ogallala, and Cenezoic Pecos Alluvium received "low" or low "medium"

rankings, and the Hueco-Mesilla Bolsons rank "low" in the DRASTIC

based aquifer vulnerability ranking scheme. The Joint Groundwater

Monitoring and Contamination Reports document a number of significant
84 TCEQ/TSSWCB joint publication SFR-68/04

impacts to the usable groundwater zone of the Bolsons, and related

investigations indicate a high potential for NPS impacts.

Upon further examination of the data from the Texas Water Quality

Inventory and 303d List, it becomes readily apparent that constituent

values exceeding the MCL occur predominantly in the "outcrop" portions

of any aquifer with "outcrop" (unconfined) and "downdip" (confined)

areas, or in the completely unconfined aquifers like the Ogallala,

Seymour, and Cenezoic Pecos Alluvium. These "outcrop" areas of

aquifers are more vulnerable to NPS impacts.

A spatial context reveals that a disproportionate number of high nitrate

values occur in the Rio Grande Valley area of the aquifer. Therefore, this

portion of the Gulf Coast aquifer must be labeled as impacted by NPS

pollution.

 Sampling sites exceeding an MCL for a given constituent will also be

targeted. These would include the Lipan, Seymour, Marathon, Bone

Spring-Victorio Peak, Edwards-Trinity (High Plains), Blaine, Ogallala,

and Cenezoic Pecos Alluvium aquifers.

Future water quality inventories will contain more specific groundwater

quality assessments for aquifers. This will allow the focus to be more

narrow in determination of potential NPS impacts. The values for nitrate

and other constituents in all reports may be revisited in the case of a

change in the MCL values, as occurred with the 2003 EPA arsenic

evaluation.

Monitoring the Results

The Texas Groundwater Protection Committee (TGPC), through the Texas

Groundwater Protection Strategy, has commissioned the development of a

new statewide groundwater monitoring program that will better evaluate

the effectiveness of regulatory programs in preventing impacts from both

point sources and nonpoint sources. Future activities of the TPGC, and of

its member agencies, may be guided by the results of the new monitoring

program.
TCEQ/TSSWCB joint publication SFR-68/04 85

CHAPTER 6 IMPLEMENTATION

Nonpoint source pollution management makes use of both regulatory and

non-regulatory programs. Regulatory programs establish rules for certain

activities in order to prevent harm to the environment resulting from these

activities. The rules often require notification and reporting to a regulatory

authority when the activity is engaged in, and specific prior authorization

for the activity, such as registration, permitting, or certification.

Regulatory activities also include inspections to determine whether rules

are being complied with, as well as pursuit of apparent violations through

investigations, enforcement activities, and litigation.

Non-regulatory programs do not establish or enforce environmental

protection rules. Non-regulatory programs are voluntary. Regulation of

everyday practices which individuals can use to control some nonpoint

sources of pollution is impractical. In these cases, Texas encourages

voluntary compliance through education and outreach. In addition, the

size and complexity of the problem, low public awareness, and the lack of

rigorous scientific definition of NPS problems make regulation difficult.

Without regulation, a coordinated effort from the highest levels of

government down to the citizens must occur to have an impact and reduce

nonpoint source pollution. 

The Texas Commission on Environmental Quality ( TCEQ) is designated

by law as the lead state agency for water quality in Texas. The Texas State

Soil and Water Conservation Board (TSSWCB) also plays an important

role as the lead agency in the state for the management of agricultural and

silvicultural (forestry) nonpoint source runoff. Local, regional, state, and

federal agencies have specific responsibilities that are critical to the

restoration and protection of polluted water bodies. Non-government

organizations, especially at the watershed level, provide information about

local concerns and infrastructure, and help build support for the kind of

pollution controls necessary to restore water quality.

This chapter describes ongoing programs throughout the state which

address NPS pollution. The programs are conducted by the agencies

described in Chapter 4. This chapter is divided into the following types of

NPS management issues:

# Surface Water Plans

# Groundwater Plans

# Remediation of Contaminated Sites

# Emergency Response and Disaster Recovery

# Hydromodification

# Marinas and Recreational Boating

# Solid and Hazardous Waste Management
86 TCEQ/TSSWCB joint publication SFR-68/04

# Wastewater Management

# Storm Water Management

# Pesticide Management

# Agricultural Management

# Silvicultural Management

# Pollution Prevention

# Protection for Drinking Water Sources

# Aquifer Protection

# Wetlands Protection

# Coastal Programs

# Border Programs

Surface Water Plans

An important tool in managing nonpoint source pollution is the

development of implementation plans. Once the sources or causes of

pollution have been identified through the development of TMDLs or

special studies (described in Chapter 5), an implementation plan must be

developed. Implementation plans describe the management measures

necessary to achieve the pollutant reductions. Management measures

incorporate both nonregulatory and regulatory mechanisms. These

management measures may include permit effluent limits and

recommendations, nonpoint source pollution management practices,

stream standard revisions, special projects, pollution prevention, public

education, and watershed-specific rule recommendations. 

Implementation plans may include both control actions and management

measures. Control actions are point source pollution reduction strategies

like the construction of centralized wastewater treatment facilities.

Management measures are nonpoint source pollution reduction strategies

which are the focus of this document. The best management measures for

each individual watershed are developed in cooperation with regional and

local stakeholders. 

There are two types of plans developed in the State of Texas, TMDL

Implementation Plans and plans developed at the local level called

Watershed Protection Plans. 

Both types of implementation plans describe implementation activities, the

schedule for implementing them, and the authority for the regulatory

measures. It also provides reasonable assurance that the voluntary

practices will be undertaken and identifies partners who may perform

these tasks. For instance, the plan may identify funds needed to implement

voluntary actions. The plan also includes the measurable results that will

be achieved, along with a follow-up monitoring plan to determine its
TCEQ/TSSWCB joint publication SFR-68/04 87

success. Interim results are evaluated to assess progress toward the goal of

the plan. 

Even after plans are fully implemented, it is difficult to accurately predict

how long it will take for improvements to occur in the water body, or how

much improvement will be seen. For this reason, there is a schedule for

phasing in implementation activities, especially those that address

nonpoint sources of pollution. Less expensive, time-tested activities are

implemented first, and their affects are assessed. If the water quality goal

of the plan is not yet achieved, then another round of activities is

implemented. Through this adaptive management approach, the water

body is continually reassessed, and adjustments are made in the

implementation activities as needed to attain the water quality goal of the

plan.

The following elements will be addressed in plans implemented through

the CWA §319(h) Grant Program as required by EPA Guidance:

# a. An identification of the causes and sources or groups of

similar sources that will need to be controlled to achieve the

load reductions estimated in the TMDL.

# b. An estimate of the load reductions expected for the

management measures described in the implementation plan.

# c. A description of the NPS management measures that will

need to be implemented to achieve the load reductions

estimated in the implementation plan, and an identification of

the critical areas in which those measures will be needed to

implement the plan.

# d. An estimate of the amounts of technical and financial

assistance needed, associated costs, and/or the sources and

authorities that will be relied upon, to implement the plan.

# e. An information/education component that will be used to

enhance public understanding of the project and encourage

early and continued participation in selecting, designing, and

implementing the NPS management measures that will be

implemented.

# f. A schedule for implementing the NPS management

measures identified in the plan.

# g. A description of interim, measurable milestones for

determining whether NPS management measures or other

control actions are being implemented.

# h. A set of criteria that can be used to determine whether

loading reductions are being achieved over time and

substantial progress is being made towards attaining water

quality standards and, if not, the criteria for determining

whether the TMDL needs to be revised.
88 TCEQ/TSSWCB joint publication SFR-68/04

# i. A monitoring component to evaluate the effectiveness of

the implementation efforts over time, measured against the

criteria established in the plan. 

TMDL Implementation Plans

Chapter 5 explains how Total Maximum Daily Loads (TMDLs) serve as

part of the assessment process to identify sources and quantities of

pollutant loadings that are preventing a water body from meeting water

quality standards. After a TMDL is completed, an implementation plan is

developed that describes the management measures necessary to achieve

the pollutant reductions identified in the TMDL. The ultimate goal of

TMDL Implementation Plans is the attainment of the water quality

standard, but additional, interim results may be evaluated to assess

progress toward that goal as described above. The development of TMDL

Implementation Plans and implementation of NPS management measures

defined in these plans is a priority for CWA §319(h) funding (described in

Chapter 2). 

Watershed Protection Plans

Watershed Protection Plans, are also developed at the local level to

address water quality issues. Watershed Protection Plans are often based

on special studies conducted to gather more data in certain areas where

problems are known to exist but more intense monitoring is necessary to

determine the source of the problem. 

Watershed Protection Plans are developed by river authorities, cities, or

other local government entities to determine how to best solve the water

quality problems of that area and to define the implementation activities

needed to attain or maintain water quality standards. Priority for CWA

§319(h) funding (described in Chapter 2) is provided to develop and

implement these plans.

Water Quality Trading

The concept of water quality trading has often been discussed as a way to

increase the efficiency of TMDL and Watershed Protection Plan

implementation and/or provide more flexibility for sources required to

achieve extreme load reductions. In the context of TMDL and Watershed

Protection Plan implementation, “water quality trading” refers to

theoretical trading of pollutant allocations among local or regional

sources, and generally does not mean physical transfers of actual effluent

discharge. Arranging pollutant trades amongst watershed sources typically

would require that some entity tracks the trades and keeps the account

balanced to remain within the planned load allocations. The accounting

entity may also need to mediate legal agreements, or disagreements,

between trading partners.
TCEQ/TSSWCB joint publication SFR-68/04 89

Action with regard to water quality trading studies or plans will depend

largely on the initiative of others, and the TCEQ and TSSWCB cannot

stipulate when or if such efforts will occur. However, the TCEQ and

TSSWCB will attempt to cooperate with such efforts in a timely and

helpful manner. The development of a water quality trading program is

optional. Any such effort that uses CWA §319 grant funding will have the

tracking/accounting assurance stipulated in the grant stipulations.

Groundwater Plans

The Texas Groundwater Protection Committee strives to improve or

identify areas where new or existing programs could be enhanced to

provide additional protection for groundwater resources. The committee

actively seeks to improve existing groundwater programs and promotes

coordination among agencies and Groundwater Conservation Districts.

Joint Groundwater Monitoring and Contamination Report 

The TGPC uses many tools to verify pollutant and contamination sources

and develop plans to address the sources. The Joint Groundwater

Monitoring and Contamination Report is essential to this process. The

report is a compilation of all known groundwater contamination cases in

the state and their enforcement status. In general, once groundwater

contamination has been confirmed through regulatory compliance

monitoring, the case will follow a generic sequence of actions until the

investigation concludes no further action is necessary. The sequence of

actions to verify pollutant sources and develop plans based on this report

generally consists of confirmation of the contamination, an investigation

to study the extent, composition, and circumstances of the contamination,

and the planning of corrective action measures based on the investigation.

Groundwater Protection Strategy 

There are no specific programs that routinely examine the quality of water

being consumed by Texans utilizing private/domestic wells, the segment

of Texas' population most likely to be impacted by NPS pollution of

groundwater. Surveys of the groundwater quality of private wells in Texas

are rare; however, studies that have been conducted by various agencies

have indicated that both man-made and naturally occurring contaminants -

(eg fecal coliform, nitrate, radioactive nuclides, pesticides and pesticide

degradation byproducts, arsenic, and other heavy metals) have been found

in some domestic wells at levels that exceed health-based maximum

contaminant levels (based upon a lifetime exposure to the constituent).

The TGPC has prepared the new Texas Groundwater Protection Strategy

(AS-188, February 2003) that details actions to be taken to remedy this

situation and address other aspects of NPS pollution. 
90 TCEQ/TSSWCB joint publication SFR-68/04

The state's groundwater protection efforts are implemented through three

types of groundwater program activities: groundwater protection,

groundwater remediation, and groundwater conservation. 

Protection. Groundwater protection is the first programmatic component

that defines the state's efforts. TWC§26.401 sets out nondegradation of the

state's groundwater resources as the goal for all state programs and asserts

that groundwater be kept reasonably free of contaminants that interfere

with the present and potential uses of groundwater. 

Remediation. The second programmatic component of the state's efforts is

groundwater remediation. Once contamination has occurred, the goal of

remediation programs is to restore the quality of groundwater if feasible.

The remediation of groundwater contamination is accomplished through

the implementation of corrective action plans developed as a result of the

Joint Groundwater Contamination Report, monitoring of the effectiveness

of corrective action measures, and ultimately, the completion of the

corrective action measures.

Conservation. Another component of groundwater programs is

conservation. Groundwater Conservation Districts are the state's preferred

method of managing groundwater resources. Groundwater Conservation

Districts have the authority to adopt and enforce rules, require well

permits, monitor groundwater quality and quantity, and provide public

education. These activities are useful in assisting with the implementation

of the Districts' management plans described above.

Groundwater Conservation Districts 

The legislature has stressed the importance and responsibility of

groundwater conservation districts in developing and implementing

comprehensive management plans to conserve and protect groundwater

resources. Wastewater reuse, desalination, well spacing regulations, brush

control, and other strategies are featured in the plans.

This chapter, and the following two chapters, represents the toolbox of

programs in place throughout the state which attempt to achieve the goals

defined in this management plan through implementation of the defined

milestones. The implementation programs and measures described in the

plan work together to manage nonpoint source pollution in the State of

Texas and are often defined through planning to achieve specific water

quality goals. 

Remediation of Contaminated Sites

Environmental contamination can occur in many ways. Some examples

include, unreported spills of hazardous materials, undetected leaks from

pipes or other malfunctioning industrial equipment, improper disposal of

byproducts of industrial processes, abandoned municipal solid waste
TCEQ/TSSWCB joint publication SFR-68/04 91

landfills, and abandoned, inactive industrial sites. If not remedied, ground

and surface water contamination may occur which can pose environmental

and human health problems. Below is a discussion of several state

programs in place which address remediation of contaminated sites. 

Superfund Program 

The state Superfund program's mission is to remediate abandoned or

inactive sites within the state that pose an unacceptable risk to public

health and safety or the environment, but which do not qualify for action

under the federal Superfund program. The state Superfund program is

administered by the TCEQ.

The TCEQ manages or provides management assistance to the U.S.

Environmental Protection Agency (EPA) with regard to the Superfund

remediation process, after the site is identified as being eligible for listing

on either the state Superfund registry or the federal National Priorities

List. The TCEQ ensures that all Superfund activities are completed in a

timely and efficient manner, and in accordance with all applicable state

and federal laws and rules.

Brownfields Program

In Texas, many former industrial properties lie dormant or underutilized

due to liability associated with real or perceived contamination. These

properties are broadly referred to as brownfields. The TCEQ, in close

partnership with the EPA and other federal, state, and local agencies,

facilitates cleanup, transferability, and revitalization of brownfields. This

is accomplished through the development of regulatory, tax, and technical

assistance tools. In addition, the TCEQ is available at no cost to local

governments to provide technical advice, education, and project partnering

for brownfields redevelopment projects.

Voluntary Cleanup Programs

The Texas Voluntary Cleanup Program (VCP) provides administrative,

technical, and legal incentives to encourage the cleanup of contaminated

sites in Texas. Non-responsible parties, including future lenders and

landowners, receive protection from liability to the state of Texas for

cleanup of sites under the VCP. Therefore, constraints for completing real

estate transactions at those sites are eliminated. Also under the VCP, site

cleanups follow a streamlined approach to reduce future human and

environmental risk to safe levels. As a result, many unused or under used

properties may be restored and become economically productive and

beneficial to the community. 

In addition, the RRC has a Voluntary Cleanup Program, which oversees

the remediation of oil and gas related pollution and provides an incentive

to remediate the pollution through a release of liability to the state in
92 TCEQ/TSSWCB joint publication SFR-68/04

exchange for a successful cleanup. Applicants to the program may not

have caused or contributed to the pollution.

Corrective Action Program 

The mission of the industrial and hazardous waste corrective action

program is to oversee the cleanup of sites with soil and groundwater

contamination from industrial and municipal hazardous and industrial

non-hazardous wastes. This program is administered by the TCEQ. The

goal of this program is to assure that the public is not exposed to

hazardous levels of chemicals by requiring mitigation, and the removal of

contamination to levels protective of human health and the environment.

The RRC is responsible for plugging and cleanup of abandoned wells and

sites. The RRC oversees cleanup by responsible parties of pollution

associated with oil and gas activities under RRC jurisdiction. Funding for

the RRC’s program comes from regulatory fees, permit fees, and bond

fees paid by the oil and gas industry. Cleanup and prioritization of sites is

based on protection of public health, public safety, and the environment. 

Leaking Petroleum Storage Tank Program

The TCEQ is responsible for administering the leaking petroleum storage

tank (LPST) program. The program mission is to oversee the cleanup of

spills from regulated storage tanks by recording and evaluating all

reported incidents of releases of petroleum and other hazardous substances

from underground and above-ground storage tanks. The program goal is to

assure that the public is not exposed to hazardous levels of contamination

by requiring the removal of contamination from LPSTs to levels

protective of human health and the environment. 

Any entity performing or coordinating regulated LPST corrective action

services must be licensed by the TCEQ, as an LPST corrective action

specialist. Any individual who supervises any corrective action required

on a LPST site but is not a qualified professional engineer must be

registered as an LPST corrective action project manager. Corrective action

services include measures to determine and report the extent of a release

in progress, attempts to halt and prevent future releases of regulated

substances, cleanup of surface and subsurface contamination on site, site

closures, post-remediation monitoring, or any other actions reasonably

necessary to protect public health and preserve environmental safety.

Emergency Response and Disaster Recovery 

Nonpoint source pollution can occur as a result of natural disasters or

spills of hazardous materials. Emergency response to these incidents can

reduce the amount of impact pollutants from these activities present to the

environment. 
TCEQ/TSSWCB joint publication SFR-68/04 93

Severe storms can cause loss of vegetation, severe erosion, and runoff of

contaminants, all of which can impact water quality. Clean-up efforts

following severe storms often create large quantities of waste materials,

which place additional pressures on the environment. 

Spills on land are considered an emergency, because chemicals or other

hazardous materials can enter nearby water resources and pose a threat to

the environment and public health. Transportation and storage of

hazardous materials increases the risk of the occurrence of spills. Some of

the programs in the state of Texas that are responsible for response to

spills and recovery from natural and manmade disasters are discussed

below. 

Floodplain Management

Development in some Texas communities has raised the elevation of

portions of the floodplain, increased drainage over impervious surfaces,

channeled runoff away from new growth areas, and caused other physical

changes to the environment. These changes can contribute to the severity

of flooding events, and result in further damage to the environment. 

The TCEQ serves as the state floodplain coordinator and implements the

National Flood Insurance Program (NFIP) in Texas. As part of this

program, the TCEQ provides guidance, support, and training to floodplain

administrators to become participants in the NFIP. TCEQ staff visit

communities throughout the state to provide planning, assistance, and

information to community officials, and help coordinate disaster response

to severe floods. 

The Texas Water Code authorizes cities and counties in the state to adopt

ordinances and court orders to create comprehensive floodplain

management programs designed to protect public health, safety, and the

general welfare of its citizens. To participate in the NFIP, a community

must adopt and enforce a floodplain management ordinance which

prevents new development from increasing the flood threat and protect

new and existing buildings from anticipated flood events.

Local floodplain management programs are responsible for reviewing all

construction plans and conducting inspections of approved projects to

assure conformance with NFIP regulations. NFIP regulations ensure that

construction methods and materials will minimize future flood damage

and impacts to the environment from floods. Best management practices

are required in floodplain areas to provide for water conveyance, and

reduce runoff volumes associated with development. Examples of a few

BMPs used include swales, detention and retention ponds, and infiltration

basins. 
94 TCEQ/TSSWCB joint publication SFR-68/04

Emergency Response Program

The TCEQ Emergency Response team is on call 24-hours a day,

year-round for response to oil and hazardous substance spills,

emergencies, and human-caused disasters. The TCEQ responds to

incidents such as, midnight dumping of abandoned drums, the breakup of

the space shuttle Columbia in the skies over central and east Texas, and

natural disasters.

The TCEQ collaborates with the EPA, the Coast Guard, other state

agencies, counties, cities, local hazardous material teams, fire

departments, law enforcement, and corporate response units. TCEQ staff

lead response efforts when appropriate and provide planning or support. 

The TCEQ assesses health and environmental risks in conjunction with

the Texas Department of State Health Services (DSHS), the Railroad

Commission of Texas (RRC), the Texas Parks and Wildlife Department

(TPWD), Texas General Land Office (GLO) or other experts as necessary.

DSHS identifies communities where people may be exposed to hazardous

substances in the environment, assess a site's hazards, and recommends

actions that need to be taken to protect human health. The RRC is

responsible for response and clean-up of inland oil and gas related spills.

TPWD is responsible for assessing impacts of spills to fish and wildlife.

GLO responds to coastal oil spills.

Some of the services the TCEQ offers in response to spills and other

pollution related emergencies include: 

# assisting water supply officials providing drinking water and

making systems operational; evaluating water quality;

assisting individuals in maintaining private water or sewer

systems; and assessing damages to public drinking water

systems;

# providing information and aid to the State Emergency

Management Council on matters of flood-hazard areas,

floodplain management, flood hydrology, engineering, dam

safety, reservoir operation, water rights and uses, water

quality, and hazardous waste management; 

# making available the services of specialists (floodplain

management, hydrology, meteorology, groundwater geology,

water quality, dam safety, wastewater treatment, water rights

and uses, solid waste management including hazardous waste

and radioactive waste, and emergency response) that may be

of assistance during a disaster; 

# providing spill response maps, as well as maps relating to

flood-hazard areas; 
TCEQ/TSSWCB joint publication SFR-68/04 95

# providing TCEQ data, including data from neighboring states

and Mexico, needed for dealing with a disaster that

transcends the boundaries of Texas; 

# providing support for post-emergency weather and damage

assessment; 

# providing technical assistance to local governments in the

physical siting of disposal facilities for debris including

municipal wastes whenever a disaster generates excessive

amounts of waste; 

# providing cleanup funding as appropriate from funds under

the TCEQ's statutory authorities; and 

# providing contracting resources for cleanups.

To the extent possible, TCEQ ensures that the individuals or entities

responsible for spills bear the cost of clean-up activities. Violators who

intentionally or knowingly allow an unauthorized discharge of pollutants

that causes or threatens to cause water pollution may be prosecuted.

Failure to report a spill is also cause for prosecution.

Coastal Oil Spill Prevention and Response

The Oil Spill Prevention and Response Act of 1991 (OSPRA) designated

the GLO as the lead state agency for preventing and responding to oil

spills in the marine environment. A two-cent-per-barrel fee on crude oil

loaded or off-loaded in Texas supports funding for the GLO's response

efforts. To ensure rapid response, field offices are located along the Texas

coast. In preparation for spills, the program has pre-staged response

equipment in sensitive and geographically advantageous locations. The

GLO's Oil Spill Prevention and Response (OSPR) program functions

include deploying state-owned response equipment, designating

responsible parties, coordinating spill response strategies, investigating the

spill causes, and conducting follow-ups to ensure that appropriate

corrective actions are identified and implemented. The program maintains

a substantial inventory of response equipment. 

The OSPR program maintains an active outreach effort, visiting schools,

associations, and interest groups. The outreach program emphasizes the

environmental impacts of small, chronic spills. Pollution prevention

methods are highlighted in every presentation. In addition, the OSPR

sponsors the Clean Gulf Conference and Exhibition annually to bring

experts from government and industry together to discuss the latest

developments in oil spill technology and the issues facing both responders

and industry.

The OSPR program has also completed construction of four bilge water

reception facilities along the coast. The Oily Bilge Water Reception

Facility Program deters disposal of bilge water containing oil directly into

surface water by providing operators of pleasure and commercial boats
96 TCEQ/TSSWCB joint publication SFR-68/04

with disposal facilities. In addition, the GLO has increased its presence

with additional boat and harbor patrols. The OSPR program maintains a

comprehensive, unannounced oil spill drill and audit program designed to

measure the readiness level of all sectors of the oil handling community: 

deep draft vessels, pipelines, and shore-based facilities. 

The OSPR program is one of only a few state programs in the nation that

funds oil spill prevention and response-related research. The Shoreline

Environment Research Facility (SERF) enables oil spill researchers to

conduct biological and chemical experiments in nine tanks that are

capable of simulating a variety of coastal environments. The American

Petroleum Institute has conducted two of the first "field conditions"

dispersant experiments at the SERF facility, and works with program

personnel to perfect response strategies for maritime applications.

The Texas Automated Buoy System (TABS) was developed to assist in

predicting the movement of oil in offshore environments. Nine offshore

buoys transmit real time ocean current data, which is then fed into

computer trajectory models to produce a predicted pattern of oil

movement. 

To increase spill preparedness and streamline the OSPR program, the

On-Line Vessel database was created to enable vessel operators to register

response and preparedness information electronically, rather than submit

hard copy plans. 

The Texas Oil Spill Planning and Response Toolkit , produced by the

OSPR program, with assistance from the Coast Guard, is the most

comprehensive oil spill preparedness tool available. The toolkits are

comprised of sensitivity maps, local knowledge guides, forms, and Area

Contingency Plans for all of Texas. The program publishes the toolkit as

both a downloadable program and CDRom. The toolkit is updated

annually and is widely distributed free of charge throughout the Gulf

Coast.

Kills and Spills Team

The Texas Parks and Wildlife Department (TPWD) has assembled a Kills

and Spills Team (KAST) comprised of biologists and team members

headquartered in and assigned to five regions across Texas. The KAST

assumes four key responsibilities: 1) respond to fish and wildlife kills and

pollution incidents, including oil and hazardous material spills; 

2) minimize environmental degradation resulting from pollution incidents

and fish and wildlife kills; 3) obtain compensation, repair, and restoration

for environmental damage; and, 4) act as a technical resource with respect

to relationships between water quality, habitat, and living organisms.

The majority of incidents the KAST team responds to are fish kills.

Natural causes responsible for fish kills include extreme weather

temperatures, bacteria and disease, and toxic algal blooms. The actions of
TCEQ/TSSWCB joint publication SFR-68/04 97

humans can result in fish and wildlife kills through the introduction of

toxic chemicals, pesticides, fertilizers, and contaminated storm water

runoff. Low dissolved oxygen concentration is another cause of fish kills.

Low dissolved oxygen concentrations may be natural or ma-induced. Low

dissolved oxygen can result from large amounts of plant life depleting

oxygen levels during the night. Other causes of low dissolved oxygen

include hot, still days, dams, and dead end canals. A fish or wildlife kill is

physical evidence that something is wrong. The sooner it is reported, the

sooner it can be investigated and remedied.

A fish or wildlife kill is physical evidence that something is wrong. The

sooner it is reported, the sooner it can be investigated and remedied.

Immediately after a kill or spill is reported, an investigation begins to

determine the source of a spill or the cause(s) of a kill. Though differences

exist between investigating fish and wildlife kills and spills, the need for

prompt response and accurate analysis applies in either case. Crucial

details can be lost in a short amount of time. In addition, factors that may

seem insignificant such as weather, vegetation, algal blooms, water

chemistry, water flow, and pollution, can have serious impacts to an

ecosystem when they change rapidly. Therefore, TPWD biologists must

pay close attention to details, follow proper sampling procedures, and

keep valid records. For large pollution events, TPWD biologists often

work together with other state and local authorities. 

Often in the case of a kill or spill, a responsible party is identified as

having caused the incident. The responsible party may be asked to make

restitution for the ecological damages. Restitution may consist of a 

monetary payment for the value of fish or wildlife killed, or may be some

project that restores value to the ecosystem. 

Hydromodification

Hydromodification is defined by EPA as the alteration of the hydrologic

characteristics of surface waters. Hydromodification may cause

degradation of water resources. Three general types of hydromodification

contribute to nonpoint source pollution: 

Channel modification. Channel modification describes river and stream

channel engineering undertaken for the purpose of flood control,

navigation, drainage improvement, and reduction of channel migration

potential. Activities such as straightening, widening, deepening, or

relocating existing stream channels fall into this category. This term also

refers to the excavation of borrow pits, canals, underwater mining, or

other practices that change the depth, width, or location of waterways or

bay formations in coastal areas. Channelization and channel modification

activities can diminish suitability of instream and streamside habitat for

fish and wildlife. They can also result in reduced flushing, lowered

dissolved oxygen levels, saltwater intrusion, loss of streamside vegetation,

accelerated discharge of pollutants, and changed physical and chemical
98 TCEQ/TSSWCB joint publication SFR-68/04

characteristics of bottom sediments in surface waters. In addition,

hardening of banks along waterways can increase the movement of NPS

pollutants from the upper reaches of watersheds into downstream or

coastal waters.

Dams. Dams are defined as constructed impoundments that are either (1)

25 feet or more in height and greater than 15 acre-feet in capacity, or (2) 6

feet or more in height and greater than 50 acre-feet in capacity. Dams can

adversely impact the quality of the surface waters and habitat in the stream

or river where they are located. A variety of impacts can result from the

siting, construction, and operation of these facilities. Construction

activities from dams can cause increased turbidity and sedimentation in

the waterway resulting from vegetation removal, soil disturbance, and soil

rutting. The operation of dams can also generate a variety of types of

nonpoint source pollution in surface waters. Controlled releases can

change the timing and quantity of freshwater inputs into coastal waters,

reduce downstream flushing, and create sediment deposition downstream

of the dam. Dam releases can result in erosion of the streambed and

scouring of the channel below the dam. Finally, reservoir releases can

alter water temperature and lower dissolved oxygen levels in downstream

waterbodies.

Streambank erosion. Streambank erosion refers to the loss of land along

streams and rivers. The force of water flowing in a river or stream causes

erosion. Eroded material can be carried downstream and deposited in the

channel bottom or in point bars located along bends in the waterway.

These deposits can have adverse impacts on the creation and maintenance

of riparian habitat. Excessively high sediment loads can smother

submerged aquatic vegetation, cover shellfish beds and tidal flats, fill in

riffle pools, and contribute to increased levels of turbidity and nutrients.

The State of Texas achieves protection of water resources from

hydromodification activities through a mixture of management measures.

Below are examples of some of the programs that implement these

measures.

Clean Water Act §401/404 Water Quality Certification

CWA§401 provides for the protection of the state's surface water

resources by ensuring that federal discharge permits are consistent with

the Texas Surface Water Quality Standards. Under CWA§401, states are

given the authority to review federally permitted or licensed activities that

may result in a discharge of pollutants to waters of the U.S., such as the

discharge of dredge or fill material. CWA§401 is a cooperative

federal/state program that gives states authority to review federal activities

in or affecting state waters and reflects the state's role at the forefront in

administering water quality programs.
TCEQ/TSSWCB joint publication SFR-68/04 99

Only those activities that require a federal permit are subject to state

review for §401 certification. However, any federally authorized activity

which may result in a discharge is subject to CWA§401 certification. An

important type of permit subject to CWA§401 certification is the U.S.

Army Corps of Engineers (Corps) CWA§404 permit for discharges into

wetlands or other navigable waters.

Before issuing a federal permit in Texas, the permitting agency must

receive, from TCEQ or RRC, certification , conditional certification, or

waiver stating that the discharge will not violate the Texas Surface Water

Quality Standards. If the state denies certification, the federal permit is

also denied. The TCEQ is responsible for certifying most federal permits,

except for federal permits related to oil and gas production, which are

certified by the Railroad Commission of Texas (RRC). The RRC certified

permit activities include dredging an access channel to conduct drilling or

production operations in a critical area; construction of a drilling pad or

installation of a production platform in a critical area; or construction,

operation, or maintenance of a crude oil or natural gas pipeline facility in

waters of the state. The Texas Parks and Wildlife Department participates

in the review of CWA§404 permits and CWA§401 wetland certifications

to determine effects on fish and wildlife, and wetland habitats. 

The CWA§401 certification program also plays an important role

protecting coastal resources under the Texas Coastal Management

Program (CMP). The CMP is designed to accomplish the goals set by the

state legislature for coastal resource protection and to meet specific

requirements for an approved plan under the federal Coastal Zone

Management Act (CZMA). Certain activities, such as discharges

authorized by CWA§404 permits, must be consistent with the state CMP

when they occur within the coastal zone boundary. CWA§404 permits

often involve impacts to coastal wetlands. Efforts to avoid and/or

minimize adverse impacts to wetlands are taken to retain the important

functions these water bodies provide for wildlife and aquatic habitat.

Water Rights Permit Review

Water flowing in Texas' creeks, rivers, and bays is public property;

however, the State of Texas confers on individuals and organizations the

right to pump water from a stream, creek, pond, or lake or to impound

water in a lake or pond, under the authority of Chapter 11 of the Texas

Water Code. With a few exceptions, surface waters may be used only with

explicit permission of the state, granted in the form of water rights. Water

rights projects have the potential to cause, amplify, or exacerbate nonpoint

source problems through flow modification, dam construction, sediment

load alteration, loss of wetlands, and removal of riparian vegetation. 

Each application for a water rights permit is reviewed for administrative

and technical requirements by the TCEQ to evaluate its impact on other

water rights, bays and estuaries, conservation, water availability, public
100 TCEQ/TSSWCB joint publication SFR-68/04

welfare, etc. TCEQ assesses the effects that the issuance of a water rights

permit will have on existing instream uses including, water quality, fish

and wildlife habitat, recreation, and freshwater inflows to bays and

estuaries. In addition, Texas Parks and Wildlife Department reviews water

rights applications, and is required by law to provide recommendations for

permit conditions, mitigation, and schedules of flow or releases to protect

fish and wildlife resources (Parks and Wildlife Code 12.024).

Factors that the TCEQ evaluates when performing an assessment of a

water rights permit include the perennial nature of the stream, aquatic life

use and biological integrity of the stream, water quality issues, presence of

species of concern, and recreational uses. In addition to setting streamflow

restrictions, mitigation may be recommended for altered, inundated, or

destroyed terrestrial or riparian wetland habitats. The results of these

assessments are incorporated into limitations and/or special conditions

attached to water rights permits in order to protect the environmental

integrity of the impacted stream reach.

Marinas and Recreational Boating

Marinas and boating activities can be sources of nonpoint source

pollution. Texas has over 350 coastal and inland marinas statewide

encompassing slips and storage for more than 57,000 boats. Marinas, if

not sited and constructed properly, can destroy wetlands, aquatic habitat

and submerged aquatic vegetation, and can also restrict or alter water

flows. Improper siting and construction can also lead to decreased

dissolved oxygen levels and increases in pollutant concentrations.

Activities that occur at marinas can create sources of nonpoint pollution

including petroleum hydrocarbons such as fuel and oil. These substances

can enter surface water directly from spills during refueling, may be

present in bilge discharge, or can be transported in storm water runoff

from these facilities. Other potential pollutants include copper and tin

which are used in antifoulants used to prevent fouling of the submerged

portions of ships, and iron and chrome which are contained in boats

themselves. These substances may enter the water during boat cleaning. 

Recreational boating can also degrade water quality and destroy aquatic

habitat. Sewage, waste from fish cleaning, and food waste discharged

from boats, either accidental or intentional, can lower dissolved oxygen

levels, increase nutrients and impact aquatic life. In addition, discharges of

sewage can elevate fecal coliform bacteria to levels that are unsafe for

swimming and fishing. Some of the programs in place to address the

nonpoint source problems resulting from marinas and recreational boating

activities are discussed below.

The Clean Marina Initiative

The Clean Marina Initiative is a voluntary, incentive-based program

promoted by the National Oceanic and Atmospheric Administration
TCEQ/TSSWCB joint publication SFR-68/04 101

(NOAA) and others that encourages marina operators and recreational

boaters to protect coastal water quality by engaging in environmentally

sound operating and maintenance procedures. NOAA is jointly

responsible for administering the Coastal Nonpoint Control Program with

EPA, and plays an important role in protecting coastal waters from

polluted runoff. The Coastal Nonpoint Program establishes a consistent set

of management measures for all coastal states to use in controlling

nonpoint source pollution. Management measures are designed to prevent

or reduce runoff from a variety of sources, including marinas.

NOAA recognizes that the Clean Marina Initiative can serve a valuable

role in protecting coastal waters from nonpoint source pollution and has

promoted the program as a way for states to meet many of the marina

management measure requirements under the Coastal Nonpoint Program.

As a result, the Coastal Nonpoint Program has been responsible for

driving the development of most of the state Clean Marina Programs

existing today and developing a national interest in the initiative. NOAA

continues to support the Clean Marina Initiative through targeted grant

funding to states developing Clean Marina Programs.

The Clean Texas Marinas Program

The Clean Texas Marinas Program is a proactive partnership designed to

encourage marinas, boatyards and boaters to use simple, innovative

solutions to keep Texas coastal and inland water resources clean. The

basic goal of the program is pollution prevention by increasing awareness

of environmental laws, rules, and jurisdictions, and increasing the number

of designated Texas Clean Marinas. To be designated as a Texas Clean

Marina and be recognized for environmental stewardship, marina owners

are asked to identify opportunities and implement best management

practices to control pollution associated with:

# Vessel maintenance and repair

# Petroleum storage and transfer

# Sewage disposal

# Solid, liquid and hazardous wastes

# Stormwater runoff

# Facilities management

The program also offers information, guidance, and technical assistance to

marina operators, local governments, and recreational boaters on best

management practices (BMP's) that can be used to prevent or reduce

pollution. The Clean Texas Marinas Program was developed by the Texas

Sea Grant College Program in partnership with the GLO, TCEQ, Marina

Association of Texas, the Marina Advisory Board, and others. 
102 TCEQ/TSSWCB joint publication SFR-68/04

Solid and Hazardous Waste Management

Many county unincorporated areas in the state do not have organized

waste collection services. Illegal dump sites are generally easily accessible

to vehicles, somewhat hidden from view, and are perceived to be a

no-man's land where dumping is permissible without costs. Approximately

70% of these sites are located in drainage swales or in creeks, resacas, or

arroyos. Irrigation canals are also subjected to illegal dumping.

Environmental risks associated with illegal dumping and burning of solid

waste include: surface and groundwater contamination; impact to wildlife

and aquatic habitat; impact on endangered or threatened plants, animals,

and species; and air pollution from open burning, especially in areas of

concentrated population. Leachate from illegal dumping sites can

contaminate water supplies, as can ash with concentrated contaminants

created during illegal burning. Burn sites are often buried, creating

potential for future water contamination.

Over one-fifth of the trash going to landfills in Texas is made up of yard

trimming and vegetative food material. These materials can be used,

instead of being wasted, as an organic, environmentally-friendly substitute

for home chemical fertilizers. Practices by homeowners, such as the use of

mulching lawnmowers and home composting, can reduce the amount of

yard waste entering landfills. Manure from animal waste and sludge from

human waste can also be used in this way. Private enterprise can make use

of these materials to produce compost on the commercial level.

Another NPS contributor associated with waste management is the

improper disposal of hazardous waste. Hazardous waste comes from

industry, manufacturing, and households. Hazardous waste comes in many

different shapes and forms. Chemical, medical, and furniture processing

are some examples of processes that produce hazardous waste. Household

products that contain corrosive, toxic, ignitable, or reactive ingredients

such as paints, cleaners, oils, batteries, and pesticides are also hazardous

wastes that contribute to NPS pollution. Oversided containers for

household products can contribute to NPS due to overuse to get rid of the

product, storage which can be unsafe, and improper disposal. 

Hazardous and solid wastes, if not disposed of properly, can pollute the

environment and pose a threat to human health. The State of Texas has

several programs in place to address hazardous and solid waste

management. 

State Solid Waste Permitting Programs

With a few exceptions, the TCEQ uses permitting to regulate the storage,

transport, processing, and disposal of solid waste in Texas to prevent

nonpoint source releases to the environment. TCEQ rules require that

solid waste be processed and disposed of only in authorized facilities. 
TCEQ/TSSWCB joint publication SFR-68/04 103

The TCEQ randomly audits a portion of waste stream notifications in

order to ensure proper classification and coding of waste in Texas.

Hazardous waste is defined as any solid waste listed as hazardous or

possesses one or more hazardous characteristics as defined in federal

waste regulations. Industrial waste is waste that results from or is

incidental to operations of industry, manufacturing, mining, or agriculture.

Under the definition of a waste, certain materials recycled in certain ways

are excluded from being considered waste while others are not. 

Facilities that aggregate, process, and return to use source-separated,

non-putrescible recyclable materials from the municipal solid waste

stream are exempt from permitting or registration requirements. All other

recycling facilities must be authorized by the TCEQ.

The TCEQ certifies Municipal Solid Waste (MSW) technicians. The

operating permits of most MSW facilities, including landfills, transfer

stations, processing facilities, and recycling and resource recovery

facilities, require the presence of a certified MSW technician. The

responsibilities of an MSW technician include the proper screening,

handling, transportation, collection, storage, and disposal of municipal

solid waste.

The Beneficial Use Sludge Permitting Program

Sewage sludge, also known as biosolids, must be properly processed,

transported, and used or disposed of in order to prevent adverse

environmental and public health impacts. Sludge is the material that

remains after bacteria has digested the human waste from municipal water

and wastewater treatment plants. Sludge can also originate from septic

tanks, chemical toilets, grease and grit traps. 

Because of the nutrient and soil-conditioning characteristics of most

biosolids, local governments are encouraged to consider beneficial land

application or composting of sludge. An activity to land-apply Class B

biosolids for a beneficial use must be authorized by the TCEQ. An activity

to land apply Class A biosolids (e.g. compost) for beneficial use does not

require authorization by TCEQ. Beneficial use is defined as the land

application of treated municipal sludge at or below the agronomic needs of

a cover crop or the use of water treatment sludge as a soil amendment.

Because some municipal wastewater treatment plants also receive

industrial wastewater, sewage sludge can contain pesticides and chemicals

along with human waste. A permit is required for most activities that

involve the processing, transportation, beneficial use, or disposal of

sludge. If a sludge is not of domestic origin, it is regulated as either a

municipal solid waste or an industrial solid waste.
104 TCEQ/TSSWCB joint publication SFR-68/04

The Illegal Disposal Abatement Program

To successfully address illegal dumping problems, communities must

develop long-term comprehensive solutions. The TCEQ has developed a

model approach for use in developing solutions for illegal dumping and

other municipal solid waste problems. This model approach focuses on

developing and maintaining a program that includes the following four

components:

# Garbage collection services. Provide residents with

convenient and affordable ways to dispose of their garbage,

such as citizen collection stations for rural communities.

# Public awareness campaigns. Increase public awareness on

the health and safety hazards of illegal dumping and

available legal options for garbage disposal.

# Cleanup of existing dumps. Clean up illegal dump sites to

discourage other dumpers, who are attracted to these existing

sites, and to improve the community's awareness of the

problem.

# Enforcement. Increase the cost of illegal dumping through

increased enforcement and more severe punishments for

offenders.

The TCEQ has an extensive outreach campaign to address the issue of

illegal dumping. The TCEQ also provides funding to Councils of

Government (COGs) through the Regional Solid Waste Grant program.

Funds for the grant program are generated by state fees on Municipal

Solid Waste (MSW) disposed of at landfills. The COGs use the funds to

develop an inventory of closed MSW landfills; conduct regional

coordination and planning activities; provide technical assistance and

informational programs pertaining to solid waste management; serve as

central point of contact for solid waste management outreach, education,

and training programs; maintain a regional solid waste management plan;

and administer pass-through grant programs to provide funding for

regional and local MSW projects.

Texas Environmental Enforcement Task Force

Intentional damage to the environment is a serious threat to the public's

health and safety. In many cases, offenders favor rural areas or

low-income neighborhoods for environmental crimes such as illegal

dumping. The most common environmental crimes involve the dumping

of various pollutants like septic waste, household garbage, used motor oil,

auto batteries and barrels of hazardous waste. 

Texas is a national leader in the investigating and prosecuting of

environmental crime. This distinction is a direct result of the formation of

the Texas Environmental Enforcement Task Force. The task force's sole
TCEQ/TSSWCB joint publication SFR-68/04 105

responsibility is to combat environmental crime, both directly and by

informing and training Texas peace officers.

Each year TCEQ dedicates a week to educating Texas about

environmental damage caused by dumping and other illegal pollution.

Activities during the week include educational forums with community

groups and law enforcement, a traveling exhibit on preventing

environmental crime, police officer training, and a ceremony recognizing

environmental crime fighters. Training sessions for police officers cover

state and federal environmental statutes and emphasize the differences

between criminal and civil cases. Primary instruction includes evidence

collection and the use of scientific and technical expertise. Officers are led

through re-enactments of illegal discharges and the execution of a search

warrant. 

The TCEQ heads up the Texas Environmental Enforcement Task Force

with TPWD, Attorney General's Office, GLO, RRC, and the Governor's

Office. While operating as a task force, these state agencies coordinate

with various U.S. Attorney's Offices, the EPA, and the FBI. Task force

membership has expanded to include a dozen more state, federal, and local

entities. The task force meets bimonthly to review referrals for

investigations. Tips come from many sources: employees at the offending

company, business competitors, or task force members who come across

leads. If the environmental task force adopts a case, each member agency

appoints an investigator and the group consults with prosecutors to

determine whether the case is better suited for state or federal courts. The

participating agencies collaborate in conducting searches, taking and

analyzing samples, and performing other functions necessary to support

criminal investigations and prosecutions.

Citizen Complaints

Responding to complaints from the general public about alleged

environmental violations is an important part of TCEQ's regional office

responsibilities. Each complaint is assigned a priority status to ensure that

staff respond to the most environmentally serious complaints first. TCEQ

has established procedures by which staff will investigate complaints once

the most appropriate course of action is determined. An investigation may

take the form of an on-site inspection or sampling. 

Complaints are categorized as follows:

# conditions relating to air quality such as odor, dust, and smoke 

# conditions that create a potential to pollute the water or land

# alleged violations of TCEQ permits or rules

# smoking vehicles

# spills
106 TCEQ/TSSWCB joint publication SFR-68/04

# other environmental concerns

Matters not within TCEQ jurisdiction will be referred to the appropriate

state agency. The TCEQ does not have the authority to regulate, enforce,

or mediate private actions between citizens.

Citizen Environmental Watch

The Citizen Environmental Watch Program allows information gathered

by private individuals to be developed as evidence of environmental

violations. This program provides an opportunity for citizens to get

involved with environmental protection.

The program is implemented by the TCEQ regional offices. Regional staff

review the complainant's information—such as photos, videotapes, and

water samples—and decide on the appropriate course of action. If

necessary, an investigator will visit the site or facility in question.

Individuals must be willing to disclose their identities and, in some cases,

asked to testify. Strict agency procedures for gathering and preserving

evidence must be followed. The TCEQ can pursue an enforcement action

only if the evidence is admissible at a hearing, based on Texas rules of

evidence. The agency will not consider information gathered illegally.

If a serious or unresolved violation is found, the TCEQ will initiate an

enforcement action. Individuals providing evidence in an enforcement

case will be notified of the results of the investigation and any follow-up

enforcement actions.

Composting

Compost is produced by aerobic decomposition of organic matter.

Compost feedstock may include, but is not limited to, leaves and yard

trimmings, biosolids, food scraps, food-processing residuals, manure or

other agricultural residuals, forest residues, bark, and paper. Composting

benefits water quality by saving landfill capacity, reducing the use of

chemical fertilizers, improving manure management which aids in the

reduction of phosphorus and bacteria concentrations due to storm water

runoff from dairy farms, and promoting establishing vegetation which

helps reduce NPS pollution from rainfall runoff. 

The TSSWCB and the TCEQ partnered to initiate an innovative solution

to water quality problems in the North Bosque and Leon watersheds, the

Composted Manure Incentive Program (CMIP). Storm water runoff

containing manure from dairy farms is a significant source of phosphorous

and bacteria in the two watersheds. Incentive payments, funded by CWA

§319 funds, are given to governmental entities towards the purchase of

eligible composted manure to be used in beneficial uses. The ultimate goal

of the project is to ensure that markets are in place to support the

continued export of manure from these two watersheds after rebate funds
TCEQ/TSSWCB joint publication SFR-68/04 107

have been exhausted. The Texas Department of Transportation (TxDOT)

uses the compost throughout the state to promote establishment and

maintenance of roadside vegetation. 

The TCEQ provides outreach and technical assistance in the use of

compost throughout the state. The outreach program provides workshops,

demonstrations, and technical assistance specifically addressing the

benefits, opportunities, and incentives for using composted manure. The

TCEQ has an expanded outreach program in the North Bosque and Leon

watersheds that is conducted in conjunction with the CMIP. 

The Texas Cooperative Extension also has an expanded education and

marketing campaign for composted manure. This campaign effort has

surveyed existing and potential markets for composted manure in the

CMIP watersheds, organized a comprehensive education and marketing

campaign focused on these markets, and begun field trials and

demonstrations to document and publicize the effectiveness of the

appropriate uses of composted manure in a wide array of landscaping,

horticultural, and agricultural applications. 

Used Oil Recycling

Texas law prohibits dumping used oil on land or into sewers or

waterways. This includes the use of used oil as a dust suppressant. Texas

has also banned used oil filters from being placed in or accepted for

disposal in a landfill. TCEQ requires all transporters, handlers, and

collection centers for used oil to register with the agency and report annual

quantities of used oil handled. A facility which accepts used oil from

household do-it-yourselfers may be exempted from the state fee on the

sale of new automotive oil.

Oil and Gas Waste Management

The Railroad Commission of Texas (RRC) regulates activities and the

wastes generated as a result of activities associated with the exploration,

development, or production of oil or gas or geothermal resources,

including transportation of crude oil or natural gas by pipeline. These

wastes are termed “oil and gas wastes”, and include both hazardous and

non-hazardous oil and gas wastes.

The RRC has responsibility for the prevention of pollution that might

result from activities associated with exploration, development, and

production of oil, gas, or geothermal resources of the State to prevent

operations dangerous to life or property. The RRC uses rule-authorization

and permitting to regulate the storage, transport, processing, and disposal

of oil and gas wastes in Texas to prevent releases to the environment.

RRC rules require that oil and gas wastes be processed and disposed of

only in an authorized or permitted manner RRC’s environmental and

safety programs cover drilling, operation, and plugging of wells;
108 TCEQ/TSSWCB joint publication SFR-68/04

separation and treatment of produced fluids in the field or at natural gas

processing plants; storage of crude oil before it enters the refinery;

underground storage of hydrocarbons in slat caverns or natural gas

depleted reservoirs; transportation of crude oil or natural gas by pipeline;

drilling, operation and plugging of brine wells; and storage, hauling,

reclamation, or disposal of wastes generated by these activities.

The RRC’s environmental and safety regulations for oil and gas wastes are

administered through the Environmental Services, the Well Plugging, the

Site Remediation and Special Response, and the Compliance programs.

The Environmental Services program includes permitting programs for

management of wastes and protection of the public from surface storage or

disposal, disposal and enhanced recovery wells, underground hydrocarbon

storage and brine mining. The Environmental Services program also

coordinates with other state and federal agencies on environmental and

safety matters. The Compliance program coordinates the activities of nine

district offices in inspecting oil and gas operations and enforcing the

RRC’s environmental and safety rules. The Well Plugging and the Site

Remediation and Special Response programs handle special Oil Filed

Cleanup Fund (OFCUF). The OFCUF is supported by the oil and gas

industry through various fees, taxes, and penalties. The Site

Rememdiation and Special Response program also reviews operator

cleanup activities and coordinates the RRC’s response to large spills an

other major events.

The TCEQ Household Hazardous Waste Management

Program

TCEQ’s Household Hazardous Waste (HHW) Management program

primarily regulates HHW collections and programs. Technical and

regulatory information is also provided to entities on setting up HHW

collection programs as well as general information to citizens of Texas on

HHW issues. Quarterly meetings of a HHW managers network are also

coordinated.

Tire Disposal Program

Scrap tires must be managed to prevent fires and control disease vectors

(mosquitos and rats). The toxic air pollutants from tire fires can become

nonpoint source water pollutants through atmospheric deposition. Prior to

Texas' scrap tire management program, large illegal tire dumps often

appeared on the beds and banks of streams, damaging riparian habitat. The

TCEQ regulates the collection, processing and recycling/disposal of over

20 million tires discarded each year in Texas. Anyone who stores more

than 500 scrap tires must register with the TCEQ as a scrap tire storage

site. Scrap tires must be hauled by a registered transporter to either a

permitted landfill or an authorized scrap tire facility. All facilities must

keep manifest records showing the disposition of scrap tires.
TCEQ/TSSWCB joint publication SFR-68/04 109

The City of San Antonio Waste Management Programs

The City of San Antonio's Household Hazardous Waste (HHW) Program

operates a permanent HHW Drop-off Center (DoC). This service provides

an environmentally safe means for citizens to dispose of items such as

paint, pesticides, oil, anti-freeze, batteries and household cleansers. If

thrown in the regular trash, these items could potentially harm the solid

waste collectors and contaminate our environment. The program has

developed an outreach campaign, "Take it to the Doc!", that urges the

public to dispose of hazardous household waste properly by bringing it to

the HHW DoC. 

All collected HHW materials are handled and packaged for disposal by

technically trained personnel. Following collection, the transport of all

materials is performed by a licensed hazardous materials transporter. The

method of disposal depends upon the type of material. Approximately

80% of all materials collected through the City of San Antonio HHW

Program are recycled. Materials that cannot be recycled are disposed of by

a licensed hazardous materials treatment, storage and disposal facility.

City of Austin Biosolids Composting

Another innovative strategy for wastewater management was developed

by the City of Austin in the 1950's. Originally established as a series of

stabilization ponds used to treat wastewater residuals from the city's

wastewater plants, the Hornsby Bend Beneficial Reuse Program has

become a nationally recognized, EPA award-winning sludge-recycling

facility.

Situated on 700 acres of land along the Colorado River, about 10 miles

east of downtown Austin, the facility is a national model for innovative

approaches to solving environmental problems. Each year, thousands of

tons of wastewater sludge is anaerobically digested and composted into an

EPA-certified soil conditioner called "Dillo Dirt". Waste products (tree

trimming and yard waste), which would ordinarily be disposed of in a

landfill, are utilized as bulking agents, significantly reducing the cost of

waste disposal for Austin residents. This popular product is distributed to

various city departments for use in park facilities and to commercial

vendors for sale. 

Water separated from the sludge flows through a 250-acre facultative

pond system. After polishing in a 4-acre greenhouse enclosed aquatic

plant facility, the treated effluent is used to irrigate approximately 160

acres of a 220-acre on-site farm. Hay and other feed crops are harvested

from this land by a contract farmer, and the city receives a portion of the

profits. Some digested and dried sludge is also land applied to the on-site

farm to improve soil conditions. Plans are underway for the program,

regulated by the TCEQ, to be expanded to off-site agricultural locations.
110 TCEQ/TSSWCB joint publication SFR-68/04

Wastewater Management

Municipalities, industries, and agricultural operations can produce large

volumes of wastewater. Unless proper disposal methods are used,

wastewater can contaminate the state's surface and ground waters by

contributing pathogens, organics, and metals to stormwater runoff. 

Multiple segments around the state are not meeting water quality criteria

and improperly treated on-site sewage (OSSF) effluent has been identified

as a major nonpoint source contributor. Historically, individual OSSFs 

were found primarily in rural areas. However, rapidly increasing urban

populations, combined with shifts in population from rural to urban areas,

have led to pressure for widespread suburban development. One way to

reduce the amount of NPS pollution resulting from on-site sewage effluent

is to develop centralized wastewater collection and treatment facilities.

These facilities are regulated in Texas by the TCEQ to ensure that the

effluent they release into the waters of the state is treated to certain

standards that minimize NPS pollution. This is an example of a point

source solution to a nonpoint source problem. 

Raw sewage and wastewater can increase levels of nutrients in water.

Elevated nutrient concentrations encourage algal growth and decrease

dissolved oxygen. Low dissolved oxygen endangers aquatic plants and

animals. Following is a discussion of some of the programs in place to

manage nonpoint source pollution from wastewater. 

The On-Site Sewage Facility Program

About 50,000 on-site wastewater treatment systems are installed annually

in Texas to treat wastewater from rural and suburban homes and small

businesses. An on-site wastewater treatment system collects, treats and

applies wastewater to soil. By definition, wastewater managed by an

on-site system cannot leave the property where it is generated. Texas has

approximately 4-5 million households relying upon on-site sewage

facilities (OSSF) for wastewater disposal and the numbers are increasing

each year. 

The Texas legislature passed legislation to regulate on-site sewage facility

systems statewide. The law established parameters for delegation of

authority to regional and local governments-such as counties, cities, river

authorities and special districts to implement and enforce on-site sewage

regulations with approval and oversight by the TCEQ. The TCEQ sets

minimum standards, local authorities can adopt more stringent rules if

approved by the TCEQ. 

The TCEQ provides technical assistance for designers and installers of

OSSF systems by reviewing plans to ensure that new facilities are

designed and constructed using best current technology. TCEQ staff

conduct plan reviews, installation inspections, and follow up inspections
TCEQ/TSSWCB joint publication SFR-68/04 111

to ensure that designated controls are used and compliance with

regulations is achieved. These inspections also assist in pinpointing areas

of concern. Existing, failing systems are generally identified by citizen

complaints and required to be brought to current standards. TCEQ staff

also provide oversight of delegated local authorities.

The TCEQ is also responsible for the certification of inspectors and

installers of OSSFs. The responsibilities of a registered installer include

the installation of treatment tanks and the installation or replacement of

sewer lines or disposal components according to minimum state standards

or the more stringent conditions in the authorized agent's order or

ordinance. OSSFs must be constructed by licensed individuals who have

been properly trained in appropriate installation procedures. Any

individual who is compensated by another individual to construct, install,

alter, or repair an on-site sewage facility must be licensed as an installer.

Individuals who manage the on-site sewage program for an authorized

agent must be licensed as a "designated representative." Designated

representatives review planning materials, issue permits to construct,

investigate and resolve complaints, initiate enforcement on violators, issue

authorizations to operate, maintain records, and submit reports as required.

The Texas On-Site Wastewater Treatment Research Council 

Meeting the research and technology transfer needs of individuals

involved in wastewater treatment in Texas is the major goal of the Texas

On-site Wastewater Treatment Research Council. The Council was

established by the Legislature to fund research that demonstrates the

feasibility of on-site treatment alternatives. The Council awards

competitive grants to accredited colleges and universities in Texas,

governmental entities, or other acceptable public or private entities.

Research funded by the grant must be for improvement in the quality, and

reduction in cost, of on-site wastewater treatment technologies provided to

Texans. The Council also awards grants to enhance technology transfer

regarding on-site wastewater treatment by using educational courses,

seminars, symposia, publications, and other forms of information

dissemination. To support the research program, a $10 fee is charged to all

property owners in Texas who apply to construct OSSFs for treatment and

disposal of wastewater. 

The City of El Paso Reclaimed Water System

The City of El Paso Water Utilities (EPWU), one of the nation's most

progressive water agencies, has been delivering reclaimed water since

1963. As a pioneer in water reclamation, EPWU has attained international

recognition for its innovative and extensive use of recycled water. EPWU

now operates the most extensive and advanced reclaimed water system in

Texas for industrial use and landscape irrigation.
112 TCEQ/TSSWCB joint publication SFR-68/04

EPWU's philosophy is that water is too valuable to be used only once.

Wastewater from within the EPWU collection area is collected and treated

from one of four EPWU's Wastewater Reclamation Plants using advanced

or tertiary treatment. The result is a high water quality that has earned the

EPWU the reputation as operating the first wastewater treatment plant in

the world to meet Drinking Water Standards for its reclaimed water. The

other three plants meet the highest possible quality rating of Type I

reclaimed water as described in state regulations monitored by the TCEQ.

These facilities were constructed with funding from the U.S. Bureau of

Reclamation grants, U.S. Economic Development Administration grants,

Texas Water Development Board low interest loans, and City of El Paso

Water and Sewer revenue bonds.

Reclaimed water use has been proven safe for the following types of

applications throughout the U. S. and are approved for use by the TCEQ:

city parks, school playgrounds and sports fields, landscape nurseries,

sports complexes, golf courses, street median landscaping, construction

projects, street sweeping, fire protection, residential and multi-family

landscape, industrial cooling towers, and other industrial processes. The

EPWU is also authorized to reinject wastewater treated to drinking water

standards into the local aquifer.

The Brazos River Authority Technical Assistance Program

The Brazos River Authority (BRA) is committed to its mission of

developing, managing, and protecting the water resources of the Brazos

River Basin to meet the needs of Texas. The diversity that exists within

the 42,000 square mile Brazos River Basin is extreme. Annual rainfall

ranges from about 19 inches in West Texas to more that 56 inches along

the gulf coast. Rapid and localized population growth, and ever changing

land uses, presents the BRA with many challenges that must be planned

for and addressed appropriately. To meet the needs of Texas, innovative

measures are utilized to deal with issues such as moving water from areas

with surplus water to areas with water deficits and removing constituents

such as salt from both inland and gulf coast waters.

Beginning in the early 1970's, the BRA pioneered the development of

regional wastewater treatment systems to reduce the amount of NPS

pollution resulting from OSSFs. Today BRA operates 4 regional

wastewater treatment plants, 8 municipal wastewater treatment plants, one

regional composting operation, and 3 water treatment plants. Over the

years, BRA has received numerous awards from the TCEQ and EPA,

recognizing the excellence of their operations, maintenance, and design. 

The BRA is a prominent and active partner in numerous water quality

improvement projects and studies throughout the Brazos River Basin with

a major emphasis on non-point source agricultural issues such as confined

animal feeding operations (poultry and dairy) and crop production, and

non-agricultural sources such as on-site sewage facilities. The BRA is
TCEQ/TSSWCB joint publication SFR-68/04 113

committed to a positive and proactive approach to identify water quality

problems and to follow through with appropriate restoration measures.

The BRA also offers programs such as the Technical Assistance Program

to assist cities, water districts, and other entities with their particular water

and wastewater treatment operations. These services include regulatory

review, operations assistance, preventive maintenance, program

preparation, laboratory testing, and industrial pretreatment. A key

component of the industrial pretreatment program is to work with

cooperating industries to reduce their pollutants before they enter the

sewerage system, thereby reducing the potential to impact water quality.

Storm Water Management

Storm water pollution is a form of water pollution that originates from

urban and rural landscapes. Everyday activities such as landscape

maintenance, the operation of automobiles, and building construction can

cause water pollution under certain circumstances. Pollution occurs when

rainfall or infiltrating groundwater carry accumulated pollutants to

receiving water bodies such as surface lakes, streams, and coastal waters

or groundwater aquifers. 

The fertilizers used to maintain urban landscapes can cause excessive

growths of aquatic vegetation and can lead to unhealthy concentrations of

nitrates in groundwater used as drinking water supply. Metals and organic

compounds associated with the operation of automobiles can be toxic or

carcinogenic to human health and wildlife. Air emissions that originate

from a multitude of industrial, urban, and mobile sources are deposited

onto the ground, with the potential to add pollutants to surface and ground

water when rainfall runoff occurs. Sediments that erode from land areas

disturbed by construction activities can impair aquatic wildlife habitats,

shorten the design life of reservoirs, and act as a carrier for contaminants. 

In addition, increased impermeable surface due to urbanization can alter

the quantity and quality of storm water runoff by facilitating the

transportation of runoff and accumulated sediments from paved surfaces.

The water-related impacts of construction and urbanization can include

habitat alteration, higher peak flows and flooding, erosion, and increased

pollutant loads such as sediment, metals, nutrients, and bacteria. The

following is a discussion of some of the programs in place throughout the

state to address NPS pollution resulting from storm water runoff.

State Storm Water Permitting Programs

The state of Texas assumed the authority to administer the National

Pollutant Discharge Elimination System (NPDES) program in Texas on

September 14, 1998. NPDES is a federal regulatory program to control

discharges of pollutants to surface waters of the United States. The

TCEQ’s Texas Pollutant Discharge Elimination System (TPDES) program

now has federal regulatory authority over discharges of pollutants to
114 TCEQ/TSSWCB joint publication SFR-68/04

Texas surface water, with the exception of discharges associated with oil,

gas, and geothermal exploration and development activities, which are

regulated by the Railroad Commission of Texas (RRC).

The urban storm water program administered through the TPDES program

addresses small municipalities, growing urban fringe areas, and other

urban development under the Phase II rules. If an urban area falls within

the scope of the storm water program, a TPDES permit is required, a

management plan for the reduction of the runoff impacts must be

implemented locally, permit compliance must be evaluated, and

maintenance of existing surface water quality must occur, consistent with

the water quality standards. TPDES permits regulate storm water

discharges from industrial activities, construction activities, and municipal

separate storm sewer systems (MS4s) to Texas waters. The TCEQ issues

and manages TPDES permits for storm water discharges from these

activities and systems. Factors that EPA require states to consider in

designating urban areas as so-called MS4s include discharges to sensitive

waters, high growth areas or growth potential, contiguity to an existing

urban area, significant contribution of pollutants to surface water, and

ineffective protection of water quality by other state programs. 

Texas Land Application Permits (referred to as no discharge permits)

authorize individual facilities to manage storm water and/or wastewater

through evaporation, subsurface disposal, or irrigation systems which

prevent runoff and prevent accumulation of nutrients in the soil. The

TCEQ has a general permit which provides authorization for qualifying

manure composting facilities to dispose of storm water through irrigation

and/or evaporation.

The RRC regulates discharges of waste from activities associated with the

exploration, development, or production of oil, gas, or geothermal

resources, including transportation of crude oil and natural gas by

pipeline, and from solution brine mining activities (except solution mining

activities conducted for the purpose of creating caverns in naturallyoccurring salt formations for the storage of wastes regulated by the

TCEQ). Discharges of waste regulated by the RRC into water in the state

cannot cause a violation of the water quality standards. While water

quality standards are established by the TCEQ, the RRC has the

responsibility for enforcing any violations of such standards. In addition,

the NPDES authority delegated to Texas by EPA does not include those

discharges from activities under the RRC's jurisdiction; such a discharger

must obtain authorization from both the RRC and the EPA.

Texas Department of Transportation Storm Water

Management Guidelines

Involvement in construction and urbanization makes the Texas

Department of Transportation (TxDOT) a key player in the control of

storm water pollution. It is TxDOT's responsibility to be aware of the
TCEQ/TSSWCB joint publication SFR-68/04 115

problem and to take measures to minimize and/or prevent storm water

pollution. Therefore, it is the goal of TxDOT to prevent the degradation of

receiving waters due to storm water runoff from highway operations.

TxDOT is developing a comprehensive storm water management program

aimed at achieving this goal.

TxDOT has published a document entitled, "Storm Water Management

Guidelines for Construction Activities". Although other issues are

mentioned such as project planning and maintenance, the focus of the

document is to provide guidance on the use of storm water management

measures during highway construction. 

With this document, the user can develop a storm water management plan

tailored to the needs of a particular project. In addition, the measures in

this document will assist in meeting regulatory requirements where storm

water is a concern. Although runoff control measures are required by law

in some instances, these measures are applicable anywhere soil is

disturbed and erosion and sedimentation are potential problems. The

material in this manual is derived primarily from storm water guidance

documents developed and adopted by the TCEQ.

The City of Dallas Trinity River Corridor Project

The Trinity River Corridor Project is made up of several distinct elements.

The overall effort will include the building of levees, wetlands, a

downtown lake, gateway parks, trails, equestrian centers, and an

interpretive center. It will also involve the expansion and preservation of

the Great Trinity Forest through the acquisition of 2,700 acres of land

along the Trinity River. 

One element of the Trinity River Corridor project is the construction of a

flood control project along the Trinity River that will reduce the flooding

risk for about 12,500 structures in Dallas. The Dallas Floodway Extension

(DFE) will restore standard project flood (800-year) protection to the

downtown Dallas vicinity and the densely populated areas along the

southern Trinity River corridor. 

A Chain of Wetlands will be constructed in conjunction with the DFE.

The Chain of Wetlands extends about four miles in length and is

comprised of seven wetland cells that produce 170 acres of water surface.

About 100 acres of grasslands will fill in between and around the wetland

cells. The wetlands will be fed by treated wastewater discharge. The

Chain of Wetlands also offer a secondary route for flood waters of the

Trinity River lowering the flood elevations and filtering flood waters of

nutrients and sediments prior to discharge into the Trinity River. The

design team for the Chain of Wetlands includes the Corps, EPA, U. S.

Fish and Wildlife Service, City of Dallas staff, TPWD, and the Trinity

River Corridor Citizens Committee.
116 TCEQ/TSSWCB joint publication SFR-68/04

The San Antonio River Tunnel

The San Antonio River Tunnel system was constructed to lower the risk of

damage due to flooding and help reduce nonpoint source pollution in

storm water runoff discharged into the San Antonio River. The system

consists of 12 trash rakes cycled on a daily basis to prevent large bulky

floatable debris from entering the tunnel system and eventually the San

Antonio River. During a storm event, the trash rakes are run as needed to

ensure operational efficiency of the system. Approximately 500 tons of

floatable debris is removed annually, with three tons removed weekly and

the remainder from storm events. 

This facility also contains a re-circulation feature incorporating a Parkson

screen that removes smaller debris prior to entering the San Antonio

River. This re-circulation system helps maintain water quality in the

famous downtown riverwalk during periods of low flow in the river. The

tunnel is to remain full of water at all times allowing the re-circulation

feature to ensure water quality is maintained in the tunnel itself so when

initial flushing during a storm occurs, downstream water quality is not

affected.

Integrated Storm Water Management Project 

The North Central Texas Council of Governments (NCTCOG) organized

the integrated Storm Water Management (ISWM) project in order to

protect streams and rivers from nonpoint source pollution and heightened 

flooding risks due to urban development. The project will foster

partnerships with state and federal agencies to meet regulatory

requirements and provide guidelines for communities to establish a

successful comprehensive storm water management program. The project

provides an innovative site development approach for addressing both

storm water quantity and quality. The ISWM project is intended to be an

essential element for ongoing and future cooperative storm water

initiatives in North Central Texas. 

The NCTCOG is working with approximately 55 local governments in

order to create sound storm water management guidance documents for

the region through the ISWM project. The ISWM Design Manual for

Development will outline the most current and applicable storm water

management techniques and provide criteria and rationales for the

selection of structural and nonstructural storm water quality and quantity

BMPs.

The San Angelo Urban Nonpoint Source Abatement

Program

The north fork of the Concho River winds through the City of San Angelo

traversing residential, recreational, industrial, and commercial land use

areas. This urban reach of the river has a long history of poor water
TCEQ/TSSWCB joint publication SFR-68/04 117

quality and a record of frequent fish kills encompassing a period of at least

thirty years. Several water quality studies conducted by private and public

entities have confirmed that urban runoff and nonpoint source pollution

have been the primary cause of poor water quality conditions.

Recognizing the desire of city residents and stakeholders to improve water

quality in the North Concho, the Upper Colorado River Authority (UCRA)

partnered with the City of San Angelo to appoint a Citizen's Advisory

Group to develop a plan for eliminating the fish kills and addressing

nonpoint source pollution impacting the river. The work of the committee

culminated in a Master Plan for pollution abatement targeting seven urban

subwatersheds. The worst watersheds for pollutant loadings were

identified and a priority system established for construction of facilities

that would lessen the load of organic material and nutrients entering the

river. 

The implementation plan includes construction of a gabion retention

structure, stormwater control structures, and streambank stabilization. The

plan is still in the process of being implemented. The best management

practices that have been implemented have produced improvements in

water quality expressed by the absence of fish kills following major storm

events. The program also has involvement and support from local elected

officials and the initiation of an extensive public outreach program, the

Aquatic Experience, which is discussed in Chapter 7.

Pesticide Management

Texas Pesticide Laws define a pesticide as a substance or mixture of

substances intended to prevent, destroy, repel, or mitigate any pest, or any

substance or mixture of substances intended for use as a plant regulator,

defoliant, or desiccant. Pesticides enter water bodies through runoff from

sites where there are applied such as farms, golf courses, parks, highway

right-of-ways, and lawns and gardens; by leaching into groundwater;

wastewater discharges; and atmospheric deposition. Pesticide

contamination occurs as a result of improper or over use, spills, improper

storage, and improper disposal. According to a USGS study of 48 drinking

water reservoirs in Texas (September 2000), the pesticides most

frequently detected in Texas drinking water reservoirs included atrazine,

diazinon, metolachlor, and simazine. EPA has identified pesticide

contamination as a nationwide problem in surface water and groundwater.

In response, there has been a coordinated state effort to monitor pesticides

and define roles and responsibilities in responding to the water quality

effects of pesticide contamination.

In addressing pesticide contamination several major principles need to be

taken into account. Agricultural pesticides are beneficial and important to

the production of food and fiber, and are of significance to the state

economy. However, the use of pesticides should not impair any use of

waters of the state or cause a public health hazard. Drinking water
118 TCEQ/TSSWCB joint publication SFR-68/04

supplies, both groundwater and surface water, should especially be

protected. State and local government should be the first line of

protection, their efforts being complemented by federal expertise and

information. Efforts in Texas in addressing these issues include, for

groundwater, the adoption of the Groundwater Pesticide Management

Plan and, for surface water, the incorporation into this document, of a

similar elaboration of management measures. These surface water

pesticide management measures were primarily developed under the

guidance of the Texas Watershed Protection Committee. 

Groundwater Pesticide Management Plan

Considerable progress has been made in the prevention of groundwater

contamination from pesticides by laying out specific management

measures in The State Management Plan for Prevention of Pesticide

Contamination of Groundwater – usually referred to as the Groundwater

Pesticide Management Plan or PMP. This plan was published in January

2001 after several years of development under the guidance of the Texas

Groundwater Protection Committee. A similar elaboration of management

measures has been developed, by an interagency group, for the prevention

of pesticide contamination of surface water. Many of the measures for

preventing pesticide contamination of groundwater and surface water are

the same, however, there are important differences. 

Surface Water Pesticide Management

The goal of surface water pesticide management is to provide a

mechanism for the protection of surface water from pesticide

contamination similar to that provided to groundwater under the PMP.

The goal of surface water pesticide management is to protect and maintain

the existing quality of surface water and to prevent the degradation of state

surface water resources. This goal subscribes to unimpaired use of surface

water, allowing for the normal use of pesticides without impairing surface

water quality or posing a public health hazard. All used and potentially

usable surface waters are subject to the same protection afforded by the

antidegradation policy goal. This level of surface water protection 

complements the protection of groundwater influenced or hydrologically

connected to surface water.

Pesticide contamination of surface water is detected through the state’s

assessment process as described in Chapter 5. Public water supplies are

regularly monitored by the Public Drinking Water Section of the TCEQ.

NPS pollution resulting from pesticides is managed through prevention

and response to contamination. The Texas Watershed Protection

Committee (defined in Chapter 4) coordinates these activities. 

Prevention and Mitigation

The Texas Watershed Protection Committee recommends and coordinates

a five tiered approach for prevention of pesticide contamination. 
TCEQ/TSSWCB joint publication SFR-68/04 119

# General Education: General information is shared

statewide to raise awareness of the potential for pesticide

contamination. Brochures, displays, and slide presentations

are the tools used to raise awareness. These materials are

created and distributed throughout the state by the

cooperating agencies of the Texas Watershed Protection

Committee (TWPC).

# Education Focused on Affected Water Bodies:

Educational efforts will be expanded in areas where a surface

drinking water source is identified as affected by specific

pesticides. This effort will be applied even though

monitoring has not shown contamination beyond the

Maximum Contaminant Level (MCL). Dissemination of

information will be through public presentations, articles in

newsletters, and advertisement of available educational

literature.

# Education and Application of Best Management Practices

(BMPs) in Areas with Lower Levels of Pesticides: Where

monitoring has revealed contamination of surface water used

as a drinking water source, but at concentrations lower than

the pesticide MCL or Health Advisory Level (HAL), a

voluntary BMP program will be encouraged. Furthermore,

cooperating agencies may take additional action through their

standard education programs.

# Education and Application of BMP’s in Areas with

Greater Levels of Pesticides: In a surface water body used

as a drinking water source, where monitoring has revealed a

nonpoint source contamination by a pesticide at levels

greater than the MCL or HAL, a voluntary education and

BMP program will be initiated. If there is no evidence of

sufficient improvement, use restrictions will be implemented.

# Pesticide Use Restrictions: If all previous levels of

preventive measures fail, the final recourse will be use

restriction of the pesticide in the water body which is

contaminated. Such actions will be implemented by the TDA

after consultation with the other involved agencies through

the TWPC. Users will be notified of the restricted use status

of the pesticide in their area.

Response to Contamination

The response to contamination of surface water by pesticides falls under

the jurisdiction of a number of agencies. Pesticide runoff is typically

treated as an agricultural nonpoint source pollution therefore, the
120 TCEQ/TSSWCB joint publication SFR-68/04

TSSWCB plays a key role in response. The TCEQ Source Water

Assessment and Protection (SWAP) program provides response assistance

when the water body is a drinking water supply. The Texas Department of

Agriculture (TDA), the lead regulatory agency for agricultural pesticides,

provides expertise on pesticide regulation and education. When pesticide

contamination results in a surface water body not meeting standards the

response is addressed through the TMDL process as described in Chapter

5. When the pesticide contamination does not result in a standards

violation response occurs through the preventive actions described above

and, if the local entity responsible for the affected water body chooses to

participate, through the TCEQ’s SWAP program described below. The

TWPC coordinates all responses to pesticide contamination to ensure that

the responsible agencies or programs are notified and take appropriate

action.

Implementation Under Source Water Assessment Program

Under the Source Water Assessment Program (SWAP) all surface waters

that contribute to public drinking water supplies are investigated for

potential contamination. Investigations proceed in the following stages:

# Identification of areas that supply public drinking water

# Delineation of the boundaries of the assessment areas needed

to protect the water supplies

# Inventorying of potential sources of contamination within the

assessment areas

# Informing the public of the results

# Implementation of a source water protection program (see

page 113)

Pesticide Review Program

The EPA reviews and registers pesticides to ensure they meet current

scientific and regulatory standards. Through this process consideration is

made for human health and ecological effects of pesticides. The EPA

issues risk management decisions based on the reviews that may result in

registration eligibility, risk reduction measures, or elimination of uses.

Risk factors that are analyzed include risks to workers, risks associated

with residential uses, and risks affecting drinking water. Measures used to

address risks include requiring intensive monitoring programs, prohibition

of use in specified geographic areas or watersheds, education programs to

ensure proper use and mitigation requirements. The State of Texas has

developed programs to enforce and ensure compliance with this EPA

program at the state level. 
TCEQ/TSSWCB joint publication SFR-68/04 121

Agricultural Pesticide Regulation

The Texas Department of Agriculture (TDA) is the State's lead regulatory

agency for agricultural pesticide regulation. The Texas Pesticide and

Herbicide Laws grant TDA the authority to enforce the provisions of the

law pertaining to the registration, distribution, and use of all agricultural

pesticides. TDA is responsible for licensing all agricultural pesticide

applicators and labeling, storage, sales, usage, and disposal of all

pesticides. TDA also cooperates with other state agencies that have

statutory pesticide responsibilities, such as the TCEQ, the Structural Pest

Control Board, and the DSHS. TDA is responsible for the enforcement of

federal pesticide laws under a cooperative agreement with the EPA.

The TDA cooperates with all agricultural producers and other users of

pesticides to make certain that all pesticides are used safely and according

to instructions. The Texas Pesticide Control Act requires that pesticides be

stored in a manner that will reasonably ensure that human food, domestic

and public water, pet foods, drugs, animal feeds, commercial fertilizers,

seeds, or clothing will not be contaminated. The law also directs that

pesticide containers be disposed of as directed on the label or by any other

methods approved by the TDA. Any use of pesticides inconsistent with

label directions is a violation of the law and may subject the user to

penalties under federal and state law.

The TDA is also responsible for developing and implementing the State of

Texas Plan for Certification of Pesticide Applicators. All application

equipment used by commercial applicators must be registered, and is

subject to inspection at any reasonable time. The Texas Cooperative

Extension is responsible for training in relation to the state pesticide

applicator certification program. 

The Structural Pest Control Board

The Structural Pest Control Board (SPCB) is authorized to promulgate

rules and regulations governing the methods and practices pertaining to

structural pest control to prevent adverse effects on human health and the

environment. SPCB has established regulations which authorize it to

enforce label instructions approved by EPA and TDA regarding

application and disposal of pesticides in the urban environment. Many

label instructions contain information relating to proper application and

disposal of pesticides to prevent surface water contamination. 

In addition, the SPCB licenses businesses, certified commercial

applicators, certified noncommercial applicators, technicians, technician

apprentices, non-commercial applicator apprentices, and management

technicians in the structural pest control industry. The SPCB also has the

authority to take action against any licensee for engaging in practices that

could be detrimental to public health, safety, or the environment. The
122 TCEQ/TSSWCB joint publication SFR-68/04

SPCB also has the authority to perform inspections to monitor pesticide

use and investigate complaints regarding label violations.

Agriculture Resource Protection Authority

The Agriculture Resource Protection Authority (ARPA) is the

coordinating body for TDA, TSSWCB, TAES, DSHS, TCEQ, and SPCB

with respect to their policies and programs for management, regulation,

and control of pesticides. In addition, ARPA helps to avoid overlapping

responsibilities of the state agencies, facilitates all the involved agencies

participation in the regulation of pesticides, and helps demarcate the

various areas of responsibility of the participating agencies.

ARPA may cooperate with and advise the member agencies or any other

state agency that may be concerned with the regulation of pesticides and

review any rule relating to pesticides that is proposed by any of its

member agencies, except rules under Chapter 125 of the Texas

Agriculture Code. ARPA can inform and advise the governor on matters

involving pesticides, prepare and recommend to the governor and to the

legislature any legislation that ARPA considers proper for the

management and control of pesticides, and make annual reports to the

governor and the appropriate legislative oversight committees.

The Agricultural Waste Pesticide Collection Program 

The TCEQ, partners with Texas Cooperative Extension (TCE) and Texas

Department of Agriculture (TDA), to organize regional waste pesticide

collections held statewide. The free collections provide agricultural

producers and other Texans with an opportunity to dispose of pesticides

and other household hazardous wastes at no expense and with no

questions asked. In addition, mercury fever thermometers are accepted and

replaced at no charge with mercury-free thermometers. The program is

strictly voluntary. Participants are asked to answer several survey

questions. The survey responses are evaluated to determine program

effectiveness.

Agricultural Management

Texas has the largest number of farms and the most land in agricultural

production in the United States. According to the 1997 Ag Census, 77% of

the land area of Texas was in agricultural production. Of this, there are

26,762,000 acres of cropland, 15,807,000 acres of pastureland, and

95,323,000 acres of rangeland. In addition, there are almost 400 cattle

feedlots, over 1200 dairies, approximately 100 hog operations, and over

1300 poultry operations in Texas. 

Agricultural activities are a potential source of nonpoint source pollution.

Possible nonpoint source pollutants associated with agricultural activities

include nutrients, pesticides, organic matter, sediment and bacteria. These
TCEQ/TSSWCB joint publication SFR-68/04 123

pollutants may be transported to surface waters through runoff or eroded

soil particles. Pesticides and nutrients may also leach into groundwater or

be transported through avenues such as abandoned and improperly

constructed wells or through naturally occurring hydrologic connections.

Below is a discussion of some programs in place to address nonpoint

source pollution resulting from agricultural activities.

Agricultural Waste Permitting 

Animal feeding operations, such as feedlots, dairies, and poultry

operations, can be a source of pollutant discharges following rainfall

events. An animal feeding operation is required to apply for a wastewater

permit if it exceeds a given number of animals. These concentrated animal

feeding operations (CAFOs) are prohibited from directly discharging into

surface waters except under catastrophic rainfall or a chronic rainfall

event. 

Animal Feeding Operations (AFOs), which have fewer animals than

CAFOs, do not require written authorization. AFOs are under the purvue

of the Texas State Soil and Water Conservation Board (TSSWCB) and

must meet the same technical requirements as a CAFO. All poultry

operations must obtain a TSSWCB-certified water quality management

plan (WQMP). However, by April 13, 2006, dry litter poultry operations

meeting certain size requirements must obtain written authorization. AFOs

and CAFOs may receive technical assistance from the TSSWCB and the

U.S. Department of Agriculture-Natural Resources Conservation Service

(USDA-NRCS). 

The TCEQ Agriculture Permitting Program reviews technical designs of

CAFOs for new facilities, facilities being modified or increased, and for

facilities renewing their authorization. The designs are reviewed for

selection, implementation, and use of environmentally sound BMPs to

collect, store and utilize waste and wastewater and to control air emissions

and odor in a manner to conform with good agricultural management

practices. Waste and wastewater must be properly land-applied for

beneficial use on agricultural land at agronomic rates. 

A Pollution Prevention Plan (PPP) must be prepared for every CAFO

facility in the State. The PPP must be prepared in accordance with good

engineering practices and include measures necessary to limit the

discharge of pollutants to waters in the state. The PPP must describe

practices which are to be used to assure compliance with the CAFO rules.

Specific components of a PPP include a site plan indicating all animal

confinement areas, waste treatment/retention facilities, waste/wastewater

application areas, management of waste/wastewater application areas at

agronomic rates, as well as an identification of potential pollutant sources

used, stored, or disposed of at the facility. Any recharge zone/features

must be located, evaluated and protected. Procedures for monitoring

discharges and sampling of land application areas are included in the PPP.
124 TCEQ/TSSWCB joint publication SFR-68/04

Also, descriptions of all other protective measures or BMPs used to

control potential pollutant sources must be included in the PPP. 

TSSWCB Water Quality Management Plan Program

Texas Agriculture Code, §201.026 makes the TSSWCB responsible for

planning, implementing, and managing programs and practices for abating

agricultural and silvicultural nonpoint source pollution. This is primarily

accomplished through the TSSWCB Water Quality Management Plan

Program, which was established in 1993 by the Texas Legislature when it

passed Senate Bill 503. Senate Bill 503 authorized the TSSWCB to assist

agricultural and silvicultural producers in meeting the state's water quality

goals and standards through this voluntary, incentive-based program. 

Through this program, agricultural and silvicultural producers develop and

implement site specific water quality management plans (WQMPs) in

cooperation with local Soil and Water Conservation Districts (SWCDs).

The WQMPs include appropriate land treatment practices, production

practices, management measures, technologies or combinations thereof,

and an implementation schedule.

Local SWCDs provide technical assistance to develop the plan through

agreements with United States Department of Agriculture Natural

Resources Conservation Service (USDA-NRCS) or the TSSWCB. After

being approved by the district, the developed plan requires TSSWCB

certification. Certified water quality management plans ensure farming or

ranching operations are carried out in a manner consistent with state water

quality goals. The state legislature provides funding through the TSSWCB

for the implementation of WQMPs.

The Dairy Outreach Program

Some areas of the state have been identified as having water quality

problems and concerns resulting from point and NPS pollution as a result

of animal feeding operations. These areas are involved in the TCEQ's

Dairy Outreach Program and include Erath, Bosque, Hamilton, Comanche,

Johnson, Hopkins, Wood, and Rains counties. The TCEQ, TCE, and

TSSWCB conduct various NPS related activities in the Dairy Outreach

Program Areas (DOPA):

# Presentations to producer groups on water quality protection

and the NPS program

# Review of permit applications for dairies, feedlots, and

poultry facilities

# Information on CAFOs rules 

# Education and training to producers on NPS issues such as

land application of manure
TCEQ/TSSWCB joint publication SFR-68/04 125

Owners/operators of CAFOs located in the Dairy Outreach Program

Areas, and operating under the state's CAFO rules, must complete an

initial eight-hour course and subsequent eight hours every two years of

continuing education in animal waste management. Similarly, employees

of any CAFO responsible for work activities relating to compliance must

be regularly trained or informed of information pertinent to the proper

operation and maintenance of the facility and waste disposal. Employees

at all levels of responsibility shall be informed of the general components

and goals of the PPP. Training topics include land application of waste,

proper operation and maintenance, good housekeeping and material

management practices, recordkeeping requirements, and spill response and

cleanup.

The Texas Brush Control Program

The TSSWCB also achieves nonpoint source abatement through the

implementation of the Texas Brush Control Program. The Texas Brush

Control Program was created to enhance the State's water resources

through selective control of brush species. This program is a voluntary

program in which landowners may contract with the state for cost-share

assistance. Local SWCDs assist landowners with development of

resource management plans addressing brush control, soil erosion, water

quality, wildlife habitat and other natural resource issues. 

The Agricultural Loan Program

The Texas Water Development Board (TWDB) provides grants and loans

for agricultural water conservation equipment and practices which

promote, demonstrate, or evaluate more efficient use of irrigation in

agriculture. Grants are available to political subdivisions and state

agencies. Loans are also available to political subdivisions and individuals

through political subdivisions or a linked deposit program. The use of

more efficient practices can reduce agricultural NPS loadings in surface

and groundwater.

The Private Lands Enhancement Program

Through the Private Lands Enhancement Program, the Texas Parks and

Wildlife Department (TPWD) provides technical assistance to persons

who desire to include wildlife management considerations in present or

future land use practices. On request, a TPWD biologist will meet with the

land manager and conduct an inspection of the property. The land

manager will be asked to define the various needs and uses of the property

and to establish an objective for wildlife considerations. The biologist will

provide recommendations which may include a written management plan. 

Field biologists work with individual landowners on request to develop

land management plans which use environmentally and economically

sound land use practices. Implementation of the management plan is
126 TCEQ/TSSWCB joint publication SFR-68/04

completely voluntary. Practices include grazing rotation and management

for increased grass cover. Filter strips in riparian areas are established.

Upland erosion controls and establishment of vegetative cover reduce

runoff and allow filtration. Strip removal practices for cedar are used to

decrease loss of subsurface water to cedar. These practices combined lead

to improved infiltration, increased water retention, and in some instances

the rejuvenation of natural springs.

The Environmental Quality Incentives Program

Resources available to address issues related to nonpoint sources from

privately owned agricultural land were significantly enhanced by the

passage and implementation of the 2002 Federal Farm Bill. The

Environmental Quality Incentives Program (EQIP) in the Conservation

Title of the 2002 Farm Bill is a voluntary conservation program that

promotes agricultural production and environmental quality as compatible

goals. Through EQIP, farmers and ranchers may receive financial and

technical assistance to install or implement structural and management

conservation practices on eligible agricultural land. EQIP is administered

by the USDA-NRCS, but the priorities for allocation and distribution of

funds are established with input from a State Technical Committee that is

composed of representatives from federal and state resource agencies and

organizations that are associated with agriculture. The TSSWCB and

TCEQ are represented on this committee. In Texas, financial assistance

funds will be used to address both the local high priority practices

identified by the Local Work Groups that are chaired by soil and water

conservation districts and the statewide resource concerns identified by

the State Technical Committee. The State Technical Committee and Local

Work Groups recommend the practices eligible for cost share and the cost

share rates that will be paid. Eligible persons may select to apply in the

county-based program recommended by the Local Work Group or in one

of the Statewide Resource Concerns recommended by the State Technical

Committee. Landowners and operators will choose the practices and

evaluation systems that best fit their needs.

The availability of EQIP, active participation in the State Technical

Committee, Local Work Groups, and accommodation of recommendations

from the State Technical Committee by the State Conservationist have

provided opportunities to focus resources on problem areas that were

previously difficult or impossible to address. The voluntary nature of the

program has enabled the state technical committee and the USDA-NRCS

to establish state level resource concerns. By bringing this program down

to the state level they are able to provide a portion of funds as incentive

payments to producers that implement structural and management

practices to address specific environmental problems. Before, EQIP

funding assistance for individual land owners and agricultural producers

was unavailable or very difficult to obtain. Through the State Technical

Committee, the USDA-NRCS has actively pursued information on areas

of the state where changes or adjustments in practices by individual land
TCEQ/TSSWCB joint publication SFR-68/04 127

owners would be needed to contribute to the alleviation of identified

environmental problems. This has enhanced the opportunities for

regulatory agencies to use a combination of regulatory and voluntary

practices to address specific problem areas impacted by nonpoint sources

or a combination of point sources and nonpoint sources. 

The Watershed Program

The purpose of the Watershed Program, administered by the

USDA-NRCS, is to assist Federal, State, local agencies, local government

sponsors, tribal governments, and program participants to protect and

restore watersheds from damage caused by erosion, floodwater, and

sediment; to conserve and develop water and land resources; and solve

natural resource and related economic problems on a watershed basis. The

program provides technical and financial assistance to local citizens or

project sponsors, builds partnerships, and requires local and state funding

contribution.

Resource concerns addressed by the program include watershed

protection; flood prevention; erosion and sediment control; water supply;

water quality; opportunities for water conservation; wetland and water

storage capacity; agricultural drought problems; rural development;

municipal and industrial water needs; upstream flood damages; water

needs for fish, wildlife, and forest-based industries; fish and wildlife

habitat enhancement; wetland creation and restoration; and public

recreation in watersheds of 250,000 or fewer acres. 

Plans or surveys including watershed plans, river basin surveys and

studies, flood hazard analyses, and flood plain management assistance are

developed to identify solutions that use conservation practice and

nonstructural measures to solve resource problems. If approved, technical

and financial assistance is provided for installation of improvement

measures specified in the plans.

Conservation Technical Assistance Program 

The Conservation Technical Assistance program, administered by the

USDA-NRCS, provides voluntary conservation technical assistance to

land-users, communities, units of state and local government, and other

Federal agencies in planning and implementing conservation practices that

address natural resource issues. The program encourages and assists

citizens to voluntarily conserve, improve and sustain natural resources.

Conservation Reserve Program

The principal mission of the Farm Services Agency (FSA) is designed to

stabilize farm income, assist farmers with conservation of land and water

resources, provide credit to new or disadvantaged farmers and ranchers,

and help farm operations recover from the effects of disaster. Many of the
128 TCEQ/TSSWCB joint publication SFR-68/04

FSA operated programs are funded through the Commodity Credit

Corporation (CCC), a government owned and operated corporation

established to stabilize, support, and protect farm income and prices. 

The Conservation Reserve Program is a voluntary program administered

by the FSA that offers annual rental payments, incentive payments, annual

maintenance payments for certain activities, and cost-share assistance to

establish approved cover on eligible cropland. The program encourages

farmers to plant long-term resource-conserving cover to improve soil,

water, and wildlife resources. The CCC makes available cost-share

assistance in an amount equal to not more than 50% of the participant's

costs in establishing approved practices. Contract duration is between 10

and 15 years. The NRCS, Cooperative State Research and Education

Extension Service, state forestry agencies, and local soil and water

conservation districts provide technical support for this program.

USDA-Agricultural Research Service

The Agricultural Research Service (ARS) is the principal in-house

research agency of the USDA. ARS conducts research to develop and

transfer solutions to agricultural problems of high national priority. The

mission of the ARS is to increase understanding and develop solutions to

protect the Nations's soil and water resources. Two of the twenty-two ARS

National Programs, Water Quality Management and Soil Resource

Management, are strongly committed to applied nonpoint source pollution

research. In Texas, ARS is conducting ongoing research on NPS related

issues such as: land application of municipal and agricultural wastes;

improved management of soil, water, nutrients, and chemicals in

agricultural production systems; and enhanced simulation tools for water

quality, hydrology, and crop growth. ARS research, conducted by

laboratories throughout the state, is often carried out in cooperation with

universities, state research and extension centers, and private

organizations.

The Texas Institute for Applied Environmental Research

The Texas Institute for Applied Environmental Research (TIAER) was

established as part of the Texas A&M System to conduct applied research

on environmental issues that have public policy implications. TIAER is

also responsible for providing national leadership on emerging

environmental policy and to provide a setting for environmental studies on

the interface between government and the private sector. Establishing

interdisciplinary programs or partnerships to develop and implement new

policies, technologies, strategies, and relationships is another

responsibility of TIAER. Partnerships with other universities and state

agencies build on the strengths of each entity to produce an effective,

efficient program.

The TIAER goal is to impact state and national environmental policy. A

fundamental principal to this goal is improvements in the environment are
TCEQ/TSSWCB joint publication SFR-68/04 129

best accomplished by conducting scientific research and using research

results to formulate policy recommendations that will actually be

implemented by government and other institutions. TIAER seeks to use

cutting-edge strategies and technologies to assist developers and

implementers of environmental policy. 

TIAER staff performs ambient monitoring and analyzes data to assess

nonpoint source impacts to receiving waters and improvements to

receiving water from best management practice implementation. TIAER

also works to refine and apply computer models to simulate and evaluate

nonpoint source management practices. 

The Texas Water Resources Institute

The Texas Water Resources Institute is a unit of the Texas Agricultural

Experiment Station and Texas Cooperative Extension. It is part of a

national network of institutes created by the Water Resources Research

Act of 1964. The Institute is funded by the United States Geological

Survey and is affiliated with the National Institutes for Water Research. 

The Texas Water Resources Institute serves as a focal point for

water-related research at Texas universities, encouraging discussion of

statewide issues through meetings and multi-university studies. The

Institute links academic expertise with state and federal agencies,

strengthening water research and education. Additionally, the Institute

provides leadership for water resource programs through grant

administration, pre-award services, project management, communication,

and facilitation of interagency collaboration.

The Lower Colorado River Authority - Creekside

Conservation Program

The Lower Colorado River Authority (LCRA) is dedicated to land

stewardship through several innovative conservation programs. The

LCRA has joined with numerous partners throughout the state to promote

land conservation and preserve wildlife habitat in Central and South

Texas.

As farmers and ranchers lose topsoil to erosion, land productivity

decreases. Thousands of acres of valuable soil are washed into tributaries

and lakes every year. This sediment can build up to create flood

management problems, threaten aquatic habitats, and reduce groundwater

recharge. Waterways also suffer from excessive sedimentation and

nonpoint source pollution.

Since 1990, LCRA's Creekside Conservation Program has worked with

landowners and state and federal agencies to reduce sedimentation and

agricultural nonpoint source pollution on privately owned land in eleven

counties. The LCRA strongly emphasizes brush management to improve
130 TCEQ/TSSWCB joint publication SFR-68/04

vegetative cover that reduces erosion, increases land productivity, filters

groundwater, and enhances wildlife habitat. In recent decades, the spread

of invasive brush species, particularly cedar and mesquite, over Central

Texas rangelands has choked out native grasses and plants that benefit

water quality and quantity.

Local Soil and Water Conservation Districts (SWCDs) help landowners

with project planning in the Colorado River basin. The local office of the

USDA-NRCS selects potential sites and qualified landowners to

participate in the Creekside Conservation Program. Local SWCDs

approve the projects and submit them to LCRA for final approval. Upon

completion of the project, the landowner is reimbursed for up to half of

the cost of the conservation project. The NRCS and LCRA staff monitor

success of each project on an annual basis. 

Silvicultural Management

Texas has more than 23 million acres of forested land. Half of this area,

roughly 11.8 million acres, is considered commercial timberland. Most

streams that originate or flow through these timberlands are sources of

water supply, prime recreation, and other high quality uses. Because of

this, forest management programs have been developed to implement

adequate measures to protect water quality. Below is a discussion of some

of the programs in place to address the nonpoint source problems resulting

from silvicultural activities.

The Texas Forest Service Resource Development Program

The Texas Forest Service (TFS) resource development program provides

professional assistance to non-industrial private landowners, including

services such as, development of forest management plans, assistance in

implementation of reforestation and timber stand improvement practices,

prescribed burning, and fireline plowing. It administers several state and

federal cost share programs which promote reforestation and stewardship.

Emphasis is placed on developing the state's timber resource in an

environmentally sound manner to meet present and future needs. 

The Forest Stewardship Program

The Forest Stewardship Program (FSP), a USDA Forest Service program,

provides technical assistance, through State forestry agency partners, to

nonindustrial private forest (NIPF) owners. The program encourages and

enables active long-term forest management. A primary focus of the

program is the development of comprehensive, multi-resource

management plans that provide landowners with the information they need

to manage their forests.
TCEQ/TSSWCB joint publication SFR-68/04 131

The Forest Land Enhancement Program

The Forest Land Enhancement Program (FLEP), administered by the

USDA Forest Service, is a voluntary program that provides technical,

educational, and cost-share assistance to non-industrial private forest

(NIPF) landowners. Eligible landowners must have an approved Forest

Stewardship Plan.

Pollution Prevention

The key to controlling nonpoint source pollution is often prevention.

Preventing contaminants from reaching water in the first place mitigates

environmental risks from pollution and eliminates the need for expensive

clean-up programs. Community, business, and citizen involvement are

integral to successful pollution prevention. There are many simple day to

day activities citizens can do to prevent pollution. Educating citizens

about what those activities are and implementing prevention programs can

be accomplished on a larger scale by federal, state, or local government

programs. Following is a discussion of several programs that work with

citizens, businesses, and industry to encourage voluntary implementation

of pollution prevention activities. 

The Site Visit Program

The TCEQ offers free, confidential on-site environmental compliance

assessments (site visits) to local government facilities and independently

owned and operated businesses with 100 or fewer total employees. After a

site visit, the facility operator receives a report from the consultant

outlining environmental compliance deficiencies and a copy of the

consultant's compliance checklist. The consultant will provide specific

recommendations on how the facility can achieve full compliance and

possibly reduce regulatory burden.

The Small Towns Environment Program

The Texas Small Towns Environment Project (STEP) was designed to

assist small towns, unincorporated communities, subdivisions, colonias, or

clusters of homes with urgent drinking and wastewater problems. The

TCEQ provides technical assistance and support to community leaders and

residents who are willing to solve problems through self-help. Texas

STEP agents work collaboratively with community residents to pull

together local resources to initiate a drinking water and/or wastewater

project. The Texas STEP is a partnership between the TCEQ, Texas

Department of Housing and Community Affairs, the DSHS, TWDB, and

GLO with support from the national Small Towns Environment Program

of the Rensselaerville Institute.
132 TCEQ/TSSWCB joint publication SFR-68/04

The Texas Country Cleanup Program 

The TCEQ, in cooperation with TCE and TDA, conducts free, one-day

collections at 30-40 locations across the state annually for citizens in rural

and agricultural communities to bring materials for recycling or disposal.

Texas Country Cleanups offer residents recycling opportunities for

materials specific to rural and agricultural materials. The materials

accepted in these collections include triple-rinsed empty pesticide

containers, used motor oil, used oil filters, and lead-acid batteries.

Supplemental Environmental Projects 

Supplemental Environmental Projects (SEPs) prevent or reduce pollution,

enhance the quality of the environment, and increase environmental public

awareness. The SEP program, administered by the TCEQ, provides the

opportunity for the respondent in an enforcement action to negotiate an

agreement to perform an SEP in return for a reduction in administrative

penalties. Potential SEPs include cleanup of abandoned illegal dump sites;

community household hazardous waste collections; purchase of Water

Wise kits for local schools; and on-site pollution prevention projects that

exceed regulatory requirements. 

The Clean Texas Program

The Clean Texas Program is a voluntary environmental leadership

program to protect the state's air, water, and land. The program offers

benefits and incentives to members who commit to improving the

environment and sustaining a quality of life for future generations. The

Clean Texas Program is open to industries, businesses, cities, counties,

schools, universities, military bases, nonprofit groups, and other

organizations. Clean Texas Program "partners" make commitments to

measurable environmental improvement goals, internal environmental

programs, and community environmental outreach programs or projects.

Clean Texas Program "leaders" make these same commitments and in

addition, pledge to implement a system to assure compliance and

continuous improvement (environmental management system, strategic

plan, business plan), a community communication program, and a system

to review and measure the environmental impact of products, processes,

and community services (product stewardship program).

Oil and Gas Waste Minimization Program

The Oil and Gas Waste Minimization Program, administered by the

Railroad Commission of Texas (RRC), offers assistance to oil and gas

operators interested in minimizing wastes through source reduction and

recycling of oil and gas wastes. The RRC's program includes several

products and services, including a manual, workshops, technology

transfer, waste minimization planning software, a newsletter, and on-site

assistance.
TCEQ/TSSWCB joint publication SFR-68/04 133

Texas Chemical Council

The Texas Chemical Council (TCC) is a statewide trade association of

chemical manufacturing facilities in Texas. The TCC represents the Texas

chemical industry in environmental protection, health and safety issues,

tort reform, and energy policy. As a partner in the TCEQ Clean Texas

program, the Texas Chemical Council (TCC) encourages all its member

companies to participate as program members, committed to fulfilling the

requirements of membership. The TCC and its member companies strive

to conserve natural resources, cultivate environmentally responsible

business activities, foster product stewardship, and handle waste

responsibly. The TCC supports other environmental goals such as

recycling and the protection of vital habitats, wetlands, and endangered

species. 

Protection for Drinking Water Sources

Many Texans get their drinking water from large scale municipal water

systems that rely on surface water resources, such as rivers, lakes, and

reservoirs. Others depend on private sources, such as wells and aquifers.

Contamination can occur in surface or groundwater supplies from

wastewater discharges, urban and agricultural runoff, leaking underground

storage tanks, improperly maintained on-site sewage facilities, waste sites,

abandoned wells, and deposition of airborne pollutants. The State of Texas

pays special attention to protecting surface and ground water supplies that

serve as a source of drinking water. Protecting drinking water at the

source makes good public health, economic, and environmental sense.

Below is a discussion of the state programs that focus on the protection of

drinking water sources.

Underground Injection Control

Underground Injection Control (UIC) involves the protection of

underground sources of drinking water (USDW) through the regulatory

oversight of injection wells. Given the broadest interpretation for statutes

covering Underground Injection Control (UIC), any water could be

determined to be fresh water provided it has beneficial use. The UIC

program interprets "fresh water" as water with 10,000 mg/l or less Total

Dissolved Solids (TDS), with the understanding that the broader statutory

definition may be strictly applied whenever necessary to protect water

containing greater than 10,000 mg/l TDS (30 TAC §331.2). 

The TCEQ's authorized UIC program has elected to not specifically

designate or geographically delineate aquifers as underground sources of

drinking water. Any aquifer or portion thereof that fits the definition is

considered an underground source of drinking water (USDW), even if not

affirmatively identified as such by the agency.
134 TCEQ/TSSWCB joint publication SFR-68/04

Injection wells are divided by class; specifically, Class I through Class V.

In Texas, regulatory responsibility for the subsurface injection of fluids

and waste lies with either the Railroad Commission of Texas (RRC) or the

TCEQ, depending mainly on the class of injection well, the intended use

of the well, or in the case of Class III wells, the mineral to be mined.

# Class I - hazardous wastes injected beneath the lowermost

formation containing an USDW. All Class I wells are

regulated by the TCEQ through injection well permits. 

# Class II - "oil and gas waste", including salt water. All Class

II wells are regulated by the RRC through injection well

permits. 

# Class III - extraction of minerals, exclusive of oil and natural

gas (uranium, sodium sulfate (potash), brine and sulfur. Brine

injection wells are regulated by the RRC through permits, all

other Class III injection wells under TCEQ. 

# Class IV -hazardous wastes into or above a formation which

contains an USDW within one-quarter mile of the wellbore.

Class IV injection wells are generally prohibited by the

TCEQ rules (30 TAC §331.6).

# Class V - Miscellaneous injection wells that are not Class I,

II, III, or IV wells, or single family residential cesspools or

septic system disposal wells. Wells used for in-situ

combustion of fossil fuels and geothermal wells are under the

jurisdiction of the RRC. Aquifer storage and recovery wells,

subsidence control wells, salt water intrusion barrier wells;

air conditioning return flow wells; drainage wells; some

septic system wells; cesspools; dry wells used to inject

nonhazardous wastes other than domestic sewage into the

unsaturated zone; and sand backfill wells used to reclaim

some mines are under the jurisdiction of TCEQ.

For those facilities which handle hazardous waste, surface facilities are

permitted separately by the TCEQ, under the authority of the Texas Solid

Waste Disposal Act (Health and Safety Code, Chapter 361), and/or the

federally delegated Resource Conservation and Recovery Act (RCRA)

program. Strict application review procedures, and following monitoring

and inspection programs by both the TCEQ and the Railroad Commission

of Texas help prevent non-point source contamination of usable

groundwater by salt water and non-hazardous wastes. 

The Source Water Assessment and Protection Program

The TCEQ Source Water Assessment and Protection (SWAP) program was

created in 1996 by the Safe Drinking Water Act. SWAP combines source water

assessment (SWA) and source water protection (SWP).
TCEQ/TSSWCB joint publication SFR-68/04 135

Source Water Assessments

The Source Water Assessment (SWA) assesses a Public Water Supply

system's susceptibility to 227 potential drinking water contaminants.

Specific elements scrutinized include location, intrinsic characteristics,

contaminant occurrence, point and nonpoint source pollution, and

construction. These elements are compared with several hundred thousand

database records to produce a technically defensible assessment product.

The goal of the SWA component leads to local Source Water Protection

(SWP) implementation.

A source water assessment report has been provided to each of 6,000

public water systems (PWS) and is intended to lead to the implementation

of source water protection projects and BMP implementation. The source

water assessments are used by the TCEQ SWAP program to drive the

prioritization and implementation of Source Water Protection (SWP)

activities, and the recommended best management practices (BMPs)

aimed at minimizing or eliminating the affects of NPS contaminants.

Source Water Protection

Source Water Protection (SWP) is a voluntary, pollution prevention

program implemented at the local level. All public water supply systems

are eligible to participate in the program. The TCEQ provides technical

assistance and guidance to local Public Water Supply systems that

implement recommended BMPs. The TCEQ coordinates BMP

recommendations or implementation with other agencies/organizations

with expertise and/or jurisdiction. These BMPs include signs to increase

public awareness, educational programs, site-specific protection plans, and

local ordinances. The TCEQ recommends communities participating in

the program voluntarily implement BMPs based on results of potential

contaminant source inventories. Most SWP participants have implemented

programs by working cooperatively with community members and

through public education programs. Costs associated with implementing a

SWP program are much lower than cleaning up a contaminated water

source. Implementation costs are eligible for funding through the Texas

Water Development Board’s Drinking Water State Revolving Fund loan

program.

For over fifteen years, TCEQ has used funds from the NPS Program to

fund source water protection activities. Additionally, information

developed for the NPS Program serves as valuable information and data

about land-based contamination sources which provide valuable input into

the source water assessment process. An example of this coordination is

the Regional Aquifer Protection Programs (i.e., Edwards Aquifer) which

has provided a wealth of data for TCEQ’s assessment and protection

activities.

The hallmark of Source Water Protection is to identify a PWS’s water

source, sensitive contributing areas, possible sources of contamination
136 TCEQ/TSSWCB joint publication SFR-68/04

(PSOCs), and recommend BMPs to eliminate or minimize the threat of

contamination. These recommendations often advocate the involvement of

other agencies/organizations having relevant expertise and/or jurisdiction

to provide increased public awareness, educational programs, site-specific

protection plans (i.e. TMDL-IPs, WPPs), and local ordinances. 

Most SWP participants have implemented their programs by working

cooperatively with community members and providing public education.

The costs for implementing a SWP program are minimal and dramatically

less than remediating contaminated drinking water.

Aquifer Protection

In addition to programs already identified in this document, multiple

agencies have responsibilities related to protecting the groundwater in the

state from impacts from NPS pollution. Groundwater is water that occurs

beneath the land surface in porous or fractured rock and sediments.

Groundwater is a major source of the water used by Texans for domestic,

municipal, industrial, and agricultural purposes. 

Vulnerability of an aquifer to contamination has two components: the

environmental pathway that a contaminant would take to reach the

groundwater, and the source and type of contaminants that result from

activities conducted above the aquifer. Aquifer vulnerability is related to

the physical, hydrological and biological characteristics of the soil, the

unsaturated (non-water producing) upper portion of the aquifer and the

water-bearing portion. Characteristics such as permeability and processes

such as natural attenuation affect the movement and alteration of

contaminants. These characteristics vary greatly among aquifers in Texas,

such that aquifers have different vulnerabilities to contamination.

Different parts of the same aquifer may have different vulnerabilities. The

potential for impact on an aquifer is dependent on what activities are

occurring above an aquifer or in its recharge zone.

Groundwater contamination occurs principally in heavily populated areas

of the state, such as Houston, Dallas, Fort Worth, San Antonio, and El

Paso. Petroleum storage tank facilities are the largest category of

contamination sources, but other regulated surface activities have resulted

in contamination as well. The following is a discussion of some of the

programs in place to protect the aquifers of the state.

The Texas Groundwater Protection Committee

The Texas Groundwater Protection Committee (TGPC) is an interagency

committee that was created by the Texas Legislature in 1989 to bridge the

gap between state groundwater programs and optimize groundwater

quality protection by improving coordination among agencies involved in

groundwater protection activities. The TCEQ is designated as the lead
TCEQ/TSSWCB joint publication SFR-68/04 137

agency for the committee and provides administrative support for its

activities. 

The TCEQ partners with the Railroad Commission of Texas (RRC), Texas

Department of State Health Services (DSHS), Texas Department of

Agriculture (TDA), TSSWCB, Texas Alliance of Groundwater Districts

(TAGD), Texas Agricultural Experiment Station (TAES), Bureau of

Economic Geology (BEG), and the Texas Department of Licensing and

Regulation (TDLR). The committee works to effectively manage and

protect Texas groundwater. The TGPC works on special issues through

subcommittees composed of committee members and the general public.

The Nonpoint Source Subcommittee is an important mechanism for the

TGPC to implement and evaluate NPS activities. Recognizing the dangers

to human health and groundwater quality that abandoned water wells pose,

for example, the TGPC initiated efforts to develop educational materials to

promote low-cost, landowner-initiated closure (capping or plugging) of

abandoned water wells through the Abandoned Water Well Closure Task

Force, a sub-group of the Non-Point Source Subcommittee. 

The Agricultural Chemicals Subcommittee is another group within TGPC

that is concerned with NPS impacts resulting from the legal use of

chemicals to control insect and animal pests and unwanted vegetation. The

Agchem Subcommittee has produced the Texas State Management Plan

for Prevention of Pesticide Contamination of Groundwater, (TCEQ, 2001,

SFR-070/01), which describes the general policies and regulatory

approaches the State will use in order to protect groundwater resources

from risk of contamination by pesticides. The document describes a

generic coordinating mechanism among all responsible and participating

agencies during the implementation of the plan, and provides for specific

responses when they are deemed necessary. 

Underground Storage Tank Installer Licensing Program

Any entity who engages in the business of underground storage tank

installation, repair, or removal in Texas, must be registered with the

TCEQ as an Underground Storage Tank (UST) contractor. Individuals

who supervise the installation, repair, or removal of an underground

storage tank must be licensed by the TCEQ as a Type "A" UST installer

on-site supervisor, and any individual who supervises the permanent

removal of a UST system must be licensed as a Type "B" UST remover

on-site supervisor.

Texas Department of Licensing and Regulation

The Texas Department of Licensing and Regulation (TDLR) is charged to

protect ground water quality through the licensing of well drillers and

assuring well construction standards are enforced. A Water Well Driller is

defined as any individual who drills, bores, cores, or constructs a water
138 TCEQ/TSSWCB joint publication SFR-68/04

well. A driller may include an owner, operator, contractor, or drilling

supervisor. The program has a mandatory apprenticeship which requires

all applicants to have at least two years of drilling experience before

taking the licensing exam. TDLR has the power to suspend or revoke

licenses and set administrative penalties for incompetence or violations of

any section of Texas Occupation Code Chapters 1901 and 1902 or any

rule.

The Texas Legislature expanded the Water Well Driller functions to

include pump installers that repair wells after they have been drilled.

Pump Installers install and repair well pumps and equipment, locate and

survey abandoned wells, and repair existing wells. Regulation of this

function provides a mechanism to ensure that surface casing is completed

on wells that were drilled before the rules on surface casing existed to

prevent contamination of drinking water sources by improperly sealed

wells.

Numerous state and local programs have identified abandoned water wells

as having a significant, or potentially significant, negative impact on

groundwater quality in the state. Abandoned water wells exist in every

county and impact all of the state's aquifers. It is conservatively estimated

that 150,000 of the wells drilled since 1965 are abandoned or deteriorated.

Abandoned water wells not only serve as conduits or channels for

contamination to reach groundwater, but large diameter wells can also be

a hazard to human and animal life. In addition, uncapped, non-cemented,

deteriorated or uncased wells completed in more than one water-bearing

zone may allow poorer-quality water from one zone to co-mingle and

impact the other(s). Abandoned municipal, industrial, irrigation wells and

abandoned rig-supply, domestic or livestock wells, and unplugged

test-holes also pose threats to groundwater quality.

State law requires landowners, who possess an abandoned or deteriorated

well, to have the well plugged or capped under TDLR standards. The

landowner is liable for any water contamination or injury due to such

wells. The Abandoned Well Notification and Compliance Program,

administered by the TDLR, compiles, identifies, and processes abandoned

water well notification and enforcement cases. The TDLR can assess

administrative and civil penalties against persons who do not comply with

the provisions. Some groundwater conservation districts are implementing

well-capping and plugging programs of their own.

Additionally, the Water Well Driller/Pump Installer Program provides

advisories to water well drillers for areas with contaminant plumes or

undesirable water quality. These advisories help water well drillers avoid

impacting usable groundwater by unknowingly drilling through

contaminated zones in the areas specified. Drillers are advised to case off

and pressure grout those zones to prevent contaminant migration - another

form of NPS pollution.
TCEQ/TSSWCB joint publication SFR-68/04 139

Edwards Aquifer Protection Program

The State of Texas contains only one designated sole-source aquifer, the

Edwards Aquifer found in the central and south central portion of the

state. The Edwards Aquifer is an arcuate band of limestone and associated

formations that stretch from Bell County through Williamson, Travis,

Hays, Comal, Bexar, Medina and Uvalde counties, finally terminating in

Kinney County. All of these counties, except Bell, are subject to TCEQ

rules promulgated to protect the quality of groundwater within the aquifer.

The rules are the basis of the Edwards Aquifer Protection Program,

administered by TCEQ's Field Operations Division staff in the Austin and

San Antonio Regional Offices. The program requires anyone who plans to

build on the recharge, transition, or contributing zones of the Edwards

Aquifer, to first have an application, including construction plans,

approved by the TCEQ. Staff in the regional offices review these plans.

After a plan is approved, the site is monitored for compliance.

The rules are intended to mitigate NPS and point source impacts from

regulated development over the recharge zone, transition zone and

contributing zone of the Edwards aquifer, and, depending on location and

type of development, may require any or all of the following:

# A water pollution abatement plan (WPAP) for any regulated

activity proposed on the Edwards Aquifer recharge zone.

This includes any construction-related activity on the

recharge zone, such as, but not limited to, the construction of

buildings, utility stations, roads, highways, railroads;

clearing, excavation, or any other activities that alter or

disturb the topographic, geologic, or existing recharge

characteristics of a site; or any other activities which may

pose a potential for contaminating the Edwards Aquifer and

hydrologically connected surface streams. 

# An organized sewage collection system (SCS) plan for any

public or private sewerage system for the collection and

conveyance of sewage to a treatment and disposal system

that is regulated pursuant to rules of the commission and

provisions of Chapter 26 of the Texas Water Code. A system

includes lift stations, force mains, gravity lines, and all

appurtenances necessary for conveying wastewater from a

generating facility to a treatment plant. 

# An underground storage tank (UST) facility plan for the

installation or replacement of underground storage tanks or

piping on either the recharge or transition zones of the

Edwards Aquifer. In particular, storage tank (aboveground or

underground) facilities that will store 500 gallons or more of

static hydrocarbons or hazardous substances are regulated. 
140 TCEQ/TSSWCB joint publication SFR-68/04

# An aboveground storage tank (AST) facility plan for the

installation of permanent aboveground storage tanks at a

facility that will have a total capacity of 500 gallons or more

on either the recharge or transition zones of the Edwards

Aquifer. In particular, ASTs that will store static

hydrocarbons or hazardous substances are regulated. 

Environmental Permitting Programs

The TCEQ, RRC, DSHS, and other regulatory agencies are responsible for

permitting various activities ranging from application of pesticides to

wastewater discharge. All of these permitting programs contain some form

of NPS pollution prevention requirements, whether in the form of BMPs

or through monitoring.

TCEQ's Wastewater Permitting program, for example, routinely issues "no

discharge" permits for facilities disposing of treated wastewater effluent

via irrigation or evaporation. The effluent disposal sites must meet certain

criteria to insure that groundwater and surface water are not impacted by

percolation of contaminants or runoff from application areas. Permits

require facilities to monitor groundwater quality, sample soils for nutrient

and salt loading, and provide information on the uptake of contaminants

by cover crops in order to prevent contamination. Similar requirements are

made for sites handling or disposing of post-treatment wastewater sludge,

wastes from permitted confined animal feeding operations and wastes

from drinking water treatment facilities. 

TCEQ permits for industrial and hazardous waste generators and

management units, and municipal solid waste disposal facilities contain

provisions designed to protect groundwater and surface water from the

effects of small levels of contaminants that may escape from a facility.

This provisions include pond linings, numerous monitoring points, filter

strip areas, leak detection systems for production piping and other

measures.

The RRC establishes oil and gas well construction and plugging standards,

and requires a letter from TCEQ that establishes the location of the base of

usable quality groundwater. Wells must be constructed and plugged in

such a manner that the usable quality groundwater is protected from

contaminants that may migrate during the life of the well. In addition,

RRC authorizations by rule and permits for storage, management and

disposal of oil and gas waste, include requirements for pit liners, sampling

and monitoring, and runoff control.

Texas Department of State Health Services (DSHS), Bureau of Radiation

Control (BRC) regulates radioactive materials, including uranium

recovery and radioactive waste disposal. The BRC monitors groundwater

for radionuclides on a routine basis at several facilities. Additionally, BRC
TCEQ/TSSWCB joint publication SFR-68/04 141

regulates receipt, possession, storage, use and treatment of NORM

(Naturally Occurring Radioactive Materials). 

The Railroad Commission of Texas—Oil and Gas Well

Plugging Program

The RRC has long been active in regulating the exploration, development

and production of oil and gas in Texas, which includes protecting the

environment and maintaining public safety. The RRC began regulating oil

and gas exploration and production operations in 1919 and over time has

adopted increasingly stringent plugging standards and procedures. Statutes

to prevent pollution from unplugged wells have also been modified over

the years to increase RRC authority in this area.

The RRC has utilized the Oil Field Clean Up (OFCU) Fund to plug over

15,000 wells, however, thousands of additional abandoned wells remain.

To ensure effective and efficient use of the OFCU Fund, the RRC has

implemented a well plugging priority system to plug the wells that pose

the greatest risk to the environment. The OFCU Fund is supported entirely

by fees, penalties, and other payments collected from the oil and gas

industry. The RRC has also been working with the TCEQ to utilize Clean

Water Act CWA§319(h) grant funding to reduce chloride and total

dissolved solids levels in several watersheds.

Wetlands Protection

Wetlands are generally considered as a transition zone between land and

water where the soil is occasionally or permanently saturated with water.

Wetlands are populated with plants that are specially adapted to grow in

standing water or saturated soils. There are many different types of

wetlands, including marshes, bogs, swamps, mangroves, prairie playas,

and bottomland hardwood forests. Wetlands may not always appear to be

wet. Many wetlands dry out for extended periods of time. Other wetlands

may appear dry on the surface but are saturated with water beneath the

surface.

Saltwater wetlands fringe estuaries; freshwater wetlands border streams,

rivers, and reservoirs or occur in isolation. Generally, wetlands improve

water quality, provide critical habitat for a wide variety of fish and

wildlife, provide storage for flood waters, and stabilize shorelines.

Wetlands filter nutrient and sediment from water before it enters adjacent

water bodies and underlying groundwater aquifers.

Wetlands can be physically destroyed by filling or dewatering. Wetlands

can also be damaged by the same pollutants that degrade other water

bodies, such as nutrients, toxic substances, and oxygen demanding wastes.

Below is a discussion of some of the programs in place to protect this

precious resource.
142 TCEQ/TSSWCB joint publication SFR-68/04

The Wetlands Reserve Program

The Natural Resource Conservation Service (NRCS) administers the

Wetlands Reserve Program (WRP). The Wetlands Reserve Program is a

voluntary program that provides technical and financial assistance to

eligible landowners to address wetland, wildlife habitat, soil, water, and

related natural resource concerns on private land in an environmentally

beneficial and cost effective manner. The program provides an

opportunity for landowners to receive financial incentives to enhance

wetlands in exchange for retiring marginal land from agriculture.

The Texas Wetlands Conservation Plan

Ninety-seven percent of Texas' land is privately owned and managed.

Management decisions on these lands are made by private landholders.

Economics often dictate what these management strategies will be. The

Texas Wetlands Conservation Plan focuses on providing private

landowners with information to assist them in making informed,

economically beneficial management decisions, which will protect

wetland functions and maximize the benefits that wetlands provide.

Development of the Wetlands Conservation Plan was coordinated by the

Texas Parks and Wildlife Department (TPWD) and is intended as a guide

for wetlands conservation efforts throughout the state.

The Texas Wetlands Conservation Plan, initiated in 1988 and last updated

in 1997, focuses on non-regulatory, voluntary approaches to conserving

Texas' wetlands. It has three major goals: to enhance the landowner's

ability to use existing incentive programs and other land use options

through outreach and technical assistance; to develop and encourage land

management options that provide an economic incentive for conserving

existing or restoring former wetlands; and to coordinate regional wetlands

conservation efforts.

Wetland issues addressed in the Plan fall into five general categories:

education; economic incentives; statewide and regional conservation;

assessment and evaluation; and coordination and funding. The Plan, in

addition to providing general information and goals, highlights many

specific recommendations to enhance wetlands conservation in Texas. To

date, a shortage of funding has slowed implementation of

recommendations identified in the Plan. 

Wetlands Planning Efforts in Texas

Wetlands planning in Texas has been influenced by opportunities and

requirements initiated at the national, state, and local levels. Many public

and private sector organizations and individuals in Texas are involved in

wetlands conservation and regulation. Each organization has a unique

focus, which may include regulation, technical assistance to landowners,

funding or land restoration sites. Alone, individual entities are often
TCEQ/TSSWCB joint publication SFR-68/04 143

ill-equipped to meet wetlands conservation opportunities and challenges.

However, together they form a web of conservation opportunities. Several

planning efforts are working at the state level to address different aspects

of wetlands management and planning. 

Seagrass Conservation Plan

The Seagrass Conservation Plan was developed to address seagrass

problems in Texas over the next ten years. The TCEQ, GLO, and TPWD

endorsed conservation goals for the Seagrass Plan, which include defining

seagrass research needs, addressing management concerns, and expanding

environmental awareness in citizens through education.

Conservation Plan for State-Owned Coastal Wetlands

The State Wetlands Conservation Plan for State-Owned Coastal Wetlands

provides protection through specific actions for state-owned coastal

wetlands. The TPWD and the GLO, with assistance from other agencies,

are jointly developing this legislatively required plan. Eighteen specific

items/actions must be included in the plan. Some of these actions include a

goal of no overall net loss of state-owned wetlands, wetland mitigation

policies, a requirement for freshwater inflows to estuaries, a navigational

dredging and disposal plan, education and research regarding boating in

wetlands, the reduction of nonpoint source pollution, improved

coordination among federal and state agencies, and a plan to acquire

coastal wetlands.

Local Government Wetlands Plan

The Local Government Wetlands Plan is a demonstration project that will

incorporate the tools contained in Texas Coastal Wetlands: A Handbook

for Local Governments. The GLO will form a partnership with a local

government to develop a local wetlands plan.

Wetlands Assistance for Landowners

In 1995, a "Wetlands Assistance Guide for Landowners" was published

which describes the programs, regulations and conservation options that

affect landowners in Texas. The Landowner's Guide summarizes existing

state, federal and private programs which provide financial and technical

assistance for wetlands protection. Other topics discussed include an

assessment of landowner options for wetlands protection, a summary of

existing state and federal regulations affecting wetlands, a list of contacts,

and a description of the roles of state and federal agencies which are

involved in wetlands regulation and management.

Coastal Programs

High freshwater inflows tend to frequently flush the estuaries of the upper

coast. Lower coast estuaries have low freshwater inflows and high

residence times for natural and man-made pollutant inputs. Pollutants
144 TCEQ/TSSWCB joint publication SFR-68/04

Estuaries are coastal waters where

inflowing stream or river water mixes

with, and measurably dilutes, sea water.

In Texas, estuaries are the lower tidal

portions of rivers and streams that

directly enter the Gulf of Mexico or its

bay systems. Estuaries serve as

important nurseries for many

commercial fish and shellfish

populations, including shrimp, oysters,

crabs, and scallops.

from both local and distant sources tend to accumulate in estuaries. Most

pollutants that enter streams and rivers eventually migrate toward the

coast. As rivers approach the coast, their mouths broaden and stream

velocity decreases. The reduction in stream velocity and fluctuation of

tides from the Gulf reduce flushing and entrap nutrients and pollutants at

the head of estuarine waters. This natural trapping process establishes the

basis for highly productive estuarine ecosystems, but also makes estuaries

vulnerable to excessive pollutant loading. Thick clay soils, which persist

throughout the coast except for areas directly adjacent to large rivers,

prevent the exchange of surface and groundwater.

Rural and agricultural lands comprise almost half of the total land use/land

cover within the coastal management area. The upper Texas coast's heavy

rainfall and thick clay soils support rice cultivation. As rainfall declines

further south, dryland row crops of

cotton and grain sorghum dominate

the agricultural scene. Extensive

irrigation systems in the Lower Rio

Grande Valley support such diverse

crops as citrus, vegetables, sugar

cane, and aloe vera.

The Texas coast houses half the

nation's petrochemical industry and

more than a quarter of its refining

capacity. There are four major

urban and industrial centers on the

Texas Coast: Beaumont-Port Arthur-Orange; Houston-Galveston; Corpus

Christi; and the Lower Rio Grande Valley. In addition to dense urban and

suburban development, significant oil refining and associated

petrochemical industry infrastructure exist in the first three areas. The Rio

Grande Valley is primarily a year-round agricultural center which is

experiencing explosive population growth due to its proximity to Mexico

and an improved economy in response to the North American Free Trade

Agreement.

The steady growth of industry, as well as burgeoning marine commerce,

agriculture, commercial and recreational fishing, and a thriving tourist

trade, has intensified competition for coastal resources. Continued

economic and population growth are projected for the Texas Coast, and as

population and development increase, so do waste generation,

environmental degradation, and the risks of damage to natural systems.

The coastal areas of Texas have to deal with the same nonpoint source

pollution issues as the rest of the state, in addition to beach erosion,

salinity, and protection of important coastal estuarine and wetland

habitats. The following programs are specific to nonpoint source

management along the Texas Coast.
TCEQ/TSSWCB joint publication SFR-68/04 145

The Texas Coastal Management Program/Coastal

Coordination Council

The Texas Coastal Management Program (CMP) was created to

coordinate state, local, and federal programs for the management of Texas

coastal resources. The program brings in federal Coastal Zone

Management Act (CZMA) funds to Texas state and local entities to

implement projects and program activities for a wide variety of purposes.

The Coastal Coordination Council (CCC) administers the CMP and is

chaired by the Commissioner of the GLO. It is comprised of the chair or

appointed representatives from the TPWD, the TCEQ, the TWDB,

TxDOT, a member of the State Soil and Water Conservation Board, a

member of the RRC, the director of the Texas A&M University Sea Grant

Program and four gubernatorial appointees. These members are selected to

provide fair representation for all aspects concerning coastal issues. 

The Council is charged with adopting uniform goals and policies to guide

decision-making by all entities regulating or managing natural resource

use within the Texas coastal area. The Council reviews significant actions

taken or authorized by state agencies and subdivisions that may adversely

affect coastal natural resources to determine their consistency with the

CMP goals and policies. In addition, the Council oversees the CMP

Grants Program and the Small Business and Individual Permitting

Assistance Program.

The Coastal Zone Act Reauthorization Amendments (CZARA), §6217,

requires each state with an approved coastal zone management program to

develop a federally approvable program to control coastal nonpoint source

pollution. The Texas CCC appointed a Coastal Nonpoint Source Pollution

Control Program workgroup to develop this document. 

On April 7, 2003, the National Oceanic and Atmospheric Administration

(NOAA) recommended conditional approval of the Texas Coastal

Nonpoint Source Pollution Control Program. The document discusses the

coastal nonpoint source management area; an overview of program

implementation and coordination; presentation of specific nonpoint source

categories, the §6217 management measures, and the state rules and

programs which address pollution sources and meet the federal

requirements; information on additional management measures, technical

assistance, and public participation; and program monitoring and

evaluation.

Coastal Nonpoint Source Program

The Coastal NPS Program for Texas has been under development since

1997. To facilitate the development of the NPS Program, the Coastal

Coordination Council established a subcommittee comprised of staff from

the General Land Office, Texas Commission on Environmental Quality,
146 TCEQ/TSSWCB joint publication SFR-68/04

Texas Railroad Commission, Texas Department of Transportation, Texas

Parks and Wildlife Department, Texas State Soil and Water Conservation

Board, and a public member from the Council. This subcommittee has

addressed comments submitted by the National Oceanic and Atmospheric

Administration (NOAA) and the Environmental Protection Agency (EPA)

regarding Texas' Coastal NPS Program, reviewed and recommended

proposed NPS pollution control projects, and researched possible options

to enhance the program. 

In December 1998, Texas submitted its Coastal NPS Program to NOAA

and EPA. After two and a half years of discussion between Texas and the

federal agencies, NOAA and EPA published in the Federal Register, in

late September 2001, their intent to approve the Texas Coastal NPS

Program with certain conditions. NOAA and EPA identified six areas that

Texas must strengthen or correct prior to receiving full approval of the

Coastal NPS Program. (Table 6.1)

The second notice to conditionally approve Texas' Coastal NPS Program

was posted in the Federal Register on April 7, 2003. The Final Conditional

Approval Letter was received on July 9, 2003. Texas was given five years

to meet the remaining conditions. 

Texas continues to seek full approval by addressing the remaining

conditions in the Final Conditional Approval Letter. The Texas Coastal

Coordinating Council is preparing responses to EPA and NOAA to

address these conditions and will continue to negotiate with EPA and

NOAA for full approval. Texas anticipates full approval of the Texas

Coastal NPS Management Program by July 9, 2008, and full

implementation of this program by July 9, 2018.

Table 6.1. Texas Coastal NPS Management Program. Remaining Conditions and 

 Anticipated Year of Condition Resolution

EPA/NOAA Condition Projected Approval Year

2005 2006 2007 2008

New Development and Existing Development X

Site Development X

Watershed Protection X

New and Operating Onsite Disposal Systems X

Roads, Highways, and Bridges X

Hydromodification X
TCEQ/TSSWCB joint publication SFR-68/04 147

The National Estuary Program

The National Estuary Program (NEP) was established under §320 of the

Clean Water Act to "identify nationally significant estuaries which are

threatened by pollution, development, or overuse; promote comprehensive

planning for, and conservation and management plans for estuaries of

national significance; and enhance the coordination of estuarine research." 

There are two active estuary programs in Texas. The first was established

for the Galveston Bay system and the second was established for the bays

and estuaries along the Coastal Bend of South Texas. Each of these

estuary programs developed a Comprehensive Conservation and

Management Plan (CCMP) which recommends priority actions and

implementation schedules to address impacts observed in the estuary. The

CCMP development is a concensus-based process involving a partnership

across federal, state, and local levels. With the completion of the CCMPs,

each National Estuary Program formed a nonprofit, nonregulatory

management structure to implement its plan.

Galveston Bay Estuary Program

The Galveston Bay Estuary Program (GBEP) is a continuation of the

National Estuary Program (NEP) established for Galveston Bay in 1989.

The Galveston Bay Estuary Program is a partnership of bay stakeholders

currently working to implement the Galveston Bay Plan. The plan

contains action plans dealing with habitat and species protection,

freshwater inflows, spills and dumping, exotic species, point sources of

pollution, and nonpoint sources of pollution to protect and restore the

health of the estuary, while supporting economic and recreational

activities. Eighty-two initiatives are outlined under these nine action plans.

The GBEP takes a leading role in facilitating and coordinating the

implementation of these initiatives.

Nonpoint source pollution is the number one identified water quality

problem in Galveston Bay. Implementation of the Galveston Bay Plan

includes the following actions to address this problem: developing and

implementing a Galveston Bay public education program aimed at

reducing pollution from residential areas; compiling a Galveston Bay

BMP Performance Document to inventory nonpoint source control

techniques which have been evaluated; identifying and correcting priority

watershed pollutant problems by maintaining and publishing an inventory

of nonpoint source concerns in the bay watershed; adopting regional

construction standards for nonpoint source reduction and implementing

toxics and nutrient control practices; encouraging sewage pumpout,

storage, and provisions for treatment; and implementing storm water

programs for local municipalities.

To date, the GBEP has addressed nonpoint source pollution by convening

a forum for information sharing among Galveston Bay stakeholders

involved in nonpoint source pollution prevention/control activities,
148 TCEQ/TSSWCB joint publication SFR-68/04

providing technical assistance to local and county governments, and

educating and reaching out to children and adults. The GBEP partners

with the Houston-Galveston Area Council, the Galveston County Health

District, the Galveston Bay Foundation, and the Texas A&M Sea Grant

Program to provide technical assistance on stormwater management to

local governments; provide technical assistance to small businesses on

implementation of waste minimization strategies and general best

management practices; develop, maintain, and publish an inventory of

nonpoint source concerns in the bay watershed; implement a baywide

public education program aimed at reduction of pollution from residential

areas through illustration, presentations, and workshops; and to conduct 

voluntary inspections and provide information assistance to reduce

bacterial pollution caused by malfunctioning septic systems.

Coastal Bend Bays & Estuaries Program

The TCEQ and EPA helped establish the Coastal Bend Bays & Estuaries

Program (CBBEP) to develop and implement a plan to protect and restore

the bays and estuaries of the Texas Coastal Bend. The CBBEP has

developed a Comprehensive Conservation and Management Plan to deal 

with a wide array of problems ranging from public health and education,

freshwater flow, and loss of natural habitats. The CBBEP has

implemented the following actions to protect bays and estuaries from

nonpoint source pollution:

# A regional handbook of urban nonpoint source pollution BMPs

for voluntary use by local governments seeking to implement

nonpoint source pollution programs.

# Compliance assistance to small business and industries in the

region which are subject to NPDES permit program or have

nonpoint source controls needs.

# Assistance to local governments to implement on-site sewage

facility programs.

# Coordinate and implement agricultural water quality

management programs necessary to meet water quality standards.

Coastal Habitat Restoration

Texas Parks and Wildlife Department has an active program to restore

wetlands along the Texas Coast. These marsh creation projects establish

intertidal marsh with emergent plants along bay shorelines that are

suffering from severe erosion. These created marshes buffer shorelines

from erosion and remove both sediments flowing into the bays and

sediments that have been re-suspended by storms. These wetlands also

help remove nutrients from stormwater runoff. These newly created and

restored marshes provide habitat for a wide variety of ecologically and

economically important marine life. Typically these restoration projects

involve multiple local, state, and federal partners. Citizens also assist by
TCEQ/TSSWCB joint publication SFR-68/04 149

replanting the marshes. Including citizens increases awareness of the value

of these marshes. 

The BEACH Act

In October 2000, the U.S. Congress passed the Beaches Environmental

Assessment and Coastal Health Act of 2000 (BEACH Act) to protect the

public health at our nation's beaches. The BEACH Act requires that states,

in cooperation with the EPA, develop and implement a program to

monitor coastal recreation waters adjacent to beaches that are used by the 

public, and to notify the public if water quality standards for pathogens

and pathogen indicators are exceeded. 

The BEACH Act requires the state to identify all factors used to evaluate

and rank beaches; identify coastal recreation waters in the state; identify

bathing beaches adjacent to coastal recreational waters; develop a

sampling, monitoring, and notification program; develop a method for

issuing beach advisories and/or closings; and develop a method to notify

the public. In July 2001, the Governor's office appointed the GLO as the

lead state agency to implement the BEACH Act based upon the current

Beach Watch Program. 

The Texas Beach Watch Program gives Texans baseline data on the health

of gulf waters, making sure that beaches are safe for swimmers, surfers,

sailors and boaters. The Beach Watch Program involves county and city

governments, universities, and organizations representing beach goers.

Contractors test specified sites for Enterococcus bacteria and issue public

advisories if water samples exceed the criteria recommended by the EPA.

The Gulf of Mexico Community-Based Restoration Program

The Gulf of Mexico Community-Based Restoration Program (GCRP)

Partnership invites proposals for its citizen-driven habitat restoration

projects. The partnership funds on-the-ground activities to restore marine,

estuarine and riparian habitats. This grant program seeks to restore and

protect the health and productivity of the Gulf of Mexico in ways

consistent with the economic well being of the region. Projects must be

within the designated priority area, the Lower Laguna Madre, Texas

Coastal Bend and Bays, and Galveston Bay. 

The GCRP is a multi-year, regional partnership between the Gulf

Ecological Management Sites (GEMS) Program and the NOAA

Community-Based Restoration Program. The purpose of this partnership

was designed to strengthen the conservation efforts of the GEMS Program

by supporting on-the-ground habitat restoration benefitting living marine

resources and fostering local stewardship of ecologically significant areas

across the Gulf of Mexico.
150 TCEQ/TSSWCB joint publication SFR-68/04

The Bilge Water Reclamation Program

The GLO initiated the Bilge Water Reclamation Program as an innovative

response to the large number of spills from commercial and recreational

vessels along the Texas coast. Facilities operating under the program

collect and process bilge water that is often contaminated by petroleum

hydrocarbons from local commercial fishing vessels. The facilities provide

vessels with an environmentally responsible way to dispose of bilge water.

There is no charge to use the facility, and the used oil collected is recycled

by a local company. The cooperative development of the Bilge Water

Reclamation Program, by the GLO and its partners, has proven to have a

positive impact on water quality along the Texas coast.

Coastal Texas 2020

Coastal Texas 2020 is a long-term, statewide initiative to unite local, state,

and federal efforts to promote the environmental and economic health of

the Texas coast. One goal of Coastal Texas 2020 is to increase the state's

share of federal funding to fight rapid coastal erosion. Coastal Texas 2020

is designed to implement the vision of a comprehensive approach to

coastal issues that mixes local, state, and federal funds with money from

the private sector, while combining regulatory changes with market-based

solutions.

The Adopt-A-Beach Program

The Texas Adopt-A-Beach Program, sponsored by the GLO, is dedicated

to preserving and protecting Texas beaches by raising public awareness;

educating citizens about the source of debris; and generating public

support for state, national, and international action to clean up coastal

waters. Since the first Adopt-A-Beach Cleanup in 1986, more than

300,000 volunteers have come to the Texas coast to haul off tons of trash.

At each cleanup site, volunteers record data about the trash to learn more

about the cause of marine debris. This data has been instrumental in the

passage of international treaties and laws aimed at reducing the amount of

offshore dumping. The program's success is due to the generous efforts of

dedicated volunteer county coordinators, coastal community leaders,

sponsors, and citizens. Strong support from the private sector helps carry

the anti-litter message to Texans all across the state. 

Border Programs

Urban populations are growing rapidly in the border region, exceeding

growth throughout the rest of the state and much of the nation. The

McAllen-Edinburg-Mission area is the fourth-fastest growing

metropolitan statistical area in the U.S. On the Mexican side of the border,

population is rising even more quickly, expanding by almost 50 percent in

the past ten years. With this boom has come both an increased demand for
TCEQ/TSSWCB joint publication SFR-68/04 151

water supplies and a strain on communities' water, wastewater, and waste

management infrastructure.

The region's economy depends on agriculture, ranching, oil and gas

production, trade and commerce, industry, and tourism. Agriculture is

particularly important in the Lower Rio Grande Valley, where the lack of

an adequate supply of high quality water is threatening the livelihood of

farmers. Per capita income is lower in the border region than other parts of

Texas as a whole. Lower income results in fewer tax dollars for local

governments to meet existing needs, to keep up with rapid growth, or to

plan for the future. Communities are challenged to do more with less.

One of the greatest threats to water quality is the lack of sufficient water

and wastewater infrastructure to keep pace with border growth. A lack of

adequate service increases the likelihood that raw sewage or poorly treated

water can enter the river, elevating bacteria levels and the risk of

contracting water-borne diseases like hepatitis A. Raw sewage,

wastewater, and agricultural activity can also increase levels of nutrients

in the river. Elevated nutrient concentrations encourage algal growth and

decrease dissolved oxygen. Low dissolved oxygen endangers aquatic

plants and animals.

In addition to the need for adequate infrastructure, water quantity

problems also affect water quality in the Rio Grande. The less water

available, the more concentrated pollutants can become in the river, and

the less suitable the water becomes for municipal and agricultural use.

Groundwater throughout the border region is most threatened by

increasingly high salt content. Overuse of a groundwater resource depletes

water and increases movement of brackish water that requires more

extensive treatment to meet drinking water standards. Other causes of high

salinity include leaching of salts left in the soil by previous irrigation and

seepage of oil-field brines into the ground. Pesticide residues can also

travel into an aquifer with irrigation runoff or seepage into the soil.

Border growth also impedes communities' ability to manage the disposal

of solid and hazardous wastes. Limited disposal options leads to an

increase in illegal dumping. Improper disposal of used tires is a major

concern in the region. Hazardous waste transportation is also a concern in

border port-of entry cities , where chemical spills pose a potential threat to

public health and water supplies. The following is a discussion of some of

the programs in place to deal with the issue of water quality in the border

region.

The TCEQ Border Pollution Prevention Initiative

The Mexican government's in-bound maquiladora ("maquila") or twin

plant program allows foreign companies to establish manufacturing and

production facilities in Mexico and ship raw materials and components to

those facilities under no or low tariffs. The Maquilas have affected Texas'
152 TCEQ/TSSWCB joint publication SFR-68/04

border environment in a number of ways. One of the most significant

environmental impacts is the strain placed on the ability to manage

additional wastewater, solid waste, and hazardous waste disposal needs.

Since its inception in 1994, the TCEQ Border Pollution Prevention

Initiative has worked with maquilas, local, state, and federal governments,

and universities to reduce pollution along the border. The program has

assisted Mexican federal and border-state governments, universities, and

other institutions in developing pollution prevention and waste

minimization capability. Pollution prevention capability has been

furthered by facility site assistance visits, training events, partnerships

with universities in Mexico, and border roundtables.

The Border Environment Infrastructure Fund 

The North American Development Bank established the Border

Environment Infrastructure Fund (BEIF) in an effort to make projects

affordable, especially for the smallest and poorest communities. The

purpose of the BEIF is to make environmental infrastructure projects

affordable for communities throughout the U. S.-Mexico border region by

combining grant funds with loans or guaranties for projects that would

otherwise be financially unfeasible. A primary objective of the BEIF

assists communities in transition from highly subsidized projects to

self-sustaining projects supported locally by user fees and other revenue.

As a result, to access BEIF funds, project sponsors must demonstrate local

"buy in" with the commitment of current revenues, capital reserves, and/or

debt at the municipal or utility level.

The International Boundary and Water Commission 

The mission of the International Boundary and Water Commission

(IBWC) is to apply the rights and obligations which the Governments of

the United States and Mexico assume under the numerous boundary and

water treaties and related agreements. The United States and Mexican

sections of the IBWC, USIBWC and MxIBWC, have recently been taking

a proactive approach in support of its obligations. For example, the

USIBWC holds public meetings along the border to provide information

to the local communities on issues such as water quality, ongoing projects,

and illegal dumping, and solicits the input of the citizens in addressing

these issues. Several of the main goals of the IBWC as they relate to

nonpoint source pollution include finding solutions to border sanitation,

and working to address other border water quality problems. In order to

obtain these goals, the USIBWC has implemented the following

objectives: 

# promote successful resolution of a broad range of

trans-boundary environmental issues

# investigate and report on the most feasible measures for

solving border sanitation problems
TCEQ/TSSWCB joint publication SFR-68/04 153

# conduct various planning and environmental studies for

groundwater and border sanitation (water quality) programs

One of the key projects for dealing with border sanitation is the

construction of an international wastewater treatment plant in the City of

Nuevo Laredo. The Nuevo Laredo International Wastewater Treatment

Plant (NLIWTP) provides a high level of treatment for millions of gallons

of sewage each day originating from the City of Nuevo Laredo. The

NLIWTP directly impacts the water quality of the Rio Grande and reduces

the health risk to residents on both sides of the river. As the project

continues, the USIBWC is working with the MxIBWC and Nuevo

Laredo's Comision Municipal de Agua Potable y Alcantarillado

(COMAPA) on long-term planning for further improvements to the water

and wastewater infrastructure in Nuevo Laredo with funds provided by the

EPA.

The USIBWC also conducts water quality monitoring in support of its

mission to address border sanitation problems along the border. USIBWC

field offices located throughout the border provide local support for this

mission. In 1998, because of the international nature of the Rio Grande,

the State of Texas contracted with the USIBWC to implement the Clean

Rivers Program (CRP) for the Rio Grande in its 1,254-mile international

boundary section. This agreement has led to a more coordinated effort

between federal, state, and local agencies in addressing the water quality

of the Rio Grande. 

The Economically Distressed Areas Program

The Economically Distressed Areas Program (EDAP), administered by the

Texas Water Development Board, provides financial assistance in the

form of a grant, a loan, or a combination grant/loan to bring water and

wastewater services to economically distressed areas, where present water

and wastewater facilities are inadequate to meet the needs of residents. To

be eligible for the program, projects must be located in economically

distressed areas within affected counties and/or be located next to an

international border. The EDAP will fund construction, acquisition, or

improvements to water supply and wastewater collection and treatment

works, including all necessary engineering work. The program also

includes measures to prevent future substandard development.

The Colonias Initiatives Program 

The Colonias Initiatives Program is administered by the Texas Secretary

of State's Office. One of the greatest concerns regarding the colonias is the

lack of wastewater infrastructure, potable water, and the potentially

serious consequences for public health and its effect on quality of life. The

Colonia Incentives Program was initiated to advance efforts to get colonia

residents' homes connected to water and wastewater services in a more

expeditious manner.
154 TCEQ/TSSWCB joint publication SFR-68/04

Border Recycles Day

Border Recycles Day involves a variety of environmental events in

communities and schools as part of the statewide Texas Recycles Day

(and National America Recycles Day) on November 15th. The first Border

Recycles Day was celebrated in November 1998. Events initially were

staged in Texas border cities by the TCEQ, but local communities have

since taken ownership and created their own initiatives. Now Border

Recycles Day has been formally incorporated in the State-to-State

Strategic Environmental Plans that the TCEQ has developed with

counterpart agencies in the neighboring states of Chihuahua, New Mexico,

Coahuila, Nuevo Leon, and Tamaulipas. As a result, some Texas border

communities host sister-city events with their Mexican counterparts. 

Friends of the Rio Grande

One of the goals of the USIBWC Clean Rivers Program (CRP) is to

promote environmental awareness through public education and outreach.

TCEQ and the USIBWC CRP have teamed together to form an initiative

called Friends of the Rio Grande. The goals of this initiative are to

increase public outreach programs throughout the border region,

implement a volunteer monitoring program in cooperation with Texas

Watch, promote environmental clean ups in the basin, and to provide

recognition of outstanding efforts in environmental activities to encourage

greater participation in environmental awareness.
TCEQ/TSSWCB joint publication SFR-68/04 155

CHAPTER 7 EDUCATIONAL PROGRAMS

The active participation and cooperation of all Texans is necessary to

safeguard Texas' natural resources. Everyone who lives or works in a

watershed can potentially contribute to nonpoint source problems. Public

education and awareness is essential to involving citizens in learning

about their environment and taking appropriate actions to prevent

pollution. Implementation programs typically include an education

component to enhance public understanding and encourage participation.

In addition, a number of state, regional, and local agencies and

organizations have developed stand alone programs to educate and inform

the public on environmental issues which promote stewardship and

protection of natural resources. 

Education Through Assessment

One of the most effective ways citizens can learn about water quality and

the problems associated with nonpoint source pollution is by conducting

assessment activities. Learning about watersheds and how water quality is

assessed leads to an understanding of city planning, waste treatment, land

use and its effects on water quality, and environmental practices that

lessen the impacts of urban growth, development, and agricultural

practices on water quality. Volunteer monitoring and assessment programs

that make data readily available and easy to understand gives citizens a

sense of ownership and responsibility for their watersheds. Below is a

discussion of some of the volunteer monitoring and assessment programs

in place throughout the state that address nonpoint source pollution.

Texas Watch Volunteer Environmental Monitoring &

Education Program

The Texas Watch Program serves as a valuable resource for educating the

public about water quality issues and fostering citizen participation in

monitoring and protecting water quality. The Texas Watch Program is

administered through a cooperative partnership between Texas State

University, the TCEQ, and the EPA. The Texas Watch Program supports

NPS and other environmental education and volunteer monitoring

activities throughout the state. Texas Watch provides assistance to

participating partners by promoting and maintaining environmental

education activities, such as:

# statewide/regional meetings and workshops

# a centralized volunteer water quality database

# a comprehensive Web site

# quarterly newsletters

# a toll free information line
156 TCEQ/TSSWCB joint publication SFR-68/04

# NPS and environmental education materials

# certified monitoring training protocols and materials

The Texas Watch Program, through its varied outreach activities,

encourages individuals to adopt activities and behaviors which contribute

to the improvement of water quality and prevention of NPS pollution. The

Texas Watch Program trains and certifies students, volunteers, and other

partners to collect quality assured data that can contribute to

environmental decision making. Volunteers monitor a wide variety of

habitats from rivers, creeks, ponds, and lakes to bays, bayous, and

estuaries. In addition, Texas Watch forms watershed-based partnership

networks to help citizens identify and address local water quality issues

and concerns. The Texas Watch Partners Program solicits public and

private entities to help train, equip, manage, and offer general support to

the growing number of volunteer monitors across the state. This program

is establishing strong ties between citizens, industries, river authorities,

councils of governments, water districts, cities, local, state, and federal

agencies, students at all grade levels, and private foundations. 

The Lower Colorado River Authority—

Colorado River Watch Program

The Lower Colorado River Authority (LCRA) is a participating Texas

Watch partner. Protecting water quality in the lakes and rivers is a vital

part of the LCRA's mission. In 1988, a handful of Austin citizens,

teachers, and students began sampling water along a tributary of the

Colorado River. Within two years, their program had expanded to about

twenty sites along the Colorado. In 1992, the LCRA began to manage the

Colorado River Watch Network program, and helped expand monitoring

sites along the river from Brownwood to the Gulf of Mexico. The success

of the program has earned grants from the National Science Foundation

and the EPA. The Colorado River Watch Network has been honored by

the EPA, the State of Texas, the City of Austin, and many other

organizations.

LCRA ensures that Network monitors are well-trained. Certified monitors

must complete a 10-hour training process provided by LCRA. Instructors

show volunteers how to use the testing equipment and monitors their

practice of new data collection skills in the river. Volunteers then visit

their designated testing site along with the instructor to test for several

water quality indicators. 

Every year to coincide with Earth Day, the Colorado River Watch

Network joins with other volunteer monitors to test rivers, creeks, and

coastal waters along the Colorado River watershed. Hundreds of

volunteers participate in 20 counties along the Upper and Lower Colorado

River Basin. This one-day monitoring event provides LCRA with a

snapshot of the water quality along the river. The Network continues to
TCEQ/TSSWCB joint publication SFR-68/04 157

support environmental stewardship of dedicated teachers, students, and

other citizens who perform volunteer monitoring throughout the river

basin.

The Aquatic Experience

Public education and outreach has been an integral part of the Upper

Colorado River Authority's (UCRA) efforts to educate the public about

NPS and urban runoff abatement. The UCRA has developed an on-going

program, "The Aquatic Experience" that offers assistance to area public

schools by providing opportunities for teachers and students to be exposed

to every aspect of the aquatic environment. All topics involve "hands on"

activities to promote general water education and emphasize local water

quality issues.

Curriculum and workshops have been developed focusing on volunteer

water quality monitoring, water conservation, aquatic life, and brush

control. Assistance is provided to individuals or groups of students

wishing to plan and implement long range investigations, research,

studies, or water pollution abatement projects. "Aquatic Experience"

activities take place primarily at the UCRA offices and the adjacent North

Concho River; alternative locations, such as classrooms, or school

sponsored events are also utilized. 

Future plans for the program include development of an on-site

educational facility along the North Concho River for hands-on

experiences that will allow for the collection and identification of aquatic

organisms, identification of aquatic plants, and demonstration of an

aquatic environment. The site will contain a native and invasive plant

identification plot that will demonstrate both proper and improper

conservation practices of area water resources. The site will also contain

numerous BMPs located on existing stormwater outlets to the river.

The City of Denton Watershed Protection Program

The City of Denton Watershed Protection Program was initiated as part of

a plan to reduce the overall pollutants within the surface waters of Denton

and to ensure compliance with the National Pollution Discharge

Elimination System Storm Water Phase II rule. The Watershed Protection

Program monitors water quality around the city and the results are made

available to the public. The City of Denton received initial funding from

the EPA Environmental Monitoring for Public Access and Community

Tracking (EMPACT) grant to get the program started. Through the grant,

physical and chemical water quality data is measured and the results are

telemetered to the University of North Texas for additional analysis.

Information on water quality, including realtime water quality data, is

compiled and displayed in an easily understood format and made available

to the public via the internet. The Watershed Protection Program has used

EMPACT data and additional watershed monitoring data to establish a
158 TCEQ/TSSWCB joint publication SFR-68/04

preliminary baseline for the condition of the city's surface water resources.

This preliminary baseline data will be used to evaluate future changes in

water quality.

Education Through Implementation

Everyday activities that go on in a watershed have a direct impact on the

quality of water in the watershed. By learning how everyday activities

affect water quality, Texans can change habits to protect water resources.

The voluntary and preventive efforts of citizens, businesses, service

organizations, and other groups are an essential part of the effort to

address NPS pollution. The key to successful NPS management is making

citizens aware of the existing voluntary and preventive efforts available to

the public. The following is a discussion of the education programs in

place to make citizens aware of the activities and practices that contribute

to NPS pollution and their role in NPS management.

Nonpoint Source Consumer Education

The TCEQ has developed a variety of educational outreach materials to

increase general awareness of nonpoint source (NPS) water pollution and

stimulate actions which can be undertaken by citizens to reduce NPS

pollution. Outreach materials developed under this program target

primarily urban nonpoint issues such as pet waste, yard care, household

hazardous waste, and used motor oil. Campaign materials include radio

and television public service announcements, pet waste posters, bilingual

NPS bookmarks and door hangers, NPS fact sheets, and a Clean Water for

Texas brochure. Many of the materials can be downloaded and adapted

by organizations for local use.

Storm Drain Marking

Many Texas communities are working to reduce nonpoint source pollution

by labeling storm drain inlets with messages warning citizens not to dump

polluting materials. TCEQ has developed a how-to guide for communities

interested in starting a storm drain marking program to reduce nonpoint

source pollution. The manual covers a range of methods for labeling storm

drain inlets and offers examples of programs operating in selected Texas

cities. The purpose of the manual is to give cities and community groups

the tools to launch a successful citizen-education effort to reduce dumping

and protect local water supplies. To order this manual (GI-212), send your

request to educate@tceq.state.tx.us or call 512/239-0028.

Back Yard Composting and Xeriscaping

Backyard mulching, composting, and xeriscaping not only reduce waste,

but also benefit yards and the environment by producing healthier soil and

reducing water and fertilizer demands. Other benefits include reduced

erosion, run-off, and pollution. The TCEQ has developed a program to

help citizens and communities (through a network of regional and local
TCEQ/TSSWCB joint publication SFR-68/04 159

coordinators) teach their residents practical waste reduction and pollution

prevention through environmentally responsible yard care practices,

including grass-cycling, composting, xeriscaping, and integrated pest

management. TCEQ staff provides training programs, technical assistance,

literature, audiovisual resources, and networking opportunities that

promote voluntary diversion of yard trimmings, food scraps, clean wood

material, unrecyclable paper, and other easily composted materials from

landfills. 

Teaching Environmental Sciences

TCEQ's Teaching Environmental Sciences (TES) is a graduate credit

course developed through local resources. Since 1994, TCEQ and its

collaborators have presented classes at local colleges and universities

throughout Texas. Each summer, the TCEQ sponsors this program for

200-400 teachers who will use information learned in the course to

instruct K-12 students on the importance of air, water, and waste issues

and their impact on communities. Each course is led by a professor of

science or education and is tailored to the region in which it is offered.

Typically, much of the forty hours of instruction is spent outside the

classroom, as teachers take tours and perform field tasks, such as water

sampling and analysis. Teachers visit local industries, environmentally

sensitive sites, water and wastewater plants, air monitoring stations,

landfills, and/or recycling centers. They also hear from representatives of

regulatory agencies, businesses, and community organizations. 

Several teacher workshops are held each summer for teachers interested in

conservation and natural resource issues. The workshops are held in

various parts of the state in cooperation with the TSSWCB. The Texas

Environmental Education Advisory Committee of the Texas Education

Agency approves the content of the TSSWCB sponsored workshops. As

an approved Environmental Education Professional Development

Provider, teachers are able to get credit hours toward their required

continuing education units, while experiencing nature and the outdoors.

Environmental News You Can Use

The TCEQ offers subscribers a free service called Environmental News

You Can Use. This monthly newsletter highlights information on a

particular theme to be used to educate customers, suppliers, employees, or

students about why and how they can improve the environment. To

subscribe, send your name, mailing address, and e-mail address to

educate@tceq.state.tx.us or call 512/239-3150.

Publications and Videos

The TCEQ has many publications available to provide assistance on

everything from pollution prevention to regulatory guidance. Each year

over 30,000 books, posters, and teacher guides are ordered for school
160 TCEQ/TSSWCB joint publication SFR-68/04

classrooms. Among the items most in demand are posters and coloring

books. In addition to publications, almost a dozen videos are available on

school recycling, waste reduction and management, and pollution

prevention. The agency's publications and videos have caught the attention

of educators and environmental agencies outside of Texas. 

The Association of Texas Soil and Water Conservation Districts has

established and updates a conservation related video library that is

maintained by the TSSWCB staff on their behalf for the benefit of local

districts and educators. Currently, there are over 180 conservation-related

videos in the library available to districts and teachers at no charge.

Videos can be ordered through local soil and water conservation districts

or the TSSWCB.

Environmental Information Line

The 1-800-CLEANUP information line is a partnership with the private

sector, the EPA, and other states to provide citizens an environmental

information system that can be customized for each community. The

system provides a single source of community-specific environmental and

recycling information. Texans can call the hotline or go to

www.1800clenup.org and enter their five-digit ZIP code to find

information on local recycling, household hazardous waste collections,

and environmental events. 

Small Spill Prevention Program 

The GLO's small spill prevention program works with marinas and other

interested parties to educate the public on ways to properly dispose of oil

and reduce small spills. Small amounts of petroleum products may not kill

fish and other marine organisms, but they can affect the vision, sense of

smell, growth, and reproductive ability of marine wildlife. While small

petroleum spills may impact marine wildlife, multiple small spills have the

potential to impact entire water bodies. The Small Spill Prevention

Program is an effective way to educate the public about ways to reduce

spills and protect our marine resources.

The Texas Cooperative Extension Agricultural Outreach

Program

The Texas Cooperative Extension (TCE) is a partnership between the

USDA, Texas A&M University, and County Commissioners Courts. The

basic mission of the TCE is education and dissemination of information

relating to agriculture, home economics/consumer sciences, community

development, and 4-H/youth. County Extension Agents deliver most of

the educational programs of the TCE. These county agents, supported by

specialists based at Texas A&M University in College Station and 12

regional centers throughout Texas, provide technical information, respond

to individual problems and questions, conduct educational meetings, and
TCEQ/TSSWCB joint publication SFR-68/04 161

establish and evaluate demonstrations to show the benefits of using

practices based on the latest scientific research. They also provide

educational information through radio and television programs,

newspapers, newsletters, and bulletins. Water quality and conservation is

one of six major program issues being addressed by agents and specialists

on an interdisciplinary basis.

The TCE has the organizational framework and outreach capabilities to

help implement the informational and educational programs essential to

any voluntary pollution abatement effort. The TSSWCB works with the

TCE to develop educational programs concerning agricultural nonpoint

source pollution. 

The Texas A & M University On-Site Wastewater Treatment

Training Center

The On-Site Wastewater Treatment Training Center was established in

1997 to provide an educational mechanism for training inspectors,

installers, site evaluators, home owners, elected officials, and others

involved in the on-site wastewater treatment industry. The Texas

Agricultural Extension Service, Texas On-Site Wastewater Association,

Texas Engineering Extension Service, Texas Agricultural Experiment

Station, Texas Commission on Environmental Quality, local installers and

businesses, Texas On-Site Wastewater Treatment Research Council, and

Hidalgo County Health Department played vital roles in the planning and

construction of the South Texas International On-Site Wastewater

Treatment Training Center. Texas currently has three training centers. The

Training Centers demonstrate treatment units and land application systems

for management of wastewater. The Cooperators believe that training

centers meet the need for hands-on training concerning on-site wastewater

treatment systems. 

There are five types of wastewater processing techniques taught and

demonstrated at the Training Center. These concepts include septic tanks,

anaerobic treatment, sand filters, trickling filters and constructed wetlands.

These techniques are described later in this document as examples of best

management practices.

Don't Mess With Texas

The Texas Department of Transportation (TxDOT) maintains more acres

of right-of-way than any other state department of transportation in the

U.S. After years of collecting an increasing amount of trash from state

highways, the agency realized that a public service campaign was needed

to educate Texans about litter prevention. Two of the main components in

the campaign include the Adopt-a-Highway (AAH) program and the Don't

Mess with Texas (DMWT) program.
162 TCEQ/TSSWCB joint publication SFR-68/04

The AAH program is implemented statewide to teach Texans about litter

prevention by allowing citizens to pick up litter along Texas highways.

The program encourages litter pick-up by establishing sections of the

highway to be adopted by individuals or groups for clean-up. Upon

adopting a section of the highway, a sign will be posted along the highway

naming the individual or group who has adopted the section of the

highway. The program concept has been adopted by 47 other states and

several foreign countries. 

In 1986, TxDOT secured a local, award-winning, advertising agency to

develop a litter prevention campaign to encourage motorists to stop

littering. Better known as "Don't Mess with Texas" (DMWT), this

program was the first of its kind in the world. Research was completed to

determine what groups were contributing the most litter. This group

became the target of the litter prevention campaign. The target audience

was men under the age of 35 who predominantly drove pickup trucks.

Television and radio public service announcements featuring these

targeted Texans were created. Research allows the program to reinvent

itself periodically based upon changes in the target audience. The DMWT

Partners program was established to allow entities to donate in-kind goods

and services to the campaign. 

Keep Texas Beautiful

The vision of the Keep Texas Beautiful (KTB) organization was designed

to make Texas the most beautiful state in the nation. KTB seeks to achieve

this goal through partnerships involving government, business, civic

groups and volunteers to address litter prevention, solid waste

management, recycling, composting, beautification, and general

community improvement. KTB programs empower Texans through

education to take responsibility for enhancing their community's

environment. 

Any Texas community can become a Keep Texas Beautiful Affiliate.

Affiliates receive a variety of services to improve their effectiveness in

mobilizing grassroots volunteers to beautify their communities. KTB has

established an annual certification and recognition program for

communities with ongoing programs for litter prevention, beautification,

community improvement, and the minimization of solid waste. 

Keep Texas Beautiful sponsors and coordinates many of its education and

cleanup programs in cooperation with state agencies including the TxDOT

and the TCEQ. Keep Texas Beautiful (KTB) is currently under contract

with the TCEQ to operate the River and Lakes Cleanup Program. Each

year, KTB helps sponsor dozens of cleanups across the state in partnership

with local governments, concerned citizens, community and nonprofit

groups, schools, scout troops, businesses and companies. Volunteers pick

up litter and debris along the shores and banks of Texas lakes and rivers.
TCEQ/TSSWCB joint publication SFR-68/04 163

In return, participants receive, free of charge: trash bags, posters, T-shirts,

press releases, and volunteer incentives.

KTB has also taken a leadership role on the issue of illegal dumping and

litter law reinforcement by offering seminars and conferences, and

forming a statewide task force to share information, discuss the issue, and

develop solutions.

The Texas Wildscapes Program

The Texas Wildscapes Program emphasizes providing the basics for good

habitat: food, water, and cover. With approximately 95% of Texas land

use practices in the hands of private landowners, the importance of

education toward a common bond is evident. The Wildscapes Program

provides educational materials for the Texas urban residential landowner

to promote a better-educated population which is more supportive of

wildlife and conservation issues. The Texas Wildscapes Program can also

be applied to community, rural, and corporate properties. The program

introduces the concept of habitat, and provides information to the public

regarding wildlife needs and the importance of landscaping with native

plants. The program also promotes minimizing the use of pesticides and

fertilizers, xeriscaping, mulching, composting, and watering practices to

conserve water.

The Edwards Aquifer Authority

The Edwards Aquifer Authority, a member of the Texas Alliance of

Groundwater Districts, is a regulatory agency charged with preserving and

protecting the Edwards Aquifer in an eight-county region including all of

Uvalde, Medina and Bexar counties, plus portions of Atascosa, Caldwell,

Guadalupe, Comal and Hays counties. The Authority was created by the

Texas Legislature in 1993 with the passage of the Edwards Aquifer

Authority Act to preserve and protect this unique groundwater resource.

The Act created a 17-member board of directors which sets policy to

manage, conserve, preserve, and protect the aquifer; works to increase the

recharge; and prevent waste or pollution of the aquifer. The Act also

established the South Central Texas Water Advisory Committee made up

of representatives from downstream counties to interact with the Authority

when issues related to downstream water rights are discussed.

The goals of the Edwards Aquifer Authority are designed to fully

implement the requirements of the Edwards Aquifer Authority Act;

develop an effective, comprehensive management plan based on sound,

consensus-based scientific research and technical data; maintain

continuous spring flow; protect and ensure the quality of ground to surface

water in the Authority's jurisdiction; forge solutions that ensure public

trust; promote healthy economies in all parts of the region; research and

develop additional sources of water; and provide strong, professional

management for the Authority.
164 TCEQ/TSSWCB joint publication SFR-68/04

The Barton Springs/Edwards Aquifer Conservation District

The Barton Springs/Edwards Aquifer Conservation District (BSEACD) is

an underground water conservation district created for the purpose of

conserving, protecting and recharging the underground water bearing

formations within the District, and for the prevention of waste and

pollution of such underground water, particularly the waters in the

formations known as the Edwards Limestone and Associated Formations

in Northern Hays and Southern Travis Counties. The BSEACD, a member

of the Texas Alliance of Groundwater Districts, initiates and administers

clean up events within its district. 

The BSEACD Staff contact local schools, scouting troops, neighborhood

groups, and place ads in local papers to request volunteers for the event.

Creek clean ups are typically held on a Saturday morning in the fall or

spring when temperatures are comfortable. Volunteers meet to share

safety information, distribute bags and gloves, and pair off in groups of

two or three people to pick-up trash. Large items such as old tires, lumber,

metal signs, fencing, and appliances are collected by adult volunteers and

BSEACD staff for special pick-up and disposal.

Since many caves and sinkholes are located in rural areas which do not

have trash collection, they become the target of illegal dumping. Cave

cleanups are less frequent and require a special team of volunteers

depending on the type of cave. Removal of debris from caves is labor and

time intensive. Hoisting systems are used to remove debris from the cave.

Final phases of cave cleanup include removal of sediment laden with

broken glass and leached chemicals from debris. 

In addition to cleanup events, the BSEACD administers the Aquifer

Watch Program. The Aquifer Watch Program links junior high/middle

school students with a well near their school which is appropriate for

water quality sampling. Students visit their "adopted well" four times

during the school year. Prior to the well visit, a staff member visits the

class to provide hands-on demonstrations and training the various pieces

of equipment. During the well visit, District staff accompanies the group

and assists with measurements of the aquifer level, water sampling, and

on-site chemical analysis using titrators and spectrophotometers. Students

test their groundwater samples for temperature, pH, conductivity,

alkalinity, chlorides and nitrates. In addition to time spent in the field

collecting water samples and measuring water levels, District staff works

with the teachers and students to help them learn more about their

"adopted" well.

The City of Austin's "Grow Green" and "Earth Camp"

Recognizing that one of the most effective ways to protect water quality is

through pollution prevention, the City of Austin sponsors a variety of

educational programs designed to encourage environmentally responsible
TCEQ/TSSWCB joint publication SFR-68/04 165

behavior. One of the most comprehensive programs is "Grow Green"

which is a partnership between the City of Austin, the Texas Cooperative

Extension (TCE), and local nurseries. This program is a model for how

local government can work with the horticulture industry to protect water

quality.

The concepts developed under this program are a result of sound science

and research. The program stresses planting native and adapted plants

which require little water and few pesticides to survive in Texas. One

strategy, stressed by the City of Austin, includes reducing the use of turf

grass. Turf grass can be a high maintenance yard material, often requiring

fertilizing, disease control, and supplemental watering. Consideration of

options such as increased native and adapted plant beds or mulched or

native areas to reduce the need for additional chemicals, watering, and

mowing is emphasized.

The program recommends such practices as having soil tested to ensure

that only nutrients missing are added, leaving grass clippings on the lawn

instead of bagging them to reduce the need for fertilizer, using organic

fertilizers, and minimizing the use of pesticides and other chemical

treatments. The "Grow Green Plant Guide" was created to help residents

select beautiful native plants which are drought tolerant and resistant to

pests and diseases. In doing so, it is easier to adhere to the principles

outlined in the Grow Green Program.

Now in its ninth year, Earth Camp is the City of Austin's four-day,

outdoor, watershed education program for fifth-grade elementary school

students. The primary focus for Earth Camp Austin is educating students

about the many things necessary to the preservation of water quality in

Austin watersheds. The lessons entail study of the geography and natural

history of Austin's watersheds, water quality, wildlife in our watersheds,

hydrology and geology of the Barton Springs/Edwards Aquifer, green

gardening, and other related topics. The approach is based on field trips

with hands-on scientific investigations. Participating students are expected

to do some homework that includes family involvement and group work.

The camp runs during the school year, from September through June.

Participating teachers attend training, teach the Earth Camp curriculum

before the students attend camp, and manage and assist the students during

camp. The City of Austin provides the environmental expertise, teacher

training, field trips, tours, lessons, and equipment.

The City of Houston's WET in the City Program

Water Education for Teachers (WET), is a nationally recognized training

for urban educators that includes an interdisciplinary activity and

curriculum guide for kindergarten through 12th grades. The program helps

students learn about their local environment and how to conserve precious

natural resources.
166 TCEQ/TSSWCB joint publication SFR-68/04

Students, educators, and administrators in Team WET Schools make a

commitment to increase environmental education and stewardship in their

community. Each school's Team WET Coordinator receives technical

assistance from the City of Houston Water Conservation staff and a Team

WET Kit that includes a water test kit, guides for planning water festivals,

instructions for conducting water quality audits, and other materials for

successful student and community projects. First through 8th grade

students create their own water conservation messages to help educate

their peers and increase public awareness of conservation issues with the

"Design-a-T-Shirt Contest”.

Every year, the Mayor of Houston declares the month of May "Water

Conservation Awareness Month". The two-day event features

conservation skits, a conservation scavenger hunt, and booths sponsored

by environmental organizations, city, and county departments. Public

Works Engineering also conducts an annual program called "Water Wise

and Energy Efficient." This two-week education/retrofit program focuses

on water and energy conservation. 

In addition to the education and outreach activities, Public Works

Engineering also targets water use customers by distributing more than

20,000 "water saver" kits to citizens to help them reduce their water

consumption and water bills. The kits contain a displacement bag (1⁄2

gallon) for the toilet tank, dye tablets to test for leaks, a "tankee clipper", a

flow restrictor, and an instruction sheet. 

The City of Houston actively participates in other special events such as

National Drinking Water Week, Earth Day events, Bay Day, Home &

Garden Shows, school health fairs, and other environmentally focused

festivals and community events in order to implement a comprehensive

water conservation program for residents of all ages.

The City of Fort Worth Environmental Education Programs

The City of Fort Worth's Environmental Management Department has

established a Public Education division that offers adult information

presentations, student programs, publications, and special events about

environmental concerns in Fort Worth. Program components include

composting, environmentally friendly lawn care practices, storm water

and wastewater instruction curriculum, and waste reduction through

recycling demonstrations. 

The Department of Environmental Management has also launched a pilot

Environmental Mapping Education web site for the Fort Worth ISD. The

web site incorporates environmental science with the digital mapping of

Geographic Information Systems. Students can log onto the site and work

through online mapping, water quality, air quality, and spill response

lessons. Students interactively map local area rivers, streets, parks, and
TCEQ/TSSWCB joint publication SFR-68/04 167

watersheds. Each lesson poses a problem, and explains a step-by-step

mapping process to find a solution. 

The City of San Antonio's Curbside Recycling Program

The City of San Antonio's recycling program is the largest curbside

recycling program in the State of Texas. In 1995, the program was

initiated in a quadrant of the city and full implementation citywide was

completed in three years. The program created "Binny" the Recycling Bin

as their mascot and an advertising mechanism for the public. The

program's ultimate success is a result of public and private cooperation.

The program provides service once a week, and recyclables are collected

using an 18-gallon green recycling bin which the City has distributed to all

residents at no cost. The recyclables are collected curbside for ease of

collection. The City accepts newspaper, glass jars and bottles, aluminum

cans, plastic household jars and bottles, aerosol cans, and steel and tin

household containers. 
168 TCEQ/TSSWCB joint publication SFR-68/04

CHAPTER 8 BEST MANAGEMENT PRACTICES 

Nonpoint source management programs in Texas make use of a wide

variety of Best Management Practices (BMPs). This section provides an

overview of the primary BMPs in use or identified for use in Texas. This

is not a complete listing of all acceptable BMPs for nonpoint source

pollution control programs and projects in Texas. Whether or not projects

receive funding under CWA §319(h), the use and demonstration of

innovative practices not listed here are acceptable and valuable,

particularly where their effectiveness can be evaluated and monitored.

Definition of Best Management Practices 

Best Management Practices (BMPs) are those practices determined to be

the most efficient, practical, and cost-effective measures identified to

guide a particular activity or to address a particular problem. Nonpoint

Source BMPs are specific practices or activities used to reduce or control

impacts to water bodies from nonpoint sources, most commonly by

reducing the loading of pollutants from such sources into storm water and

waterways. Programs that implement these BMPs are addressed in

Chapter 5.

There are many NPS BMPs in use in Texas. "Best" is relative to the

particular needs or purposes and the specific site characteristics to be

addressed.

Since most BMPs address specific management needs and site

characteristics, it is helpful to identify and classify BMPs according to

where they are most effective. The next section categorizes BMPs

according to their use in managing the various parts of the NPS pollution

pathway. The final section addresses which BMPs best address different

activities and disturbances which are sources of NPS pollution.

A separate document, the BMP Finder

(www.tceq.state.tx.us/compliance/monitoring/stakeholders/nps-stakeholders.html)

provides a more comprehensive description and discussion of important

Texas NPS BMPs and guidance on their use. The BMP Finder is

extensively cross-referenced to help in identifying and comparing BMPs

which are closely related and to sort out the many different names and

variations in BMPs which are currently in use.

Categories of Nonpoint Source Pollution

Management

The management of nonpoint source pollution involves a strategic

combination of practices designed to prevent and intercept the entry of

nonpoint source pollutants into Texas waters along the entire storm water
TCEQ/TSSWCB joint publication SFR-68/04 169

pathway. Most BMPs address one specific stage of this pathway, although

they may be applied in different situations and to different sources. 

# Preventive practices: preventing or reducing the contact of

pollutants with storm water

# Cleanup practices: recapturing pollutants that have spilled onto

or contaminated a location

# Erosion control practices: protecting material at the soil surface

from entering storm water runoff

# Sediment control practices: preventing materials already

suspended in storm water from leaving a site

# Runoff control practices: reducing the volume, velocity, and/or

erosive force of storm water runoff flow

# Channel protection practices: preventing erosion of channels,

stream banks, and streambeds

# Habitat restoration practices: restoring natural communities

that minimize erosion and remove water pollutants, especially

along a waterway and its riparian zone

# In-stream remediation practices: removing nonpoint source

pollutants or restoring water quality characteristics in a

waterway 

# Other BMPs, such as public education, for example, may

address two or more of these stages in the storm water pathway

simultaneously. 

For optimum effectiveness, NPS programs should attempt to coordinate

all BMPs in a watershed. BMPs can either complement each other –

erosion control on a site typically increases the effectiveness and reduces

the size and maintenance requirements of the site's sediment controls – or

undermine each other – armoring a straight stretch of channel or stream

banks may increase flow velocity and channel erosion downstream. In

general, controlling NPS pollutants through prevention where possible is

most cost effective. Control of these pollutants generally becomes more

difficult and expensive the farther they travel down the storm water

pathway.

The first table below presents selected Texas BMPs in each of these

categories along the storm water pathway.
170 TCEQ/TSSWCB joint publication SFR-68/04

Table 8.1 Best Management Practices by Category

Management Category and Description Typical BMP Examples

Preventive BMPs

Preventive BMPs, sometimes called source controls, are

management techniques or designs that prevent or reduce

the exposure of substances to precipitation, storm water,

or surface waters. All policies and practices that prevent

the release of materials to the open air, soil, or water are

preventive BMPs. Such practices and safeguards comprise

a large part of the rules, guidelines, and permit

requirements for facility management and for the storage,

transport, processing, and disposal of wastes and

hazardous materials administered by TCEQ and other

regulatory agencies.

Planning, policy, and regulatory activities

Using alternate, less polluting materials

Housekeeping to contain and cover

materials and wastes, or keep them indoors

Minimize the extent and duration of land

disturbance activities

Well plugging

Recycling and composting, including

rainwater harvesting

Household Hazardous Waste and similar

collections

Cleanup BMPs

Cleanup BMPs remove or remediate nonpoint source

pollutants which have contaminated a specific area. In

most cases of significant contamination, the selection and

implementation of these BMPs is governed specifically

under agency rules. Other cleanup BMPs, such as cleanup

of litter or illegally disposed materials, are more

discretionary.

Spill response

Contaminated site cleanup

Trash-litter cleanup

Increased-efficiency street sweeping

Erosion Control BMPs

Erosion control BMPs maintain the integrity of the land

surface to prevent material at the surface from entering

storm water or surface water.

Mulches and blankets

Vegetation preservation and establishment 

Riprap on temporary traffic areas

Sediment Control BMPs

For material that escapes erosion control BMPs and enters

storm water runoff, the next line of defense is sediment

control. Sediment control BMPs detain runoff before it

leaves a site to filter out and/or precipitate suspended

particles, including soluble pollutants which may be

attached to solid particles.

Inlet protection

Extended detention basins

Vegetated filter strips

Sediment trap/stone outlet

Filter berms and silt fences

Sand filter systems

Constructed or restored wetlands

Run-on and Runoff Control BMPs

Runoff control BMPs reduce the volume, velocity, and

erosive force of storm water through diversion, infiltration

or absorption of storm water into the surface or through

physical impediments which slow the flow of storm

water. 

Level spreaders

Interceptor swales

Diversion dikes to exclude storm water

from off-site
TCEQ/TSSWCB joint publication SFR-68/04 171

Channel, Stream Bank, and Streambed Protection

BMPs

These BMPs protect the integrity of stream beds and

stream banks to prevent erosion and loss. Stream banks

can be protected or restored either by increasing

resistance of the bank to erosion or by decreasing the

energy of the water at the point of contact with the bank,

for example by deflecting or interrupting flows

Prevention of disturbance by exclusion of

livestock, off-road vehicles, etc.

Channel shaping to reduce velocity and

erosive force

Gabions or riprap lining of channels

Reinforcing or armoring exposed surfaces

Stream bank vegetation

Habitat Restoration BMPs

These are a special subset of biological erosion control

and stream protection BMPs. They establish or protect the

natural communities which most effectively protect

waterways and riparian areas from erosion..

Reestablish hydrology of wetlands and

riparian areas

Restoration of wetland native plant

communities

In-Stream and Lake Remediation BMPs

Once nonpoint source pollutants have affected a water

body, another set of BMPs may reduce or reverse these

effects.

Mechanical aeration to restore dissolved

oxygen

Chemical treatments – e.g. pH adjustment

Other BMPs Public education

Categories of Nonpoint Sources and Associated

Pollutants

Best Management Practices can be classified not only by management

category but also by the primary nonpoint sources of pollution and the

types of pollutant loadings and other impacts that each of these sources

tends to cause. Many BMPs are used to address a broad range of NPS

sources, particularly the erosion and sediment control BMPs.

Major Sources

# Agriculture

# Silviculture (Forestry)

# Urban storm water

# Construction (including road construction)

Special Sources

# Atmospheric deposition

# Boats and marinas

# Septic and other on-site wastewater systems

# Mining and petroleum production

# Industrial sites

# Roads

# Spill containment and contaminant remediation
172 TCEQ/TSSWCB joint publication SFR-68/04

# Hydromodification and stream bank protection

# Habitat degradation

# Wildlife

# In-stream remediation

# Underground storage tanks

Table 8.2 Best Management Practices by Source

Sources and Activities Pollutants and

Other Impacts

BMP Examples

Agriculture

Tilling, cultivation, harvesting, and

other soil surface exposure and

disturbances; chemical applications

Sediment from exposed soil;

nutrients from fertilizers;

chemicals from pesticides,

streamflow and temperature

increases caused by

vegetation removal

Animal Mortality Facility,

Alley Cropping, Brush

Management, Closure of

Waste, Impoundments,

Composting Facility,

Conservation Crop Rotation,

Constructed Wetland,

Contour Buffer Strips, Cover

Crop, Cross Wind

Stripcropping, Diversion

Dam, Dike, Filter Strip,

Firebreak, Grade

Stabilization Structure,

Grassed Waterway, Irrigation

Land Leveling, Manure

Transfer, Nutrient

Management, Pest

Management, Pond Sealing

or Lining - Bentonite

Treatment, Prescribed

Grazing, Residue

Management - No Till/strip

till, Riparian Forest Buffer,

Sediment Basin, Surface

Roughening, Terrace, Use

Exclusion, Waste Utilization,

Water and Sediment Control

Basin, Well

Decommissioning

Silviculture/Forestry

Road construction and use, timber

harvesting, mechanical equipment

operation, prescribed burning, site

preparation, fertilizer and pesticide

application 

Sediment; nutrients from

forest fertilizer application;

chemicals from pesticide

application; temperature

changes resulting from

riparian vegetation removal

and sediment additions; and

streamflow increases caused

by vegetation removal.

Broad-Based Dips;

Cross-Road Drainage

Culverts; Haul Roads; Log

Sets, Field Chipping Sets and

Portable Mill Locations;

Revegetation of Disturbed

Areas; Rolling Dips; Skid

Trails; Stream Crossings;

Streamside Management

Zones (SMZ); Salvage &

Sanitation in SMZs; Water

Bars; Wing Ditch
Sources and Activities Pollutants and

Other Impacts

BMP Examples

TCEQ/TSSWCB joint publication SFR-68/04 173

Urban and Industrial

Industrial, commercial, and

residential activities; lawn and

landscape management; pets and

wildlife; pavement and other

impervious covering of the soil;

vehicular traffic; production and

use of synthetic chemicals;

improper disposal of wastes

Sediment from disturbed

land; nutrients and pesticides

from lawn and landscape

management; pathogens and

nutrients from pet and

wildlife waste; oil and

grease; petroleum

hydrocarbons 

Clean-Up; Composting;

Animal Waste Collection;

Curb Elimination; Debris

Removal; Exposure

Reduction; Landscaping And

Lawn Maintenance Controls;

Minimization Of Pollutants,

Parking Lot/Street Cleaning

Operations, Road Salt

Controls, Streambank

Stabilization, Land Use

Management Practices,

Buffers, Easements, Solid

Waste Collection Facilities,

Extended Detention Basin,

Infiltration Device, Oil and

Grease Trap Device, Porous

Pavement, Sand Filter, Rain

Garden, Vegetative

Practices, Filter Strip,

Grassed Swale, Wetland,

Wet Retention Pond
Sources and Activities Pollutants and

Other Impacts

BMP Examples

174 TCEQ/TSSWCB joint publication SFR-68/04

Construction

Removal of the soil’s protective

cover; unpaved traffic surfaces;

earthmoving; open stockpiling of

erodible materials; 

Sediment from bare soil and

stockpiles; nutrients from

temporary and permanent

vegetation establishment;

streamflow increases caused

by vegetation removal and

impervious ground

coverings; waste chemicals

and debris from painting and

other construction wastes;

MINIMIZE EXTENT

&DURATION OF

DISTURBANCE

SURFACE

STABILIZATION 

Mulching, Preserving

Natural Vegetation,

Recontouring, Permanent

Seeding, Riprap, Sodding,

Surface Roughening,

Temporary Gravel

Construction Access,

Temporary Seeding,

Topsoiling, Erosion Control

Compost, Erosion Control

Blanket 

Runoff Diversion 

RUNOFF CONVEYANCE

MEASURES 

Grass-Lined Channel or

Swale, Hardened Channel,

Interceptor Swale,

Temporary Slope Drain,

Paved Flume, Runoff

Diversion Dike 

OUTLET PROTECTION 

Level Spreader, Outlet

Stabilization Structure 

SEDIMENT TRAPS AND

BARRIERS 

Block and Gravel Drop Inlet

Protection, Excavated Drop

Inlet Protection, Fabric

Storm Drain Inlet Protection,

Sediment Basin, Rock Dam,

Sediment Fence/Straw Bale

Barrier, Sediment Trap, Sand

Filter System, Sod Drop Inlet

Protection, Vegetated Filter

Strip, Filter Berm (rock,

sandbag, compost, mulch),

Filter Sock (compost or

mulch), Brush Barrier,

Wetlands, Wet Basin,

Extended Detention Basin 

STREAM PROTECTION 

Streambank Stabilization,

Streambed Stabilization, 

Temporary Stream Crossing 
Sources and Activities Pollutants and

Other Impacts

BMP Examples

TCEQ/TSSWCB joint publication SFR-68/04 175

Atmospheric deposition

Metals from volcanic activity,

forest fires, windblown dust,

vegetation, sea spray, the smelting

of ores, and stack and fugitive dust

(dust that escapes emission

controls).

Nitrogen from microbial

decomposition, combustion of

fossil fuels, fertilizer and

explosives factories, and

volatilization of applied ammoniabased fertilizers

Windblown pollutants of

greatest concern include

metals, such as mercury, and

nitrogen.

Pollution prevention and

emissions control measures

to reduce the exposure and

release of pollutants to the

air; also, erosion and

sediment control BMPs

reduce the entry of soilbound pollutants, including

those from atmospheric

deposition, into storm water.

Boats and marinas

Discharge of sewage, fish

cleanings, and food waste from

recreational boats;

bilge from boat ballast; paints,

pesticide, and wood preservatives;

chemicals used to deter metal

corrosion; biocidal antifouling

agents; boat and marina

construction; boat hull bottom

painting and scrapings; boat

operation and dredging activities; 

refueling activities and bilge or

fuel discharges

BOD (biological oxygen

demand) and SOD (sediment

oxygen demand); nutrients;

pathogens; metals; arsenic

from paint pigment,

pesticide, and wood

preservatives; zinc from

anodes used to deter metal

corrosion; copper and tin;

copper and other metals.

Both copper and tin (as

butyltin) have been found at

toxic concentrations in

marina waters nationwide,

deriving from boat hull

bottom paints and scrapings;

turbidity; petroleum

hydrocarbons; oil and grease

No-Wake Zones, Protected

Shallow Water Habitats,

Proper Storage and Handling

of Materials, No-Discharge

Zones, Pumpout Facilities

(Fixed-Point, Portable, and

Dedicated Slipside Systems),

Boat Repair and

Maintenance Restrictions,

Solid Waste Collection

Facilities, Fish Cleaning

Facilities/Controls

Septic and other on-site

wastewater systems

Discharges, seepage, or other

releases from failing or improperly

installed on-site wastewater

treatment systems

Nitrogen, phosphorus,

organic matter, toxic

chemicals, and bacterial and

viral pathogens

Chemical Additive

Restrictions, Elimination of

Garbage Disposals,

Inspection and Maintenance,

Phosphorus Detergent

Restrictions, Denitrification

Systems, Floating Aquatic

Plant (Aquaculture) Systems,

Upgrade or Replacement of

Failing Systems, Alternating

Bed System, Mound (Fill)

System, Pressure

Distribution (Low Pressure

Pipe) System, Point-of-Sale

Inspections, Inspection and

Permitting of Installed

Systems, Local Ordinances

Mining and petroleum

production

Salt, sediment, petroleum

hydrocarbons

Well and Testhole

Inspection; Plugging Wells

and Testholes
Sources and Activities Pollutants and

Other Impacts

BMP Examples

176 TCEQ/TSSWCB joint publication SFR-68/04

Spill containment and

contaminant remediation

Spills, leaks, or other releases of

chemicals and other pollutants

Petroleum hydrocarbons and

other toxic chemicals

HHW and Empty Pesticide

Container Collection, Storm

Drain Stenciling, Spill

Cleanup, Slurry Walls,

Grouting, Geomembranes,

Hydrodynamic Control,

Surface Seals, Surface

Drainage, Excavation, Soil

Venting, In-Situ Treatment

of Contaminants

Stream bed and stream bank

protection

Increased stream flow and erosive

force can damage and erode stream

channels

Sediment, organic matter,

nutrients

No-Wake Zones, Livestock

Exclusion, Stream Bank

Setbacks, Blankets and

Mattresses, Branch Packs,

Composite Revetment,

Gabions, Live Fascines

(Wattling Bundles), Live

Staking, Tree Revetment,

Vegetative Cover, Live

Cribwall, Check Dam,

Deflectors, Grade

Stabilization Structure, LowHead Dam (Weir)

Underground storage tanks

Spills, leaks, and other releases

Petroleum hydrocarbons and

related chemicals

Slurry Walls, Grouting,

Geomembranes, Surface

Seals, Surface Drainage,

Hydrodynamic Control,

Pumping, Interceptor

Systems, Soil Venting,

Excavation, Biological

Degradation, Chemical

Degradation, Inspection
1

 Texas Water Code (TWC) §5.012.

2 TWC §5.013.

TCEQ/TSSWCB joint publication SFR-68/04 177

APPENDIX A 

CERTIFICATION OF AUTHORITY

Kathleen White, Chairman

R. B. "Ralph" Marquez, Commissioner

Larry Soward, Commissioner

Glenn Shankle, Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing and Preventing Pollution

GENERAL COUNSEL'S CERTIFICATION

The State of Texas, through the Texas Commission on Environmental Quality (commission

or TCEQ), is currently in the process of seeking full approval for its Texas Nonpoint Source

Pollution Assessment Report and Management Program ("NPS Program"). The Environmental

Protection Agency (EPA) has given full technical approval to the NPS program. 

In accordance with Section 319(b)(2)(D) of the Clean Water Act, each management program

proposed for implementation must include:

A certification of the attorney general of the State or States (or the chief

attorney of any State water pollution control agency which has independent

legal counsel) that the laws of the State or States, as the case may be, provide

adequate authority to implement such management program or, if there is not

such adequate authority, a list of such additional authorities as will be

necessary to implement such management program .

Following a review of the referenced 2005 NPS Program, the General Counsel certifies, under

Section 319(b)(2)(D) of the Clean Water Act, that the laws of the State of Texas provide

adequate authority to implement the NPS Program, as more specifically described below.

Relevant Legal Authority

The TCEQ is the state agency given primary responsibility for implementing the constitution

and laws of the state relating to the conservation of natural resources and protection of the

environment.1

 Specifically, the commission has general jurisdiction over the state's water

quality program, including:

! the issuance of permits;

! the enforcement of water quality rules, standards, orders and permits; and

! water quality planning.2
3

 TWC §5.102.

4

 TWC §5.103.

5 TWC §26.011.

178 TCEQ/TSSWCB joint publication SFR-68/04

The commission also has the power to perform any acts whether specifically authorized by the

Texas Water Code (TWC) or other law or implied by the TWC, necessary and convenient to

the exercise to the exercise of its jurisdiction and powers.3

 The commission is also authorized

to adopt rules necessary to carry out its duties and powers.4

Chapter 26 of the TWC provides that the commission shall establish the level of quality to be

maintained in, and shall control the quality of, the water in the state.5 Waste discharges or

impending waste discharges covered by the provisions of Chapter 26 are subject to reasonable

rules or orders adopted or issued by the commission in the public interest. The commission has

also been given the powers and duties specifically prescribed by Chapter 26 and all other

powers necessary or convenient to carry out those statutory responsibilities.

Section 26.012 requires the executive director to prepare and develop a general,

comprehensive plan for the control of water quality in the state, which shall be used as a

flexible guide by the commission. Additionally, § 26.017 requires the commission to:

! encourage voluntary cooperation by the people, cities, industries, associations,

agricultural interests, and representatives of other interests in preserving the

greatest possible utility of water in the State;

! encourage the formation and organization of cooperative groups, associations,

cities, industries, and other water users for the purpose of providing a medium to

discuss and formulate plans for attainment of water quality control;

! establish policies and procedures for securing close cooperation among state

agencies that have water quality control functions; and

! cooperate with the governments of the United States and other states and with

official or unofficial agencies and organizations with respect to water quality

control matters.

Section 26.023 of the TWC provides that the commission is the sole and exclusive authority

for setting water quality standards, and must set water quality standards for the water in the

state by rule, and may amend the standards from time to time. The standards must be based

on all quality assured data obtained by the commission, including local watershed and river

basin database. The commission may also issue permits and amendments to permits for the

discharge of waste or pollutants into or adjacent to water in the state and may refuse to issue

a permit when issuance would violate the provisions of any state or federal law or rule or
6 TWC § 26.027.

7

 TWC § 26.0281.

8

 TWC § 26.042.

9

 TWC §26.127.

10 TWC §26.014.

11 TWC § 26.171 and § 26.175.

12 TWC § 26.177.

13 Id.

14 TWC § 26.046.

TCEQ/TSSWCB joint publication SFR-68/04 179

regulations.6

 The commission must also consider the compliance history of an applicant and

its operator in considering issuance, amendment or renewal of a permit to discharge effluent.7

The commission may prescribe reasonable requirements for a person making discharges of any

waste or of any pollutant to monitor and report on his activities concerning collection,

treatment, and disposal of the waste or pollutant.8 The executive director has the responsibility

for establishing a water quality sampling and monitoring program for the state. All other state

agencies engaged in water quality or water pollution control activities are statutorily required

to coordinate those activities with the commission.9 Additionally, the commission and

employees or agents of the commission are authorized to enter any public or private property

at any reasonable time for the purpose of inspecting and investigating conditions relating to

the quality of water in the state.10

Local governments may also inspect the public water in its area and may execute cooperative

agreements with the commission to provide for the performance of water quality management,

inspection, and enforcement functions and for the transfer of money or property from any party

to the agreement to another party for the purpose of water quality management, inspection,

enforcement, technical aid and education, and the construction, ownership, purchase,

maintenance, and operation of disposal systems.11 Municipalities may also establish a water

pollution control and abatement program for the city to include services and functions which,

in the judgement of the city or as may be reasonably required by the commission, will provide

effective water pollution control and abatement for the city.12 Municipal water pollution

control and abatement programs must be submitted to the commission for review and

approval.13 Further, the commission shall hold annual hearings in counties that include

particularly sensitive areas, such as the Edwards Aquifer, to receive evidence on actions the

commission should take to protect the aquifer from pollution.14 To further this goal, the

commission has adopted rules in 30 Texas Administrative Code (TAC) Chapter 213 which

regulate development activities over the Edwards Aquifer. 
15 Texas Health and Safety Code (THSC) § 366.011.

16 TWC §7.002.

17 TWC § 7.003.

18 TWC §7.051 and §7.052.

19 TWC § 7.061.

20 TWC § 7.066.

21 Texas Transportation Code, Chapter 201.

180 TCEQ/TSSWCB joint publication SFR-68/04

The commission also has broad authority over the location, design, construction, installation,

and proper functioning of on-site sewage disposal systems15 and has adopted corresponding

rules in 30 TAC Chapter 285 to encourage the use of economically feasible alternative

techniques and technologies.

Chapter 7 of the TWC establishes the enforcement authority of the commission. The

commission may initiate an action to enforce provisions of the TWC, THSC within the

jurisdiction of the commission and rules, orders, permits, or other decisions of the

commission.16 The commission must report at least once a month at a meeting of the

commission on enforcement actions taken by the commission or others and the resolution of

those actions.17 The commission may assess an administrative penalty against a person for

violations with a maximum amount of $10,000 a day for each violation.18 Persons charged with

a penalty have the option of paying it in full, paying the penalty, paying an installment, paying

or not paying in full and filing a petition for judicial review.19 If a person fails to comply with

that section, then the commission or executive director may refer the matter to the attorney

general for enforcement.20

Texas Department of Transportation

The Texas Department of Transportation (TxDOT) is the primary agency in the State

responsible for highway, road, and bridge construction. As described in the 2005 NPS

Program, TxDOT’s approach in addressing nonpoint source pollution is to limit impacts to

receiving waters through implementation of highway design specifications. TxDOT has been

conferred broad authority by the legislature.21 TxDOT and TCEQ have entered into

Memoranda of Understanding which has been adopted by reference in 30 TAC § 7.119 with

regard to the assessment of water quality impacts resulting from certain transportation projects.

Texas Railroad Commission

The Texas Railroad Commission (TRRC) is solely responsible for the control and disposition

of waste and the abatement and prevention of surface and subsurface water pollution resulting

from activities associated with the exploration, development, and production of oil and gas or

geothermal resources, including:
22 TWC § 26.131.

TCEQ/TSSWCB joint publication SFR-68/04 181

! activities associated with the drilling of injection water source wells which

penetrate the base of useable quality water;

! activities associated with the drilling of cathodic protection holes associated with

the cathodic protection of wells and pipelines subject to the jurisdiction of the

Railroad Commission of Texas;

! activities associated with gasoline plants, natural gas or natural gas liquids

processing plants, pressure maintenance plants, or repressurizing plants;

! activities associated with any underground natural gas storage facility,

! activities associated with any underground hydrocarbon storage facility; and

! activities associated with the storage, handling, reclamation, gathering,

transportation, or distribution of oil or gas before refining.22

To prevent pollution of streams and public bodies of surface water of the State, the Railroad

Commission is must adopt and enforce rules in accordance with Texas Natural Resource Code

§ 91.101 relating to the drilling of exploratory wells and oil and gas wells. Additionally, TCEQ

and TRRC have entered a Memorandum of Understanding adopted by reference in 30 TAC

§ 7.117 concerning cooperation and the division of jurisdiction between the agencies regarding

wastes that result from, or are related to, activities associated with the exploration,

development, and production of oil, gas, or geothermal resources, and the refining of oil.

Texas Parks and Wildlife Department

The Texas Parks and Wildlife Department is authorized to regulate the use of department lands

for oil, gas, and other mineral recovery and associated activities as the department considers

reasonable and necessary to protect the surface estate. The Texas Parks and Wildlife is

authorized by TWC § 26.129 to enforce the provisions of the Texas Water Code to the extent

that any violation affects aquatic life and wildlife. 

Wetlands

The United States Army Corps of Engineers (Corps) is the principle authority for all dredging

operations affecting bays and estuaries of Texas. While EPA has designated the Corps as the

implementing agency under Section 404 of the CWA, the TCEQ is responsible for completing

Section 401 Water Quality Certifications. The commission has enacted regulations in 30 TAC

Chapter 279 establishing procedures and criteria for applying for, processing, and reviewing

state certifications under CWA, §401, for activities under the jurisdiction of the agency for the

purpose maintaining the chemical, physical, and biological integrity of the state's waters

consistent with the Texas Water Code and the federal CWA. It is the policy of the commission

to achieve no overall net loss of the existing wetlands resource base with respect wetlands

functions and values in the State of Texas.

Spill Response
23TWC Chapter 26, Subchapter G.

24THSC Chapter 361.

182 TCEQ/TSSWCB joint publication SFR-68/04

The Texas Oil and Hazardous Substances Spill Prevention and Control Act provides that it is

the policy of the State to prevent the spill or discharge of hazardous substances into waters in

the State and to cause the removal of any such spills and discharges without undue delay.23

In accordance with the Act, the commission is the lead agency in spill response matters and

shall conduct spill response for the state, and shall otherwise administer the provisions of the

Act. The commission has also been designated by the Governor as the state's lead agency for

Superfund activities and as the state's representative to the federal Regional Response Team

in accordance with the Comprehensive Environmental Response, Compensation, and Liability

Act, 42U.S.C. §§ 9601- 9675; the Water Pollution Prevention and Control Act, 33 U.S.C. §§

12511387; and the National Oil and Hazardous Substances Pollution Contingency Plan, 40

CFR Part 300. Under the authority of the Solid Waste Disposal Act, the commission has broad

removal authorities with respect to the cleanup of a release or threatened release of hazardous

substances at a facility on the State registry. 24

Funding Mechanisms

The executive director, with the approval of the commission, may execute agreements with

the United States Environmental Protection Agency or any other federal agency that

administers programs providing federal cooperation, assistance, grants, or loans for research,

development, investigation, training, planning, studies, programming, and construction related

to methods, procedures, and facilities for the collection, treatment, and disposal of waste and

other water quality control activities. The commission is authorized to accept federal funds for

these purposes and for other purposes consistent with the objectives of Chapter 26 of the TWC

and may use the funds as prescribed by law or as provided by agreement.

Derek Seal

 General Counsel

Texas Commission on Environmental Quality
TCEQ/TSSWCB joint publication SFR-68/04 183
184 TCEQ/TSSWCB joint publication SFR-68/04

Appendix B 

Priority Water Bodies

The following lists of priority water bodies are based on the Texas Water Quality Inventory

and 303(d) List. In addition, the list includes some unimpaired water bodies targeted for

pollution prevention efforts such as development of Watershed Protection Plans. The water

bodies provided in these lists represent the state’s priorities for CWA §319(h) funding for

both implementation and assessment activities as defined. However, funding is not limited

to these water bodies. These lists are subject to change and will be revised as needed. 

Surface Water

Table B.1 Priority Water Bodies - Surface Water

Segment

Number

Segment Name Parameter of Concern Assessment or

Implementation

0101A Dixon Creek bacteria Assessment

0102 Lake Meredith mercury in walleye Assessment

0199A Palo Duro Reservoir depressed dissolved oxygen Assessment

0201A Mud Creek bacteria Assessment

0202D Pine Creek bacteria Assessment

0203A Big Mineral Creek bacteria Assessment

0207A Buck Creek bacteria Assessment

0211 Little Wichita River dissolved oxygen Assessment

0211 Little Wichita River total dissolved solids Assessment

0212 Lake Arrowhead See Segment 0211 Assessment

0213 Lake Kickapoo See Segment 0211 Assessment

0214A Beaver Creek depressed dissolved oxygen Assessment

0218 Wichita/North Fork Wichita

River

selenium (chronic) in water Assessment

0218A Middle Fork Wichita River selenium (chronic) in water Assessment

0299A Sweetwater Creek bacteria Assessment

0302 Wright Patman Lake high pH Assessment

0302 Wright Patman Lake depressed dissolved oxygen Assessment

0302 Wright Patman Lake high pH Assessment

0306 Upper South Sulphur River bacteria Assessment

0306 Upper South Sulphur River high pH Assessment

0306 Upper South Sulphur River depressed dissolved oxygen Assessment

0307 Cooper Lake high pH Assessment

0307 Cooper Lake depressed dissolved oxygen Assessment

0401 Caddo Lake low pH Assessment

0401 Caddo Lake mercury in largemouth bass and

freshwater drum

Assessment

0401 Caddo Lake depressed dissolved oxygen Assessment

0401A Harrison Bayou depressed dissolved oxygen Assessment

0402 Big Cypress Creek below Lake

O' the Pines

mercury in fish tissue Assessment

0402 Big Cypress Creek below Lake

O' the Pines

depressed dissolved oxygen Assessment

0402 Big Cypress Creek below Lake

O' the Pines

low pH Assessment
TCEQ/TSSWCB joint publication SFR-68/04 185

0402A Black Cypress Bayou depressed dissolved oxygen Assessment

0402A Black Cypress Bayou mercury in fish tissue Assessment

0402D Lake Daingerfield mercury in fish tissue Assessment

0403 Lake O' the Pines depressed dissolved oxygen Assessment

0404 Big Cypress Creek below Lake

Bob Sandlin

bacteria Assessment

0404B Tankersley Creek bacteria Assessment

0404D Welsh Reservoir selenium Assessment

0407 James' Bayou depressed dissolved oxygen Assessment

0409 Little Cypress Bayou (Creek) depressed dissolved oxygen Assessment

0502A Nichols Creek bacteria Assessment

0502A Nichols Creek depressed dissolved oxygen Assessment

0502A Nichols Creek chronic toxicity in water Assessment

0504 Toledo Bend Reservoir depressed dissolved oxygen Assessment

0504 Toledo Bend Reservoir mercury in largemouth bass and

freshwater drum

Assessment

0504C Palo Gaucho Bayou chronic toxicity in water Assessment

0505 Sabine River above Toledo

Bend Reservoir

bacteria Assessment

0505B Grace Creek depressed dissolved oxygen Assessment

0505B Grace Creek bacteria Assessment

0505D Rabbit Creek bacteria Assessment

0505E Brandy Branch Reservoir selenium Implementation 

Assessment

0505F Martin Creek Reservoir selenium Implementation 

Assessment

0505G Wards Creek depressed dissolved oxygen Assessment

0506 Sabine River below Lake

Tawakoni

bacteria Assessment

0507 Lake Tawakoni depressed dissolved oxygen Assessment

0507A Cowleech Fork Sabine River bacteria Assessment

0507B Long Branch bacteria Assessment

0508 Adams Bayou Tidal bacteria Assessment

0508 Adams Bayou Tidal depressed dissolved oxygen Assessment

0508A Adams Bayou above Tidal bacteria Assessment

0508B Gum Gully depressed dissolved oxygen Assessment

0508B Gum Gully bacteria Assessment

0508C Hudson Gully bacteria Assessment

0508C Hudson Gully depressed dissolved oxygen Assessment

0511 Cow Bayou Tidal bacteria Assessment

0511A Cow Bayou above Tidal depressed dissolved oxygen Assessment

0511B Coon Bayou depressed dissolved oxygen Assessment

0511B Coon Bayou bacteria Assessment

0511C Cole Creek bacteria Assessment

0511C Cole Creek depressed dissolved oxygen Assessment

0511E Terry Gully bacteria Assessment

0512A Running Creek bacteria Assessment

0512B Elm Creek bacteria Assessment

0603 B. A. Steinhagen Lake mercury in white and hybrid

white/striped bass

Assessment

0603A Sandy Creek bacteria Assessment

0604 Neches River below Lake

Palestine

lead (chronic) in water Assessment

0604A Cedar Creek bacteria Assessment
186 TCEQ/TSSWCB joint publication SFR-68/04

0604B Hurricane Creek bacteria Assessment

0605A Kickapoo Creek bacteria Assessment

0606 Neches River above Lake

Palestine

low pH Assessment

0606 Neches River above Lake

Palestine

zinc (acute) in water Assessment

0606 Neches River above Lake

Palestine

zinc (chronic) in water Assessment

0606A Prairie Creek bacteria Assessment

0607A Boggy Creek depressed dissolved oxygen Assessment

0607B Little Pine Island Bayou depressed dissolved oxygen Assessment

0608A Beech Creek depressed dissolved oxygen Assessment

0608B Big Sandy Creek bacteria Assessment

0608C Cypress Creek depressed dissolved oxygen Assessment

0608F Turkey Creek bacteria Assessment

0608G Lake Kimball mercury in fish tissue Assessment

0610 Sam Rayburn Reservoir mercury in largemouth bass and

freshwater drum

Assessment

0610 Sam Rayburn Reservoir depressed dissolved oxygen Assessment

0610A Ayish Bayou bacteria Assessment

0611 Angelina River above Sam

Rayburn Reservoir

bacteria Assessment

0611A East Fork Angelina River bacteria Assessment

0611A East Fork Angelina River lead (chronic) in water Assessment

0611A East Fork Angelina River lead in water Assessment

0611B La Nana Bayou bacteria Assessment

0611C Mud Creek bacteria Assessment

0612B Waffelow Creek bacteria Assessment

0615 Angelina River/Sam Rayburn

Reservoir

mercury in largemouth bass and

freshwater drum

Assessment

0615 Angelina River/Sam Rayburn

Reservoir

impaired fish community Assessment

0615 Angelina River/Sam Rayburn

Reservoir

depressed dissolved oxygen Assessment

0701 Taylor Bayou above Tidal depressed dissolved oxygen Assessment

0702A Alligator Bayou ambient toxicity in water Assessment

0702A Alligator Bayou ambient toxicity in sediment Assessment

0702A Alligator Bayou impaired fish community Assessment

0704 Hillebrandt Bayou depressed dissolved oxygen Assessment

0803 Lake Livingston depressed dissolved oxygen Assessment

0803 Lake Livingston high pH Assessment

0805 Upper Trinity River chlordane in tissue Implementation

0805 Upper Trinity River bacteria Assessment

0805 Upper Trinity River PCBs in fish tissue Assessment

0806 West Fork Trinity River below

Lake Worth

bacteria Assessment

0806 West Fork Trinity River below

Lake Worth

PCBs in fish tissue Assessment

0806 West Fork Trinity below Lake

Worth

chlordane in tissue Implementation

0806A Fosdic Lake chlordane in tissue Implementation

0806A Fosdic Lake DDE in tissue Implementation

0806A Fosdic Lake dieldrin in tissue Implementation

0806A Fosdic Lake PCBs in tissue Implementation
TCEQ/TSSWCB joint publication SFR-68/04 187

0806B Echo Lake PCBs in tissue Implementation

0820C Muddy Creek bacteria Assessment

0823 Lewisville Lake

City of Denton

dissolved oxygen Implementation

Assessment

0823A Little Elm Creek bacteria Assessment

0824 Elm Fork Trinity River

above Ray Roberts Lake

bacteria Assessment

0829 Clear Fork Trinity River below

Benbrook Lake

PCBs in fish tissue Assessment

0829 Clear Fork Trinity below

Benbrook Lake

chlordane in tissue Implementation

0829A Lake Como chlordane in tissue Implementation

0829A Lake Como DDE in tissue Implementation

0829A Lake Como dieldrin in tissue Implementation

0829A Lake Como PCBs in tissue Implementation

0841 Lower West Fork Trinity River PCBs in fish tissue Assessment

0841 Lower West Fork Trinity River bacteria Assessment

0841 Lower West Fork Trinity chlordane in tissue Implementation

0841A Mountain Creek Lake chlordane in tissue Implementation

0841A Mountain Creek Lake DDD in tissue Implementation

0841A Mountain Creek Lake DDE in tissue Implementation

0841A Mountain Creek Lake DDT in tissue Implementation

0841A Mountain Creek Lake dieldrin in tissue Implementation

0841A Mountain Creek Lake heptachlor epoxide in fish tissue Implementation

0841A Mountain Creek Lake PCBs in tissue Implementation

1001 Houston Ship Channel nickel Implementation

Assessment

1005 Houston Ship Channel / San

Jacinto River Tidal

nickel Implementation

1005 Houston Ship Channel/

San Jacinto River Tidal

dioxin in catfish and crab tissue Assessment

1006 Houston Ship Channel Tidal nickel Implementation

1006 Houston Ship Channel Tidal PCBs in fish tissue Assessment

1006 Houston Ship Channel Tidal dioxin in catfish and crab tissue Assessment

1006 Houston Ship Channel Tidal pesticides in fish tissue Assessment

1006 Houston Ship Channel Tidal temperature Assessment

1006 Houston Ship Channel Tidal chronic toxicity in sediment Assessment

1006D Halls Bayou below US 59 bacteria Assessment

1006E Halls Bayou above US 59 bacteria Assessment

1006F Big Gulch above Tidal bacteria Assessment

1006H Spring Gully above Tidal bacteria Assessment

1006I Unnamed Tributary of Halls

Bayou 

bacteria Assessment

1006J Unnamed Tributary of Halls

Bayou 

bacteria Assessment

1007 Houston Ship Channel/Buffalo

Bayou Tidal

nickel Implementation

Assessment

1007 Houston Ship Channel/Buffalo

Bayou Tidal

PCBs in fish tissue Assessment

1007 Houston Ship Channel/Buffalo

Bayou Tidal

pesticides in fish tissue Assessment

1007 Houston Ship Channel/Buffalo

Bayou Tidal acute toxicity in sediment

Assessment
188 TCEQ/TSSWCB joint publication SFR-68/04

1007 Houston Ship Channel/Buffalo

Bayou Tidal

dioxin in catfish and crab tissue Assessment

1007B Brays Bayou above Tidal bacteria Assessment

1007C Keegans Bayou above Tidal bacteria Assessment

1007D Sims Bayou above Tidal bacteria Assessment

1007E Willow Waterhole Bayou above

Tidal 

bacteria Assessment

1007F Berry Bayou above Tidal bacteria Assessment

1007G Kuhlman Gully above Tidal bacteria Assessment

1007H Pine Gully above Tidal depressed dissolved oxygen Assessment

1007H Pine Gully above Tidal bacteria Assessment

1007I Plum Creek above Tidal depressed dissolved oxygen Assessment

1007I Plum Creek above Tidal bacteria Assessment

1007K Country Club Bayou above

Tidal 

depressed dissolved oxygen Assessment

1007K Country Club Bayou above

Tidal 

bacteria Assessment

1007L Unnamed Non-Tidal Tributary

of Brays Bayou 

bacteria Assessment

1007M Unnamed Non-Tidal Tributary

of Hunting Bayou 

bacteria Assessment

1007N Unnamed Non-Tidal Tributary

of Sims Bayou 

bacteria Assessment

1007O Unnamed Non-Tidal Tributary

of Buffalo Bayou 

bacteria Assessment

1007O Unnamed Non-Tidal Tributary

of Buffalo Bayou 

depressed dissolved oxygen Assessment

1007P Brays Bayou above Tidal bacteria Assessment

1007Q Sims Bayou above Tidal depressed dissolved oxygen Assessment

1007Q Sims Bayou above Tidal bacteria Assessment

1007R Hunting Bayou above Tidal bacteria Assessment

1007R Hunting Bayou above Tidal depressed dissolved oxygen Assessment

1008 Spring Creek bacteria Assessment

1009 Cypress Creek bacteria Assessment

1013 Buffalo Bayou Tidal bacteria Assessment

1013 Buffalo Bayou Tidal nickel Assessment

Implementation

1013A Little White Oak Bayou depressed dissolved oxygen Assessment

1013A Little White Oak Bayou bacteria Assessment

1013C Unnamed Non-Tidal Tributary

of Buffalo Bayou Tidal 

bacteria Assessment

1014 Buffalo Bayou above Tidal bacteria Assessment

1014 Buffalo Bayou above Tidal nickel Assessment

Implementation

1014H South Mayde Creek bacteria Assessment

1014K Turkey Creek bacteria Assessment

1014M Neimans Bayou bacteria Assessment

1014M Neimans Bayou depressed dissolved oxygen Assessment

1014N Rummel Creek bacteria Assessment

1014O Spring Branch bacteria Assessment

1016 Greens Bayou above Tidal bacteria Assessment

1016 Greens Bayou above Tidal nickel Assessment

Implementation

1016A Garners Bayou bacteria Assessment
TCEQ/TSSWCB joint publication SFR-68/04 189

1016B Unnamed Tributary of Greens

Bayou 

bacteria Assessment

1016C Unnamed Tributary of Greens

Bayou 

bacteria Assessment

1016D Unnamed Tributary of Greens

Bayou 

bacteria Assessment

1016D Unnamed Tributary of Greens

Bayou 

depressed dissolved oxygen Assessment

1017 Whiteoak Bayou above Tidal nickel Assessment

Implementation

1017 Whiteoak Bayou above Tidal bacteria Assessment

1017A Brickhouse Gully/Bayou bacteria Assessment

1017B Cole Creek bacteria Assessment

1017D Unnamed Tributary of White

Oak Bayou 

depressed dissolved oxygen Assessment

1017D Unnamed Tributary of White

Oak Bayou 

bacteria Assessment

1017E Unnamed Tributary of White

Oak Bayou 

bacteria Assessment

1101 Clear Creek Tidal chlordane in tissue Implementation

1101 Clear Creek Tidal bacteria Implementation

1101 Clear Creek Tidal dichloroethane in fish and crab tissue Implementation

1101 Clear Creek Tidal trichloroethane in tissue Implementation

1101B Chigger Creek bacteria Implementation

1102 Clear Creek above Tidal chlordane in tissue Implementation

1102 Clear Creek above Tidal dichloroethane in fish and crab tissue Implementation

1102 Clear Creek above Tidal bacteria Implementation

1102 Clear Creek above Tidal trichloroethane in tissue Implementation

1102A Cowart Creek bacteria Assessment

1102B Mary's Creek/ North Fork

Mary's Creek 

bacteria Assessment

1103 Dickinson Bayou Tidal bacteria Assessment

1103 Dickinson Bayou Tidal depressed dissolved oxygen Assessment

1103A Bensons Bayou bacteria Assessment

1103B Bordens Gully bacteria Assessment

1103C Geisler Bayou bacteria Assessment

1103D Gum Bayou bacteria Assessment

1104 Dickinson Bayou local

Initiative Watershed Plan

bacteria Assessment

1113 Armand Bayou above Tidal dissolved oxygen Implementation

Assessment

1113A Armand Bayou above Tidal bacteria Assessment

1202H Allen's Creek bacteria Assessment

1202J Big Creek bacteria Assessment

1205 Lake Granbury bacteria Implementation

Assessment

1209 Navasota River below 

Lake Limestone

bacteria Assessment

1209C Carters Creek bacteria Assessment

1209G Cedar Creek bacteria Assessment

1209I Gibbons Creek bacteria Assessment

1209I Gibbons Creek depressed dissolved oxygen Assessment

1209J Shepherd Creek bacteria Assessment

1209K Steele Creek bacteria Assessment

1210A Navasota River above bacteria Assessment
190 TCEQ/TSSWCB joint publication SFR-68/04

Lake Mexia 

1211A Davidson Creek bacteria Assessment

1212 Somerville Lake low and high pH Assessment

1212B East Yegua Creek bacteria Assessment

1214 Colorado River choloride Assessment

1214 Colorado River sulfate Assessment

1214 Colorado River total dissolved solids Assessment

1217 Lampasas River above

Stillhouse Hollow Lake

bacteria Assessment

1217A Rocky Creek depressed dissolved oxygen Assessment

1218 Nolan Creek/ South Nolan

Creek

bacteria Assessment

1221 Leon River Below Proctor Lake bacteria Assessment

1222 Proctor Lake depressed dissolved oxygen Assessment

1222A Duncan Creek bacteria Assessment

1226 North Bosque River orthophosphorus Implementation

1226B Green Creek bacteria Assessment

1226E Indian Creek bacteria Assessment

1226F Sims Creek bacteria Assessment

1227 Nolan River bacteria Assessment

1242 Brazos River above 

Navasota River

bacteria Assessment

1242D Thompson Creek bacteria Assessment

1242D Thompson Creek depressed dissolved oxygen Assessment

1242I Campbells Creek bacteria Assessment

1242K Mud Creek bacteria Assessment

1242L Pin Oak Creek bacteria Assessment

1242M Spring Creek bacteria Assessment

1242N Tehuacana Creek bacteria Assessment

1242P Big Creek bacteria Assessment

1243 Salado Creek depressed dissolved oxygen Assessment

1245 Upper Oyster Creek depressed dissolved oxygen Assessment

1245 Upper Oyster Creek bacteria Assessment

1246E Wasp Creek bacteria Assessment

1247 Lake Granger Watershed Plan sediment Assessment

Implementation

1247A Willis Creek bacteria Assessment

1248 San Gabriel/North Fork San

Gabriel River

total dissolved solids Assessment

1254 Aquilla Reservoir atrazine in finished drinking water Assessment

1254 Aquilla Reservoir atrazine in finished drinking water Implementation

1255 Upper North BosqueRiver orthophosphorus Implementation

1255A Goose Branch bacteria Assessment

1255B North Fork Upper North

Bosque River 

bacteria Assessment

1255C Scarborough Creek bacteria Assessment

1255D South Fork North Bosque River bacteria Assessment

1255E Unnamed tributary of Goose

Branch 

bacteria Assessment

1255F Unnamed tributary of

Scarborough Creek 

bacteria Assessment

1255G Woodhollow Branch bacteria Assessment

1302 San Bernard River above Tidal bacteria Assessment

1305 Caney Creek above Tidal bacteria Assessment
TCEQ/TSSWCB joint publication SFR-68/04 191

1403 Lake Austin dissolved oxygen Implementation

1403A Bull Creek impaired macrobenthos community Assessment

1403J Spicewood Tributary to Shoal

Creek 

bacteria Assessment

1403K Taylor Slough South bacteria Assessment

1411 E.V. Spence Reservoir sulfate Implementation

1411 E.V. Spence Reservoir total dissolved solids Implementation

1411 E.V. Spence Reservoir total dissolved solids Assessment

1420 Pecan Bayou above Lake

Brownwood

depressed dissolved oxygen Assessment

1421 Concho River impaired macrobenthos community Implementation

Assessment

1422 Lake Nasworthy See Segments 1421 & 1425 Implementation

Assessment

1423 Twin Buttes Reservoir See Segments 1421 & 1425 Implementation

Assessment

1424 Middle Concho/South Concho

River

See Segments 1421 & 1425 Implementation

Assessment

1425 O.C. Fisher Lake total dissolved solids Implementation

Assessment

1425 O.C. Fisher Lake chloride Implementation

Assessment

1426 Colorado River below E. V.

Spence Reservoir

chloride Assessment

1426 Colorado River below E. V.

Spence Reservoir

total dissolved solids Assessment

1427 Onion Creek depressed dissolved oxygen Assessment

1427A Slaughter Creek impaired macrobenthos community Assessment

1428C Gilleland Creek bacteria Implementation 

1429B Eanes Creek bacteria Assessment

1429C Waller Creek impaired macrobenthos community Assessment

1604 Lake Texana depressed dissolved oxygen Assessment

1801 Guadalupe River Tidal depressed dissolved oxygen Assessment

1803A Elm Creek bacteria Assessment

1803B Sandies Creek bacteria Assessment

1803C Peach Creek bacteria Assessment

1806 Guadalupe River above

Canyon Lake

bacteria Assessment

1806A Camp MeetingCreek depressed dissolved oxygen Assessment

1901 Lower San Antonio River bacteria Assessment

1906 Lower Leon Creek bacteria Assessment

1906 Lower Leon Creek depressed dissolved oxygen Assessment

1908 Upper Cibolo Creek depressed dissolved oxygen Assessment

1910 Salado Creek dissolved oxygen Implementation

1910 Salado Creek bacteria Assessment

1910 Salado Creek depressed dissolved oxygen Assessment

1910A Walzem Creek bacteria Assessment

1911 Upper San Antonio River bacteria Implementation

Assessment

1913 Mid Cibolo Creek depressed dissolved oxygen Assessment

2104 Nueces River above Frio River depressed dissolved oxygen Assessment

2107 Atascosa River bacteria Assessment

2110 Lower Sabinal River nitrate+nitrite nitrogen Assessment

2113 Upper Frio River depressed dissolved oxygen Assessment
192 TCEQ/TSSWCB joint publication SFR-68/04

2116 Choke Canyon Reservoir total dissolved solids Assessment

2116 Choke Canyon Reservoir bacteria Assessment

2117 Frio River above Choke

Canyon Reservoir

bacteria Assessment

2117 Frio River Above Choke

Canyon Reservoir

depressed dissolved oxygen Assessment

2201 Arroyo Colorado Tidal depressed dissolved oxygen Implementation

Assessment

2201 Arroyo Colorado Tidal ambient toxicity in sediment Assessment

2202 Arroyo Colorado above Tidal organic compounds in fish tissue Assessment

2202 Arroyo Colorado above Tidal chlordane in tissue Implementation

2201 Arroyo Colorado depressed dissolved oxygen Implementation

Assessment

2202 Arroyo Colorado above Tidal DDE in tissue Implementation

2202 Arroyo Colorado above Tidal other organic compounds in tissue Implementation

2202 Arroyo Colorado above Tidal toxaphene in tissue Implementation

2202A Donna Reservoir PCBs in tissue Implementation

2304 Rio Grande below Amistad

Reservoir

ambient toxicity in water Assessment

2306 Rio Grande above Amistad

Reservoir

ambient toxicity in water Assessment

2306 Rio Grande above Amistad

Reservoir

bacteria Assessment

2307 Rio Grande below Riverside

Diversion Dam

bacteria Assessment

2310 Lower Pecos River chloride Implementation

Assessment

2310 Lower Pecos River sulfate Implementation

Assessment

2310 Lower Pecos River total dissolved solids Implementation

Assessment

2311 Upper Pecos River See Segment 2310 Implementation

Assessment

2314 Rio Grande above

International Dam

bacteria Assessment

2421 Upper Galveston Bay bacteria (oyster waters) Assessment

2421 Upper Galveston Bay dioxin in catfish and crab tissue Assessment

2422 Trinity Bay bacteria (oyster waters) Assessment

2423 East Bay bacteria (oyster waters) Assessment

2424 West Bay bacteria (oyster waters) Assessment

2424A Highland Bayou bacteria Assessment

2424A Highland Bayou depressed dissolved oxygen Assessment

2424C Marchand Bayou depressed dissolved oxygen Assessment

2424C Marchand Bayou bacteria Assessment

2425 Robinson Bayou bacteria Implementation

2425B Jarbo Bayou bacteria Assessment

2425C Robinson Bayou bacteria Assessment

2426 Tabbs Bay nickel Implementation

Assessment

2426 Tabbs Bay bacteria Assessment

2426 Tabbs Bay dioxin Assessment

2427 San Jacinto Bay dioxin Assessment

2428 Black Duck Bay dioxin Assessment

2428 Black Duck Bay nickel Assessment

Implementation
TCEQ/TSSWCB joint publication SFR-68/04 193

2429 Scott Bay bacteria Assessment

2429 Scott Bay dioxin Assessment

2429 Scott Bay nickel Assessment

Implementation

2430 Burnett Bay dioxin Assessment

2430 Burnett Bay nickel Assessment

Implementation

2432 Chocolate Bay bacteria (oyster waters) Assessment

2436 Barbours Cut dioxin Assessment

2436 Barbours Cut nickel Assessment

Implementation

3438 Bayport Channel dioxin Assessment

2439 Lower Galveston Bay bacteria (oyster waters) Assessment

2441 East Matagorda Bay bacteria (oyster waters) Assessment

2442 Cedar Lakes bacteria (oyster waters) Assessment

2451 Matagorda Bay/Powderhorn

Lake

bacteria (oyster waters) Assessment

2451 Matagorda Bay/Powderhorn

Lake

depressed dissolved oxygen Assessment

2452 Tres Palacios Bay/Turtle Bay bacteria (oyster waters) Assessment

2452 Tres Palacios Bay/Turtle Bay depressed dissolved oxygen Assessment

2453 Lavaca Bay/Chocolate Bay depressed dissolved oxygen Assessment

2453 Lavaca Bay/Chocolate Bay mercury in water Assessment

2453 Lavaca Bay/Chocolate Bay bacteria (oyster waters) Assessment

2453 Lavaca Bay/Chocolate Bay mercury in fish and crab tissue Assessment

2456 Carancahua Bay high pH Assessment

2456 Carancahua Bay depressed dissolved oxygen Assessment

2456 Carancahua Bay bacteria (oyster waters) Assessment

2462 San Antonio Bay/Hynes

Bay/Guadalupe Bay

bacteria (oyster waters) Assessment

2472 Copano Bay/Port Bay/Mission

Bay

bacteria (oyster waters) Assessment

2482 Nueces Bay zinc in oyster tissue Assessment

2482 Nueces Bay selenium Assessment

2483A Oso Creek depressed dissolved oxygen Assessment

2485 Oso Bay depressed dissolved oxygen Implementation

Assessment

2491 Laguna Madre depressed dissolved oxygen Assessment

2501 Gulf of Mexico mercury in king mackerel > 43 inches Assessment

2501 Gulf of Mexico depressed dissolved oxygen Assessment
194 TCEQ/TSSWCB joint publication SFR-68/04

Groundwater

Table B.2 Priority Water Bodies - Groundwater

Aquifer Region Constituent(s) of Concern Implementation or

Assessment?

Edward (BFZ) Central Texas Vulnerability Implementation

Assessment

Cenezoic Pecos Alluvium West Texas Nitrate, Chloride, Sulfate,

and TDS

Assessment

Edwards Trinity (Plateau) Terrell, Reagan, and

Crockett Counties

Nitrate Assessment

Ogallala Southern High Plains,

Panhandle

Nitrate Assessment

Gulf Coast Rio Grande Valley Nitrate, Iron, TDS Assessment

Seymour North Central Nitrate, Vulnerability Assessment

Blaine North Central Nitrate, Chloride, Iron,

Sulfate, TDS

Assessment

Lipan Concho, Runnels, Tom

Green, and Coke Counties

Nitrate, Chloride, TDS Assessment

Bone Spring-Victorio Peak Far West Texas Nitrate, Chloride,

Fluoride, Sulfate, TDS

Assessment

Trinity Central Texas North -

Outcrop Area Only

Nitrate Assessment

Dockum Panhandle, West Texas -

Outcrop Area Only

Nitrate Assessment

Edwards-Trinity (High

Plains) 

Southern High Plains Nitrate Assessment

Marathon Big Bend Area Nitrate Assessment

Capitan Reef West Texas Chloride, Dissolved

Solids, Radioactivity

Assessment

Hickory Llano Uplift Radioactivity Assessment

Hueco - Mesilla Far West Texas Sulfate Assessment

Brazos River Alluvium Southeast Texas Iron, Manganese Assessment

Rustler Culberson, Reeves

Counties

Iron, Sulfate, TDS,

Radioactivity

Assessment
TCEQ/TSSWCB joint publication SFR-68/04 195

APPENDIX C

OVERVIEW OF CURRENT PRIORITY WATERSHEDS,

MILESTONES, AND ESTIMATED TIMELINES

Priority Water Body Summary

The Milestone Summary Table presents an overview of estimated completion times for

milestones on Texas’ priority waterbodies. The individual tables for priority waterbodies,

which follow the Milestone Summary Table, provide similar information but in greater detail.

Milestones:

A. Stakeholder Group -Employ or develop a Local Watershed Committee to solicit input and encourage the participation

of affected stakeholders in the decision-making process.

B. Data Review -Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an

inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

C. Targeted Assessment -Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and

distribution of pollutants.

D. Modeling -Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for

implementation.

E. Action Plan -Develop a detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load

allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

F. Implementation -Implement voluntary and regulatory actions in the watershed and adjust the BMP implementation

based on follow-up verification monitoring of effectiveness.
196 TCEQ/TSSWCB joint publication SFR-68/04

Table C.1. Milestone Summary Table

Waterbody 2005 2006 2007 2008 2009 

Assessing AquaticLife Use in Tidal Streams

Targeted

Assessment

Modeling Action Plan

Aquilla Reservoir Implementation Implementation Implementation Implementation ImplementaArmand Bayou Local InitiativeWatershed Plan Implementation Implementation Implementation

Action Plan

Implementa

Implementation

Arroyo Colorado-D.O.

Implementation

Action Plan Implementation Implementation Implementa

Implementation

Arroyo Colorado LegacyPollutants Implementation

Targeted

Assessment

Implementation Implementation

Targete

Assessme

Implementation Implementa

Brandy Branch Reservoir Implementation Implementation Implementation Implementation Implementa

Buck Creek

Implementation

Targeted

Assessment

Action Plan

Implementation Implementa

Implementation Implementation

Buffalo and White Oak Bayous Data Review

Action Plan

Action Plan

Implementation Implementa

Targeted

Assessment

Implementation

Cedar Lake

Implementation

Stakeholder Group

Implementation

Action Plan

Targeted Implementa

Assessment

Implementation

Modeling

City of Denton Watershed Plan(Hickory Creek)

Stakeholder Group Targeted

Assessment

Action Plan

Implementation Implementa

Data Review Implementation Implementation
Waterbody 2005 2006 2007 2008 2009 

TCEQ/TSSWCB joint publication SFR-68/04 197

Clear Creek Legacy and VOCPollutants

Targeted

Assessment

Targeted

Assessment

Targeted

Assessment

Targeted

Assessment

Targete

Assessme

Implementation Implementation Implementation Implementation Implementa

Clear Creek Watershed

Implementation Implementation Implementation

Targeted

Assessment Implementa

Implementation

Clear Fork of the Trinity Action PlanCoastal Bend Bays Plan Implementation Implementation Implementation Implementation ImplementaColorado and San GabrielRivers, Brushy and PetronillaCreeks

Modeling

Implementation

Action Plan

Implementation Implementa

Implementation Implementation

Concho River Basin Stakeholder Group Targeted

Assessment

Action Plan

Implementation Implementa

Data Review Implementation Implementation

Copano Bay Oysters

Implementation

Stakeholder Group

Implementation Implementation Implementa

Modeling

Action Plan

Implementation

Dallas Legacy Pollutants Targeted

Assessment

Targeted

Assessment

Targeted

Assessment

Targeted

Assessment

Targete

Assessme

Implementation Implementation Implementation Implementation Implementa

Dickinson Bayou

Modeling

Action Plan Implementation Implementation Implementa

Implementation
Waterbody 2005 2006 2007 2008 2009 

198 TCEQ/TSSWCB joint publication SFR-68/04

E.V. Spence Implementation Implementation Implementation Implementation ImplementaFort Worth Legacy Pollutants Targeted

Assessment

Targeted

Assessment

Targeted

Assessment

Targeted

Assessment

Targete

Assessme

Implementation Implementation Implementation Implementation Implementa

Galveston Bay Plan Implementation Implementation Implementation Implementation ImplementaGilliand Creek

Implementation

Stakeholder Group Action Plan

Implementation Implementa

Modeling Implementation

Implementation

Guadalupe above Canyon

Implementation

Stakeholder Group Action Plan

Modeling Implementation Implementation Implementa

Implementation

Gulf Coast Oyster Waters Action Plan

Implementation Implementation Implementation Implementa

Implementation

Houston Ship Channel Dioxin Study

Modeling Modeling Action Plan Action Plan

Implementa

Implementation Implementation Implementation Implementation

Houston Ship Channel Nickel Study

Implementation Implementation Implementation Implementation Implementa

Lake Austin Implementation Implementation Implementation Implementation ImplementaLake Granbury Stakeholder Group Targeted

Assessment

Action Plan

Implementation Implementa

Data Review Implementation Implementation 
Waterbody 2005 2006 2007 2008 2009 

TCEQ/TSSWCB joint publication SFR-68/04 199

Lake Granger Watershed Plan Stakeholder Group Stakeholder Group Targeted

Assessment

Action Plan

Implementa

Implementation Implementation Implementation Implementation

Lake ‘O the Pines

Action Plan

Implementation Implementation Implementation Implementa

Implementation

Lavaca and Chocolate Bays

Implementation Implementation Implementation Implementation Implementa

Little Wichita Stakeholder Group Targeted

Assessment

Action Plan

Implementation Implementa

Data Review Implementation Implementation

Martin Creek Reservoir Implementation Implementation Implementation Implementation ImplementaMatagorda Bay / Tres Palacios Bay Implementation

Stakeholder Group Action Plan

Modeling Implementation Implementation Implementa

Implementation

Middle Brazos River Basin

Modeling

Implementation Implementation Implementation Implementa

Action Plan

North Bosque River Implementation Implementation Implementation Implementation Implementa

Nueces Bay Zinc Project

Implementation

Action Plan Action Plan

Implementation Implementa

Implementation Implementation

Orange County Modeling Action Plan

Implementation Implementation Implementa

Implementation Implementation
Waterbody 2005 2006 2007 2008 2009 

200 TCEQ/TSSWCB joint publication SFR-68/04

Oso Bay Targeted

Assessment

Modeling Action Plan

Implementation Implementa

Modeling Action Plan Implementation

Oso Creek and Oso Bay 

Implementation

Stakeholder Group Action Plan

Implementation Implementa

Data Review

Implementation

Targeted

Assessment

Modeling

Pecos Watershed Plan Stakeholder Group Targeted

Assessment

Action Plan

Implementation Implementa

Data Review Implementation Implementation

Sabinal River

Implementation

Stakeholder Group

Implementation

Action Plan

Targeted Implementa

Assessment

Implementation

Modeling

Salado Creek Implementation Implementation Implementation Implementation ImplementaSan Antonio River Authority Stakeholder Group Targeted

Assessment

Action Plan

Implementation Implementa

Data Review Implementation Implementation

San Antonio River Basin, LeonRiver, and Peach Creek

Modeling Modeling Action Plan

Implementation Implementa

Implementation Implementation Implementation

South Central Texas Modeling

Implementation Implementation Implementation Implementa

Action Plan
Waterbody 2005 2006 2007 2008 2009 

TCEQ/TSSWCB joint publication SFR-68/04 201

Tarrant Regional Water DistrictWatershed Plans

Stakeholder Group Targeted

Assessment

Targeted

Assessment

Targeted

Assessment

Targete

Assessme

Data Review

Implementation

Action Plan

Implementation Implementa

Targeted

Assessment Implementation

Modeling

Implementation

Trinity River

Implementation

Stakeholder Group Action Plan

Implementation Implementa

Modeling Implementation

Upper Oyster Creek Targeted

Assessment

Targeted

Assessment

Action Plan

Implementation Implementa

Modeling Modeling Implementation

Welsh Reservoir Implementation Implementation Implementation Implementa
202 TCEQ/TSSWCB joint publication SFR-68/04

Table C.2. Individual Priority Waterbody Tables

Armand Bayou Local Initiative Watershed Plan-dissolved oxygen

Segment 1113

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders

in the decision-making process.

(1997)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(1997)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(1999)-no

aquatic life

impairment

found

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable for

implementation, and a list of expected

results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

X X X X XX
TCEQ/TSSWCB joint publication SFR-68/04 203

Assessing Aquatic Life Use in Tidal Streams -dissolved oxygen

Segments 0511, 1501, 2453A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(2004)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

X

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

UAA

 to be

developed

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

X XX X X
204 TCEQ/TSSWCB joint publication SFR-68/04

Aquilla Reservoir -Atrazine

Segment 1254

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(1998)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data, and

all known stressors influencing water

quality.

(1998)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2000)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

omitted

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

TMDL -

(2002)

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

WQS met -

routine

monitoring

continues

XX X X X X
TCEQ/TSSWCB joint publication SFR-68/04 205

Arroyo Colorado -dissolved oxygen

Segment 2201

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(1998)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data, and

all known stressors influencing water

quality.

(1998)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2000) X X X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

Standards

unattainable

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

(2000) XXXXXX
206 TCEQ/TSSWCB joint publication SFR-68/04

Arroyo Colorado Legacy Pollutants -DDE, DDT, DDD, Dieldrin, Endrin, Lindane,

Hexachlorobenzene, Heptachlor, Heptachlor Epoxide, Chlordane, Toxaphene, PCBs

Segments 2201, 2202, 2202A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders

in the decision-making process.

(1998)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(1998)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(1999)

tissue

samples 

tissue

samples 

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

(1999)

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable for

implementation, and a list of expected

results.

TMDL -

(2001)

revised-2003

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

(1998) X X X X X X
TCEQ/TSSWCB joint publication SFR-68/04 207

Brandy Branch Reservoir -selenium

Segment 0505E

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(2001)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing water

quality.

(2001)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

advisory

rescinded

(2004)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

proposed

delisting

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

X XXXXX
208 TCEQ/TSSWCB joint publication SFR-68/04

Buck Creek -bacteria

Segments 0207A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

(2003)

 

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality

(2003)

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

X X X X XX
TCEQ/TSSWCB joint publication SFR-68/04 209

Buffalo and Whiteoak Bayous -bacteria

Segments 1013, 1014, 1017

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders

in the decision-making process.

(2000)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing water

quality.

(2001)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

X

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable for

implementation, and a list of expected

results.

TMDL IP

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

XXXX
210 TCEQ/TSSWCB joint publication SFR-68/04

Cedar Lake- bacteria

Segments 2442

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

 

X

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

 X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 211

City of Denton Watershed Plan (Hickory Creek) -bacteria

Segment 0823

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local

Watershed Committee to solicit input

and encourage the participation of

affected stakeholders in the decisionmaking process.

X

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory

of point / nonpoint sources, land use

data, and all known stressors

influencing water quality.

projected

completion

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution

of pollutants.

projected

completion

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

Develop A detailed action plan

(TMDL, IP, or WPP) which

establishes overall goals and

objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust 

the BMP implementation based on

follow-up verification monitoring of

effectiveness.

X X X XX X
212 TCEQ/TSSWCB joint publication SFR-68/04

Clear Creek Legacy and VOC Pollutants -chlordane, trichloroethane, dichloroethane

Segments 1101, 1102

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders

in the decision-making process.

(1998)

Technical

Advisory

Committee

for VOCs

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(2000)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2001)

tissue

samples

2000-2005

con’td.

sampling X X X X

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

omitted

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable for

implementation, and a list of expected

results.

TMDL -

2001

IP- 2003

poss.

revision if

samples

show no

decline

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

(2001) X X XXXX
TCEQ/TSSWCB joint publication SFR-68/04 213

Clear Creek Watershed - total dissolved solids, bacteria

Segment 1101, 1101B, 1102, 1102A, 1102B, 2425

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

2003

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or

WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

X X X X X
214 TCEQ/TSSWCB joint publication SFR-68/04

Clear Fork of the Trinity River -dissolved oxygen

Segments 0831, 0833

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

(2000)

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

(2000)

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

(2001)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

omitted

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy for

load allocation, timetable for

implementation, and a list of expected

results.

UAA being

developed

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.
TCEQ/TSSWCB joint publication SFR-68/04 215

Coastal Bend Bays Plan

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

(1998)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(1998)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

Ongoing

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

(1998)

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on followup verification monitoring of

effectiveness.

(1998) XXXXXX
216 TCEQ/TSSWCB joint publication SFR-68/04

Colorado and San Gabriel Rivers, Brushy and Petronilla Creeks -chloride, sulfate, total

dissolved solids (TDS)

Segments1214, 1244, 1426, 2204

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

(2002)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(2003)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2004)

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

X

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on followup verification monitoring of

effectiveness.

(2002) XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 217

Concho River Basin- impaired macrobenthos community, chloride, total dissolved solids

Segments 1421, 1422, 1423, 1424, 1425

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

X

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory

of point / nonpoint sources, land use

data, and all known stressors

influencing water quality.

projected

completion

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

projected

completion

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on followup verification monitoring of

effectiveness.

X X X XXX
218 TCEQ/TSSWCB joint publication SFR-68/04

Copano Bay Oysters - bacteria

Segments 2472

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

 

X

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

 X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 219

Dallas Legacy Pollutants - chlordane, DDT, DDD, DDE, Dieldrin, Heptachlor Epoxide, PCBs

Segments 805, 841, 841A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

(2000)

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

(2000)

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

(2000)

tissue

samples

2000-2005

con’t.

sampling X X X X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

omitted

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

TMDL -

(2001)

poss.

revision if

samples

show no

decline

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

(2001) X X XXXX
220 TCEQ/TSSWCB joint publication SFR-68/04

Dickinson Bayou -dissolved oxygen

Segment 1103

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

(2000)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory

of point / nonpoint sources, land use

data, and all known stressors

influencing water quality.

(2001)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2004)

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

(2004)

new

model

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on followup verification monitoring of

effectiveness.

XXXXX
TCEQ/TSSWCB joint publication SFR-68/04 221

E.V. Spence -sulfate, total dissolved solids

Segment 1411

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

(1999)

Complete the assessment of pollutant problems

by reviewing existing water quality data,

conducting an inventory of point / nonpoint

sources, land use data, and all known stressors

influencing water quality.

(1998)

Complete water quality monitoring. Analyze

data, assess loadings, and determine the origin

and distribution of pollutants.

(2000)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

omitted

Develop A detailed action plan (TMDL, IP, or

WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and a

list of expected results.

TMDL -

(2003)

Implement voluntary and regulatory actions in

the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

(2001) XXXXXX
222 TCEQ/TSSWCB joint publication SFR-68/04

Ft. Worth Legacy Pollutants -chlordane, DDE, Dieldrin, PCBs

Segments 806, 806A, 806B, 829, 829A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

omitted

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data, and

all known stressors influencing water

quality.

(2000)

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

(2000)

tissue

samples

2000-2005

con’td

sampling X X X X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

omitted

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

(2001)

poss.

revision if

samples

show no

decline

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

(2001) X X X X X X
TCEQ/TSSWCB joint publication SFR-68/04 223

Galveston Bay Plan- bacteria

Segment 

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

(1994)

 

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

(1994)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

Ongoing

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

(1994)

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

(1994) XX X X X X
224 TCEQ/TSSWCB joint publication SFR-68/04

Gilleland Creek - bacteria

Segment 1428C

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

 

X

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

 X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 225

Guadalupe above Canyon - bacteria

Segment 1806

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

 

X

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

 X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
226 TCEQ/TSSWCB joint publication SFR-68/04

Gulf Coast Oyster Waters -bacteria

Segments 2421, 2422, 2423, 2424, 2432, 2439, 2441, 2442, 2451, 2452, 2453, 2456, 2462, 2472

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(2001)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data, and

all known stressors influencing water

quality.

(2002)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2002)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

(2003) BST to be

completed

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

X X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

X X XXXX
TCEQ/TSSWCB joint publication SFR-68/04 227

Houston Ship Channel -dioxin

Segments 0901,1001, 1005, 1006, 1007, 2421, 2426, 2427, 2428, 2429, 2430, 2436, 2438

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders

in the decision-making process.

(2000)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(2001)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

X X

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable for

implementation, and a list of expected

results.

TMDL IP

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

XX XX X X
228 TCEQ/TSSWCB joint publication SFR-68/04

Houston Ship Channel -nickel

Segments 1001, 1005, 1006, 1007, 1013, 1014, 1016, 1017, 2426, 2427, 2428, 2429, 2430, 2436

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

(1999)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(1990)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(1998)

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

(1998)

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

(2001)

TMDL

(2003)

 IP

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on followup verification monitoring of

effectiveness.

XX XX X X
TCEQ/TSSWCB joint publication SFR-68/04 229

Lake Austin-dissolved oxygen

Segment 1403

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

(1999)

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

(1999)

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

(2000)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

omitted

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

EPA

recommendation to

delist (2001)

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

(2001) XXXXXX
230 TCEQ/TSSWCB joint publication SFR-68/04

Lake Granbury- bacteria

Segments 1205

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

X

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

projected

completion

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

projected

completion

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

X X X X XX
TCEQ/TSSWCB joint publication SFR-68/04 231

Lake Granger Watershed Plan-sediment

Segments 1247

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders

in the decision-making process.

X

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

projected

completion

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

projected

completion

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable for

implementation, and a list of expected

results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

X X X X XX
232 TCEQ/TSSWCB joint publication SFR-68/04

Lake O’the Pines -dissolved oxygen

Segment 0403

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(1998)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data, and

all known stressors influencing water

quality.

(1999)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2002)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

(2003)

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

(1999) X X X X X X
TCEQ/TSSWCB joint publication SFR-68/04 233

Lavaca and Chocolate Bays -mercury and dissolved oxygen

Segment 2453

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

(2001)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(2002)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2003)-

indicated

TMDL not 

necessary

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

omitted

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

proposed

delisting

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

(2001) X X XXXX
234 TCEQ/TSSWCB joint publication SFR-68/04

Little Wichita- dissolved oxygen, total dissolved solids

Segments 0211, 0212

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

X

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory

of point / nonpoint sources, land use

data, and all known stressors

influencing water quality.

projected

completion

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

projected

completion

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on followup verification monitoring of

effectiveness.

X X X XX X
TCEQ/TSSWCB joint publication SFR-68/04 235

Martin Creek Reservoir -selenium

Segment 0505F

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

(2001)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(2001)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

advisory

rescinded

(2004)

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

proposed

delisting

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

XXX X X X
236 TCEQ/TSSWCB joint publication SFR-68/04

Matagorda Bay / Tres Palacios Bay - dissolved oxygen 

Segments 2451, 2452, 2456, 2483A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

 

X

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

 X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 237

Middle Brazos River Basin -dissolved oxygen

Segments 1217A, 1243

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

omitted

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing

water quality.

(2001)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2004)

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

X

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

X X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

(1999) X X X XX X
238 TCEQ/TSSWCB joint publication SFR-68/04

North Bosque River -nutrients

Segments 1226, 1255

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(1995)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing water

quality.

(1996)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2000)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

(2000) X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

(2001)

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

(2002) XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 239

Nueces Bay Zinc Project -selenium, zinc

Segment 2482

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(2001)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing water

quality.

(2002)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2003)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

(2004)

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

TMDL IP

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

(2002) X XXXXX
240 TCEQ/TSSWCB joint publication SFR-68/04

Orange County -bacteria, dissolved oxygen, pH

Segment 0511, 0511A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

(2002)

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

(2002)

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

(2004)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy for

load allocation, timetable for

implementation, and a list of expected

results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

(2003) XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 241

Oso Bay -dissolved oxygen

Segments 2485, 2491

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

(2000)

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

(2000)

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

X X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy for

load allocation, timetable for

implementation, and a list of expected

results.

X X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

(1999) X X XXXX
242 TCEQ/TSSWCB joint publication SFR-68/04

Oso Creek, Oso Bay - Bacteria 

Segment 2485, 2485A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

 

X

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

 X

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

 X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

 X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 243

Pecos Watershed Plan- chloride, sulfate, and total dissolved solids

Segments 2310, 2311

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

X

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory

of point / nonpoint sources, land use

data, and all known stressors

influencing water quality.

projected

completion

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

projected

completion

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on followup verification monitoring of

effectiveness.

X X X XXX
244 TCEQ/TSSWCB joint publication SFR-68/04

Sabinal River - nitrate-nitrite

Segment 2110

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

 

X

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

 

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

 X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

 X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 245

Salado Creek -dissolved oxygen

Segment 1910

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(1998)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data, and

all known stressors influencing water

quality.

(1998)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2000)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation

(2001)

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

TMDL -

(2002)

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

IP was

determined

unnecessary

XXXXXX
246 TCEQ/TSSWCB joint publication SFR-68/04

San Antonio River Authority- bacteria

Segment 1911

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

X

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory

of point / nonpoint sources, land use

data, and all known stressors

influencing water quality.

projected

completion

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

projected

completion

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

Develop A detailed action plan (TMDL,

IP, or WPP) which establishes overall

goals and objectives, load allocations,

strategy for load allocation, timetable

for implementation, and a list of

expected results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on followup verification monitoring of

effectiveness.

X X X X XX
TCEQ/TSSWCB joint publication SFR-68/04 247

San Antonio River Basin, Leon River, and Peach Creek -bacteria

Segments 1221, 1803C, 1901, 1910, 1910A, 1911

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(2003)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data,

and all known stressors influencing water

quality.

(2001)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2004)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

X X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
248 TCEQ/TSSWCB joint publication SFR-68/04

South Central Texas -bacteria, dissolved oxygen

Segment 1427, 1806A, 1803A, 1803B, 2107, 2104, 2113, 1906, 1913, 1908

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(2002)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data, and

all known stressors influencing water

quality.

(2001)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

(2004)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 249

Tarrant Regional Water District Watershed Plans

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and

encourage the participation of affected

stakeholders in the decision-making

process.

X

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory

of point / nonpoint sources, land use

data, and all known stressors

influencing water quality.

X

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution

of pollutants.

X X X X XX

Develop and apply model(s) to

determine numerical load allocations.

Recommend control strategies for

implementation.

X

Develop A detailed action plan

(TMDL, IP, or WPP) which

establishes overall goals and

objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

projected

completion

Implement voluntary and regulatory

actions in the watershed and adjust 

the BMP implementation based on

follow-up verification monitoring of

effectiveness.

X X X X XX
250 TCEQ/TSSWCB joint publication SFR-68/04

Trinity River -bacteria

Segments 0805

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

 

X

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

 

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

 X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals and

objectives, load allocations, strategy for load

allocation, timetable for implementation, and

a list of expected results.

X

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXXX
TCEQ/TSSWCB joint publication SFR-68/04 251

Upper Oyster Creek -dissolved oxygen, bacteria

Segment 1245

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage

the participation of affected stakeholders in

the decision-making process.

(2001)

Complete the assessment of pollutant

problems by reviewing existing water

quality data, conducting an inventory of

point / nonpoint sources, land use data, and

all known stressors influencing water

quality.

(2002)

Complete water quality monitoring.

Analyze data, assess loadings, and

determine the origin and distribution of

pollutants.

X X

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

X X

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy

for load allocation, timetable for

implementation, and a list of expected

results.

X X

Implement voluntary and regulatory

actions in the watershed and adjust the

BMP implementation based on follow-up

verification monitoring of effectiveness.

XXXX
252 TCEQ/TSSWCB joint publication SFR-68/04

Welsh Reservoir - selenium 

Segment 404D

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed

Committee to solicit input and encourage the

participation of affected stakeholders in the

decision-making process.

Complete the assessment of pollutant

problems by reviewing existing water quality

data, conducting an inventory of point /

nonpoint sources, land use data, and all

known stressors influencing water quality.

Complete water quality monitoring. Analyze

data, assess loadings, and determine the

origin and distribution of pollutants.

advisory

rescinded

(2004)

Develop and apply model(s) to determine

numerical load allocations. Recommend

control strategies for implementation.

proposed

delisting

Develop A detailed action plan (TMDL, IP,

or WPP) which establishes overall goals

and objectives, load allocations, strategy for

load allocation, timetable for

implementation, and a list of expected

results.

Implement voluntary and regulatory actions

in the watershed and adjust the BMP

implementation based on follow-up

verification monitoring of effectiveness.

XXXXX
TCEQ/TSSWCB joint publication SFR-68/04 253

APPENDIX D AQUIFER VULNERABILITY RANKING

SYSTEM

DRASTIC: A Standardized System for Evaluating Groundwater Pollution Potential

Using Hydrogeologic Settings (EPA/600/2-87/035 June 1987).

DRASTIC is an acronym composed of letters for each of the measurable parameters for

which data are generally available from a variety of reference sources, including the

Texas Water Development Board, Natural Resource Conservation Service, Bureau of

Economic Geology, USGS and others. These parameters are called DRASTIC factors,

and include:

D - Depth to water

R - net Recharge

A - Aquifer media

S - Soil media

T - Topography

I - Impact of the vadose zone media

C - hydraulic Conductivity of the aquifer

In the DRASTIC methodology, each of these factors has a "range" and associated

"rating" - for example, Depth to water has the following ranges and ratings:

As is evident, the "rating" has a higher numeric value for a 

shallower depth to water. 

Net Recharge has a "range" based on inches of infiltration.

Aquifer media has a "range" based on rock type, as is Impact of vadose zone material.

Soil media is similarly based on soil type.

Topography's range is based on percent slope.

The range for hydraulic Conductivity is based on gallons per day per square foot.

Range Rating

0-5 feet 10

5-15 feet 9

15-30 feet 7

30-50 feet 5

50-75 feet 3

75-100 feet 2

100+ feet 1
254 TCEQ/TSSWCB joint publication SFR-68/04

The "ratings" are then multiplied by an assigned "weight" for each of the factors - for

Depth to water, the assigned "weight" is 5. For Topography, the assigned "weight" is 1.

These "weights" are for a pollution potential from general, industrial, and municipal

sources. The factors receive a different set of assigned "weights" for pollution potential

from agricultural sources. Factor "weights" may also be based on the best professional

judgement of a geo-scientist doing the analysis. 

Factor "ratings", multiplied by their assigned "weights", are then added together to

yield a DRASTIC index, a numerical indicator of an aquifer's relative susceptibility to

impacts from surface activities in a given location. More information may be obtained

from the publication referenced at the top of this section.

Table D.1 Aquifer Vulnerability Ranking

Major Aquifers Average Drastic Index Vulnerability Rank *

Seymour 144 High

Edwards (Balcones Fault Zone - 

San Antonio)

135 High

Edwards (Balcones Fault Zone - Austin) 126 High

Carrizo-Wilcox 117 Medium

Edwards-Trinity (Plateau) 107 Medium

Ogallala (South) 99 Medium

Gulf Coast 95 Medium

Trinity 95 Medium

Cenzoic Pecos Alluvium 95 Medium

Ogallala (North) 87 Low

Hueco-Mesilla Bolson 84 Low

Minor Aquifers Average Drastic Index Vulnerability Rank *

Brazos River Alluvium 144 High

Ellenberger-San Saba 126 High

Marble Falls 126 High

Hickory 114 Medium

Nacatoch 111 Medium

Blossom 109 Medium

Queen City 108 Medium

Lipan 108 Medium

Rustler 106 Medium

Blaine 102 Medium
Minor Aquifers Average Drastic Index Vulnerability Rank *

TCEQ/TSSWCB joint publication SFR-68/04 255

Bone Springs-Victorio Peak 100 Medium

Capitan Reef Complex 98 Medium

Sparta 98 Medium

Marathon 96 Medium

West Texas Bolsons 90 Low

Edwards-Trinity (High Plains) 83 Low

Rita Blanca 83 Low

Woodbine 82 Low

Igneous 79 Low

Dockum 78 Low

Yegua-Jackson Not Available Not Available
256 TCEQ/TSSWCB joint publication SFR-68/04

APPENDIX E THE HISTORY OF NONPOINT SOURCE

MANAGEMENT

The need to protect the environment from nonpoint source pollution has resulted in the

creation of a number of pollution control laws, regulations, and programs over the past

30 years. The implementation of these programs takes place at all levels - federal, state,

and local. This Appendix presents a historical overview of some of the major legislation

and programs that have been implemented to address nonpoint source pollution. 

Clean Water Act of 1972

The Clean Water Act (CWA) of 1972 forms the basis for water quality protection for

surface water as well as groundwater. It was enacted as a series of amendments to the

Federal Water Pollution Control Act of 1948. The 1972 Act was prompted by the

worsening state of America's rivers and several high-profile oil spills. The stated

objective of the Clean Water Act is "to restore and maintain the chemical, physical, and

biological integrity of the Nation's waters." The Act instituted a national program for

cleaning up the nation's waters and required state programs be put in place to achieve

the water quality goals. The statute employed a variety of regulatory and nonregulatory

tools to reduce pollutant discharges into waterways, finance municipal wastewater

treatment, and manage polluted runoff. 

Congress did not directly regulate nonpoint source pollution in the original 1972 Act.

Instead, early efforts at nonpoint source management were relegated to state and local

governments through general area-wide waste management planning conducted under

§208 of the CWA. Under the 208 program, state governors designated local

management authorities for areas with waste treatment problems. These local

authorities, in turn, engaged in comprehensive area-wide waste treatment planning.

The Plans were primarily devoted to treatment works, but were also to take account of

various nonpoint sources of pollution, including agricultural, silvicultural,

mine-related, and construction related sources. §208 provided cost share funds to

those areas of States which had approved waste management plans.

In the late 1970's, initial Water Quality Management Plans for Texas were prepared by

the Texas Department of Water Resources (now the TCEQ) under the provisions of

§208. These plans contained an assessment of NPS pollution conditions in each of the

classified waters in Texas. Based primarily on these assessments, some fifteen

individual NPS-related studies were conducted over a period of three years. 

During the development of these initial Plans, two executive orders were issued to

delineate the responsibilities of the two principle agencies involved with nonpoint

source controls in the State of Texas. In 1979, the Texas Department of Water

Resources was designated the State agency responsible for coordinating §208 planning,

while the Texas State Soil and Water Conservation Board (TSSWCB) was designated as

the planning agency responsible for identifying management strategies for agricultural

and silvicultural nonpoint sources of pollution.
TCEQ/TSSWCB joint publication SFR-68/04 257

National Urban Runoff Program

For many years following the passage of the CWA, EPA and the states focused

pollution control efforts mainly on regulating discharges from traditional "point

source" facilities, such as municipal sewage plants and industrial facilities. These

dischargers were considered the primary contributors to poor water quality conditions.

However, as better point source control measures were developed, it became evident

that more diffuse sources of water pollution were also contributing to water quality

problems. 

The National Urban Runoff Program (NURP) was developed by EPA in 1978 as a

five-year program to obtain data on control of urban runoff quality and its impact on

receiving waters. Between 1978 and 1983, NURP conducted studies that evaluated

outfalls in 28 communities across the United States. These studies confirmed that

contaminants contained in urban and suburban runoff, such as sediments, phosphorus,

nitrates, coliform bacteria, as well as lead, and other heavy metals, impaired water

quality in streams, lakes, wetlands, and estuaries. The data also showed that runoff

from urban and industrial areas contained significant quantities of the same types of

regulated pollutants that are found in wastewater and industrial discharges.

National Pollutant Discharge Elimination System

To address the problem of stormwater runoff, Congress amended the Clean Water Act

in 1987 to include urban stormwater discharges as a "point source," requiring the EPA

to develop permit requirements for urban stormwater discharges even though the actual

source of the pollution is from nonpoint sources. The National Pollutant Discharge

Elimination System (NPDES) law was promulgated as a two-phase program. Phase

One, implemented in 1990, addressed construction, industrial, and municipal

discharges in cities with populations over 100,000. Phase Two for all municipalities

under 100,000 became effective in 2003. The TCEQ assumed delegation of the Federal

NPDES program (now known as TPDES) in September 1998.

Rural Clean Water Program

In 1980, Congress established an experimental program to address agricultural

nonpoint source pollution. The experiment was called the Rural Clean Water Program

(RCWP). The RCWP combined land treatment and water quality monitoring to

document the effectiveness of NPS pollution control measures. 

Twenty-one experimental RCWP projects were selected throughout the country,

representing a wide range of pollution problems and impaired water uses. Each of the

projects involved the implementation of best management practices (BMPs) to reduce

NPS pollution and water quality monitoring to evaluate the effects of the land

treatment. BMP installation was targeted to land areas or sources of NPS pollutants

identified as having significant impacts on the impaired or threatened water resource.

Cost-share funds and technical assistance were offered to producers as incentives for
258 TCEQ/TSSWCB joint publication SFR-68/04

using or installing BMPs. The RCWP was administered by the U.S. Department of

Agriculture in consultation with the U.S. Environmental Protection Agency. 

The RCWP projects made significant contributions to the body of knowledge about NPS

pollution, NPS pollution control technology, agricultural NPS pollution monitoring

design and data interpretation, and the effectiveness of voluntary cost-share programs

designed to assist producers in reducing agricultural NPS pollution. The RCWP

program was phased out by 1990.

The 1987 Clean Water Act Amendment: Nonpoint Source Management

In 1987 Congress amended the 1972 Clean Water Act by adding §319. This amendment

was the first concerted effort by the federal government to address pollution from

nonpoint sources. §319 established a national policy requiring states to develop and

implement programs for the control of nonpoint source pollution. The new §319 created

a two step process for nonpoint source management. States first had to submit to EPA a

report that identifies waters within the state that, without additional action to control

nonpoint sources of water pollution, cannot reasonably be expected to attain or

maintain applicable water quality standards or the goals and requirements of the Clean

Water Act. States then had to submit a nonpoint source management program to the

EPA for approval. In addition, §319 provided for continuing federal monitoring of state

nonpoint source progress through annual reports to EPA, and EPA's annual reports to

Congress. 

Initially, the Texas Water Commission (predecessor to TCEQ) was given the authority

to administer the §319 Nonpoint Source program for the State of Texas, and used its

authority to provide federal funds to a small number of planning agencies and river

authorities across the state. In response to the 1987 Amendment, the Commission

completed its initial NPS Pollution Assessment Report and Management program in

1989, and prepared the first program update in 1991.

As part of the public participation process, the Texas Water Commission convened a 27

member panel representing industry, agriculture, environmental groups, and

government from diverse areas of the state to recommend a program to reduce nonpoint

source pollution in Texas. The group's initial meeting was held on March 30, 1989. The

committee established three specialized subcommittees–Education, Monitoring &

Database, and Best Management Practices –reflecting the major emphases and worked

16 months to produce a set of fourteen recommendations. The recommendations ranged

from development of a BMP technical manual to enforcement activities and public

education. The Funding Subcommittee recommended funding requirements of $3.6

million to implement the program and recommended the Commission seek to implement

the entire recommendation package. Specific methods for funding were not identified in

order to allow the Commissioners flexibility in identifying funding sources. All fourteen

recommendations were adopted by the TWC.

In 1993, the Texas Legislature authorized the Texas State Soil and Water Conservation

Board to implement voluntary programs to assist agricultural and silivicultural
TCEQ/TSSWCB joint publication SFR-68/04 259

producers to meet the state's water quality goals and standards. As a result of

TSSWCB's new authority, the EPA began to award half of the annual Texas §319(h)

grant allotment directly to the TSSWCB, with the other half awarded to the Texas

Natural Resource Conservation Commission (renamed the Texas Commission on

Environmental Quality in 2002.) The TSSWCB and TCEQ coordinate the §319

program for the State of Texas according to the terms of a Memorandum of Agreement

executed in 1993 between the two agencies.

In 1996, the State of Texas initiated preparation of the second update to the State's

Nonpoint Source Management Program which was approved by EPA in February

2000. The document was a collaborative effort between the TCEQ and the TSSWCB

and was designed to complement the TMDL process underway in Texas. 

Recent grant guidelines under §319 reflect the growing recognition that strategies built

on specific watershed conditions are more effective at controlling nonpoint source than

approaches based on jurisdictional roles of municipalities, counties, and states. Under

the watershed approach, equal emphasis is placed on protecting healthy waters and

restoring impaired ones. Involvement of stakeholder groups in the development and

implementation of strategies for achieving and maintaining water quality goals will

become an integral part of future nonpoint source management under the §319

PROGRAM.

CLEAN WATER ACTION PLAN

A major enhancement to the §319 grant program came about in 1998 through the

EPA's and USDA's Clean Water Action Plan (CWAP). In his 1998 State of the Union

Address, President Bill Clinton announced a new Clean Water Initiative to speed the

restoration of the nation's waterways. This new initiative aimed to achieve clean water

by strengthening public health protections, targeting community-based watershed

protection efforts at high priority areas, and providing communities with new resources

to control polluted runoff. 

The CWAP emphasized four tools in achieving water quality: (1) a watershed approach

to water pollution; (2) stronger federal and state water quality standards; (3) better

natural resource stewardship for cropland, pasture, rangeland, and forests; and (4)

better information for citizens and government officials. All of these tools affect

nonpoint source pollution control and incorporate federal and state or local measures.

In conjunction with the plan, the CWAP initiative was budgeted additional funds by

Congress for water pollution control. §319 nonpoint source control programs received

$200 million of additional funding, known as incremental funding, and NOAA received

a new allocation to control polluted runoff and toxic contaminants. Since award of the

first incremental funds in 1999, Congress has budgeted both base and incremental

grant funding to EPA and the States for control of nonpoint source pollution.
260 TCEQ/TSSWCB joint publication SFR-68/04

Total Maximum Daily Load Program

The 1972 Clean Water Act did provide another mechanism for addressing nonpoint

source pollution through §303. This Section required states to set ambient water quality

standards for all water bodies within the state and identify the beneficial uses of each

water body. In 1985 and 1992, EPA issued rules for implementing §303(d) under which

States were required to identify those waters not meeting water quality standards;

prioritize those waters; and set Total Maximum Daily Loads, or TMDLs, of pollutants

for each such waterbody in order of priority. The TMDL process was designed to

address load allocations for nonpoint sources as well as point sources. In addition, the

rule required States TMDLs to restore those impaired waters but did not provide for

actual implementation of the TMDLs.

In the 1970's and 1980's, EPA and the States focused on bringing point sources of

pollution into compliance with NPDES requirements. Setting TMDLs for both point and

nonpoint source pollution was viewed as an expensive and complicated process. The

lack of widespread TMDL development was perceived by many groups around the

country as a source of contention. As a result, a string of court cases filed in the early

to mid-1990's, under the citizen suit provision of the CWA, forced EPA and the states to

stop avoiding TMDL implementation. 

Although the State of Texas was not involved in litigation, the TCEQ committed itself in

1998 to developing TMDLs for all impaired waterbodies within 10 years of their first

placement on the state's 303(d) list. The 76th (1999) and 77th (2001) Texas Legislatures

appropriated funds to the TCEQ and the TSSWCB to support the development of

TMDLs. Texas has already completed a number of TMDLs for nonpoint source affected

waterbodies and submitted them to the EPA. Currently, the TCEQ and TSSWCB

operate under the 1992 EPA TMDL guidelines. Control of nonpoint sources remains

voluntary through the implementation of best management practices. 

National Estuary Program

In response to pollution in coastal waters, Congress established the National Estuary

Program (NEP) under §320 of the Clean Water Act of 1987. The mission of the NEP is

to protect and restore the health of estuaries while supporting economic and

recreational activities. Under the Act, the administrator of the EPA was given

authorization to convene management conferences to develop Comprehensive

Conservation and Management Plans (CCMPs) for estuaries of national significance

that are threatened by pollution, development, or overuse. Two Texas estuaries were

named Estuaries of National Significance under §320 and were accepted into the

National Estuary Program: Galveston Bay in July 1988, and Corpus Christi Bay in

October 1992.

Both Texas estuaries have been impacted by nonpoint source pollution. The Coastal

Bend Bays & Estuaries Program (CBBEP), established in 1994, submitted a CCMP in

1998. Contaminated stormwater flowing into the bay has been identified as a primary

water quality concern. With funds from federal, state, and local governments, private
TCEQ/TSSWCB joint publication SFR-68/04 261

industry and foundation grants, the CBBEP has provided funding for nonpoint source

control projects in the coastal bend region. The Galveston Bay Estuary Program

(GBEP), established in 1989, drafted and adopted a CCMP in April 1995 to improve

water quality and enhance living resources in Galveston Bay. Water and sediments in

tributaries and near-shore areas of Galveston Bay have been degraded by

contaminated runoff from nonpoint sources, primarily from urbanized areas. During

the 1995 Texas legislative session, funds were approved for the GBEP to proceed with

Plan implementation.

In 1999, the Texas Legislature passed the Texas Estuaries Act (HB 2561), which

recognized the economic and environmental value of publicly held resources in Texas

estuaries. The Act identified the TCEQ as the lead management agency and directs

other state agencies to work together.

Other Federal Programs

The Clean Water Act, which recently celebrated its 30th anniversary, has been credited

with significant water quality improvements to surface water. Under the CWA,

municipal and industrial wastewater facilities have been built or upgraded and

industrial point source discharges have been regulated and controlled. Despite this

progress, many waterbodies remain impaired from nonpoint sources. Congress has not

significantly amended the Clean Water Act's nonpoint source provisions since 1987,

however, the CWA is not the only vehicle through which Congress has extended federal

control over nonpoint source pollution.

Coastal Zone Nonpoint Source Management

In 1972 Congress passed the Federal Coastal Zone Management Act (CZMA) in

response to reports on coastal pollution and erosion. With this Act, the federal

government established a program to encourage coastal states and territories to

develop land-use plans that would protect coastal resources, including wetlands, dunes,

and barrier islands. The CZMA provided funding to states to develop programs to

define and regulate permissible land and water uses within this zone.

The Coastal Zone Management Reauthorization Amendments of 1990 (CZARA) created

the Coastal Nonpoint Source Program under §6217. As a prerequisite for receiving

continued CZMA funding, CZARA required the 29 coastal states, with federally

approved coastal zone management plans, to develop and submit coastal nonpoint

source pollution control programs for approval by the National Oceanic and

Atmospheric Administration (NOAA) and the Environmental Protection Agency (EPA).

States were required to issue management measures for certain categories of runoff and

erosion, and to evaluate nonpoint sources and identify coastal areas that would be

negatively affected by specified land uses. In 1991, EPA proposed guidance on

management measures for five major categories of nonpoint sources. In 1992, EPA

provided updated guidance for an agricultural management measure for erosion and

sediment control and confined animal facility management, and a management measure

for urban runoff in developing areas. The Coastal Nonpoint Source Program also
262 TCEQ/TSSWCB joint publication SFR-68/04

established shared responsibility for managing coastal waters between state Coastal

Zone Management programs and state agencies responsible for overseeing

implementation of §319 programs.

In 1991, the Texas Legislature directed the General Land Office to head up a Coastal

Coordination Council, which developed a Coastal Zone Management Plan in response

to the requirements of the CZARA. The Plan, which became effective in 1995, sets

policies, standards and regulations affecting private and public property in all counties

contiguous to the Texas coastline. Activities such as development permits,

fill-and-dredge operations, siting of oil and gas waste-disposal pits, agricultural

activities, and highway construction are addressed in the plan. The Texas Coastal

Management Program was approved by the National Oceanic and Atmospheric

Administration (NOAA) on January 10, 1997.

As a requirement for federal approval of its coastal management program, Texas was

required to develop and implement a program to specifically address coastal nonpoint

source pollution. The purpose of the Coastal NPS Program is to identify sources of

coastal NPS pollution and develop recommendations for its prevention.

The Coastal NPS Program for Texas has been under development since 1997. To

facilitate the development of the NPS Program, the Coastal Coordination Council

established a work group comprised of staff from the General Land Office, Texas

Commission on Environmental Quality, Texas Railroad Commission, Texas Department

of Transportation, Texas Parks and Wildlife Department, Texas State Soil and Water

Conservation Board, and a public member from the Council. This work group has

addressed comments submitted by the National Oceanic and Atmospheric

Administration (NOAA) and the Environmental Protection Agency (EPA) regarding

Texas' Coastal NPS Program, reviewed and recommended proposed NPS pollution

control projects, and researched possible options to enhance the program. 

In December 1998, Texas submitted its Coastal NPS Program to NOAA and EPA. After

two and a half years of discussion between Texas and the federal agencies, NOAA and

EPA published in the Federal Register, in late September 2001, their intent to approve

the Texas Coastal NPS Program with certain conditions. NOAA and EPA identified six

areas (encompassing 18 of the 52 required management measures) that Texas must

strengthen or correct prior to receiving full approval of the Coastal NPS Program.

These areas are:

# development and site development

# watershed protection and existing development

# construction site chemical control

# new and operating onsite disposal systems

# roads, highways, and bridges; and

# hydromodification

On December 24, 2002, NOAA and EPA emailed a memo concerning policy

clarification on the overlap of §6217 Coastal NPS Programs with Phase I and Phase II
TCEQ/TSSWCB joint publication SFR-68/04 263

Storm Water Regulations. This memo clarifies which activities are no longer subject to

the requirements of the Coastal Zone Act Reauthorization Amendments of 1990

(CZARA) Coastal NPS Control Program. 

The second notice to conditionally approve Texas' Coastal NPS Program was posted in

the Federal Register on April 7, 2003. The Final Conditional Approval Letter was

received on July 9, 2003. Texas was given five years to meet the remaining conditions.

The Coastal NPS Program coordinates with other programs, such as the Galveston Bay

Estuary Program and the Coastal Bend Bays and Estuaries Program, to ensure wide

participation and input into the Coastal NPS Program.

Safe Drinking Water Act: Source Water Protection

The Safe Drinking Water Act (SDWA), promulgated by Congress in 1974, established a

Federal program to monitor and increase the safety of the nation's drinking water

supply. The SDWA authorized the EPA to set and implement health-based standards to

protect against both naturally occurring and man-made contaminants in drinking

water. The 1986 Amendment to the SDWA included a provision for States to establish

wellhead protection (WHP) areas to protect groundwater from all sources of

contamination including nonpoint sources. Texas was the first state in the nation to

implement a wellhead protection project, having adopted a voluntary approach. The

1996 Amendment to the SDWA expanded the WHP program to strengthen protection

for all sources of drinking water including surface water. 

Intermodal Surface Transportation Efficiency Act 

Another major piece of legislation passed in 1991 was the Intermodal Surface

Transportation Efficiency Act (ISTEA) designed to expand and improve the quality and

condition of the nation's highway and transportation system. This Act contained

provision for the planning and developing of highway systems and a host of

transportation enhancement activities including the mitigation of water pollution due to

highway runoff. ISTEA established a block grant program in which States could use a

portion of their federal highway funding allotment for runoff pollution control devices

and other best management practices to reduce the amount of polluted runoff that

reaches lakes and rivers. ISTEA also required that Departments of Transportation

develop national erosion control guidelines for states to follow when carrying out

federal-aid construction projects. Federal Highway Administration guidelines for

erosion and sediment control in coastal areas must be consistent with both CZARA

Guidance and the state 319 program. 

The Food Security Act of 1985

Since 1985, farm bills have recognized the environmental problems caused by or

associated with agricultural nonpoint source pollution. Congress passed the federal

Food Security Act in 1985 to help prevent erosion of cropland and, incidentally, to

control sediment runoff from farms. Conservation compliance provisions of the act

required farmers who farm highly erodible land to have a conservation plan developed

by 1990 and installed by 1995 to be eligible to participate in federal farm programs.
264 TCEQ/TSSWCB joint publication SFR-68/04

The Act also established the Conservation Reserve Program (CRP) to provide financial

incentives to farmers who take highly erodible cropland and other environmentally

fragile land out of production.

Federal Agriculture Improvement and Reform Act of 1996

In 1996 Congress reauthorized the Farm Bill (the Federal Agriculture Improvement

and Reform Act) which refunded and restructured the Conservation Reserve Program

and made changes to the program including the addition of environmental criteria in

recognition that agriculture is a major cause of nonpoint source pollution. The

programs of the Farm Bill are administered by the USDA - Natural Resource

Conservation Service (NRCS).

The 1996 Bill also created the Environment Quality Incentives Program (EQIP) which

offered financial, educational, and technical assistance to encourage persons involved

in agricultural or livestock production to adopt conservation practices to protect water

quality. 

Farm Security and Rural Investment Act of 2002

The Farm Security and Rural Investment Act of 2002, authorized or reauthorized a

number of conservation programs, including the Resource Conservation and

Development Program. The legislation simplified existing programs and created new

ones to address high-priority environmental and production goals. The new Farm Bill

authorized an 80 percent increase in funding above levels previously available for

USDA programs designed to protect and conserve natural resources. The 2002 Farm

Bill also enhanced coordination between the EPA and the USDA by integrating

funding and resources to minimize potential duplication of effort. 

State of Texas Nonpoint Source Control Programs

In addition to the CWA §319 grant program and other federally funded programs, the

State of Texas has managed nonpoint source water pollution through a combination of

programs and regulations at the regional and local level. 

General Discharge Prohibition

The Texas Water Code provides that, except as authorized, no person may "discharge

sewage, municipal waste, recreational waste, agricultural waste, or industrial waste

into or adjacent to any water in the state," discharge other waste which in itself or in

conjunction with any other discharge or activity causes pollution of any water of the

state, or commit any other act which causes pollution of any water of the state.

Exempted from this prohibition are: discharges authorized by permit, discharges in

compliance with a certified water quality management plan as provided under the state

agriculture code, and activities under the jurisdiction of the Parks and Wildlife

Department, the General Land Office or the Railroad Commission of Texas. The TCEQ

enforces these provisions. 
TCEQ/TSSWCB joint publication SFR-68/04 265

Texas Local Government Code

Texas law also puts authority to regulate land uses at the regional, county, and

municipal level. Texas' local government code includes provisions allowing a

home-rule municipality to prohibit the pollution of streams, drains, and tributaries that

"may constitute the source of the water supply of any municipality." The law more

broadly states that a home-rule municipality may provide protection for and police any

watershed. A municipality may exercise other provisions inside or outside the

municipality's boundaries. 

Municipal Pollution Abatement Plans

The TCEQ's regulatory approach to urban nonpoint source management is found in the

Texas Water Code, §26.177, which defines the water pollution control duties of cities in

Texas. The statute was originally passed by the legislature in 1967 and was amended in

1971, 1977, 1987 and 1997. Under this section, cities having a population of 10,000 or

more inhabitants are required to establish a water pollution control and abatement

plan when the Clean Rivers Basin assessments or other TCEQ assessments identify

water pollution impacts arising within the respective city and not associated with

permitted point sources. These plans are to be submitted to the TCEQ for review and

approval to address pollution attributable to non-permitted sources, to implement

measures to control and abate water pollution within the city's jurisdiction. The statute

allows for TCEQ to establish criteria for water pollution control and abatement

programs and allows the agency to assess fees to cover the costs to administer the

program. The following requirements are specified for water pollution control and

abatement: 1) Inventory, monitor, and obtain compliance for waste discharges; and 2)

provide for "reasonable and realistic planning plans for controlling..." nonpoint source

pollution. Rules implementing §26.177 of the Texas Water Code were developed in

1998 and were adopted by the TCEQ in 1999.

Livestock and Poultry Production Operations

In 1987, the Texas Water Commission (now the TCEQ) adopted rules regulating animal

feeding operations (AFOs) that can contribute to nonpoint source pollution. AFOs over

a certain size, known as concentrated animal feeding operations (CAFOs), are required

to obtain a NPDES permit. State regulations prohibit these facilities from discharging

wastewater or animal waste directly into streams and rivers or allowing the waste to

run off the site, where it could contaminate surface water or groundwater. The permit

requires the operator to develop a pollution prevention plan that addresses water and

air pollution as well as the land application of wastes and wastewater. 

Recent rule changes for CAFOs have established stricter permit requirements in certain

watersheds where water quality problems have been attributed to livestock operations.

The TCEQ adopted rules on March 6, 2002, to implement the requirements of House

Bill 2912, of the 77th Texas Legislature regarding permitting requirements for CAFOs

located in major sole-source impairment zones and the protection of sole-source

drinking water supplies. The EPA adopted changes to the federal CAFO regulations
266 TCEQ/TSSWCB joint publication SFR-68/04

and effluent guidelines that became effective on April 13, 2003, changing the

requirements to operate CAFOs under the Clean Water Act. Specifically, the new

federal regulations changed which animal feeding operations were defined as CAFOs

and what management practices are required for those operations. The effluent

guidelines changed the design standards for new source swine, veal, and poultry

operations and added a requirement for nutrient management plans (NMPs). These new

changes meant that under the state's NPDES MOA with EPA, all state CAFO rules must

also meet federal requirements. On February 25, 2004, the TCEQ approved rules that

incorporate changes necessary to support the recommendations of the Implementation

Plan for the Total Maximum Daily Load evaluations for Segments 1226 and 1255 of the

Bosque River.

Edwards Aquifer Protection Program 

Development activities in various portions of the Edwards Aquifer have been regulated

since 1970 when the Texas Water Quality Board (a predecessor agency to the TCEQ)

issued an order designed to protect the quality of water entering the Edwards Aquifer

recharge zone. Sources of pollution such as underground storage tanks, above ground

storage tanks, and sewer lines were regulated. The first Texas counties affected were

Kinney, Uvalde, Medina, Bexar, Comal, and Hays. Upon petition by local government,

construction activities in portions of Williamson County became regulated in 1986. In

1990, construction activities in portions of Travis county were also regulated.

The TCEQ's Edwards Aquifer Protection Program rules regulate certain activities

having the potential to adversely affect the water quality of the Edwards Aquifer and

hydrologically-connected surface water in order to protect existing and potential

beneficial uses of groundwater. The rules require that developers obtain a letter of

approval before beginning construction activity and require that developers implement

both temporary and permanent best management practices during and after

construction.

In 1999, Edwards rules were extended to cover the contributing zone to the recharge

area. Other changes included a design performance standard for permanent best

management practices. The standard applies to water quality systems used for

stormwater treatment. Examples include sand filtration basins, extended detention

basins, and retention ponds with irrigation systems. The rules also require engineers to

certify the construction of the systems. There is also a mechanism in the rules to ensure

maintenance of these systems. Regulated activities are those that have the potential for

polluting surface streams that will cross the recharge zone. This includes large

construction projects and installation of petroleum storage tanks.

On-Site Sewage Facilities

Prior to the late 1960's, the regulation of on-site sewage facilities (OSSF) in Texas was

administered primarily by municipal governments through local building inspection

and plumbing inspection programs. There was no inspection of installation outside of

municipal jurisdiction. In the late 1960's, the Texas Legislature adopted legislation
TCEQ/TSSWCB joint publication SFR-68/04 267

which empowered other local governmental entities (e.g., counties, river authorities,

Municipal Utility Districts, etc.) to adopt OSSF control orders subject to approval by

the Texas Water Quality Board (now TCEQ). These approved orders gave local

governments authority to permit systems, conduct inspections, collect fees, and

investigate complaints.

Soil Conservation Laws and Programs

Early attempts at soil conservation legislation in Texas began during the "Dust Bowl"

days of the 1930's when the problems of wind and water erosion began to get public

attention. Legislation authorizing the establishment of Wind Erosion Conservation

Districts was enacted by the 44th legislature in 1935. This law provided for the creation

of districts to conserve the soil by prevention of unnecessary erosion caused by winds,

and reclamation of lands that were depreciated or denuded of soil by wind. The

TSSWCB, created in 1939, was charged with the responsibility of organizing soil

conservation districts throughout the state. In 1941, the 47th Legislature passed House

Bill 444 which is the basic conservation law under which the Texas State Soil and

Water Conservation Board and the Soil and Water Conservation Districts operate

today. 

The TSSWCB is charged with the responsibility of administering and coordinating the

state's soil and water conservation laws and programs with the State's 217 soil and

water conservation districts. Through various educational and financial programs, the

districts provide assistance to farmers and ranchers to encourage the wise and

productive use of the state's soil and water resources. After passage of the 1972 Clean

Water Act, the soil and water conservation district directors in Texas asked the

TSSWCB to seek an appropriate role for them in nonpoint source planning and

management. This request led to the passage of Senate Bill 229 passed during the 69th

Texas Legislature. This legislation added §201.026 to the Texas Agricultural Code to

give the TSSWCB responsibility to plan implement and manage programs and practices

for abating agricultural and silvicultural nonpoint source pollution.

Water Quality Management Plans

In 1993, the Texas Legislature took another major step toward controlling water

pollution from agricultural and silvicultural nonpoint sources when it passed Senate

Bill 503. SB 503 authorized the TSSWCB to assist agricultural and silvicultural

producers in meeting the state's water quality goals and standards through a voluntary,

incentive-based program. The Bill transferred much of the responsibility for regulating

non-permitted, smaller animal feeding operations from the TCEQ to the TSSWCB. The

move was designed to change the state's oversight of these operations from a

traditional regulatory role to a technical assistance role. 

SB503 provided for the development and certification of water quality management

plans (WQMPs). These plans are site specific plans for agricultural or silvicultural

lands which include appropriate land treatment practices, production practices,

management measures, technologies, or combinations thereof. A water quality
268 TCEQ/TSSWCB joint publication SFR-68/04

management plan is a site-specific document indicating when, where, and how to

implement conservation practices following standards in the USDA Natural Resource

Conservation Service Field Office Technical Guide. These plans are tailored to each

landowner's conservation needs and management goals while ensuring adherence to

state water quality laws.

SB 503 legislation also set up a complaint resolution process and provided for a cost

share assistance to help pay for some of the costs of installing water quality

management practices. The provisions of the legislation are administered by the

TSSWCB through and in cooperation with local soil and water conservation districts.

The passage of Senate Bill 1339 during the 77th Session of the Texas Legislature

expanded the water quality management program to include poultry facilities. 

Although authorized by SB 503, the TSSWCB has yet to develop a certified water

quality management program for silvicultural activities.
TCEQ/TSSWCB joint publication SFR-68/04 269

APPENDIX F CLEAN WATER ACT, §319

[§319 added by PL 100-4]

(a) State Assessment Reports. --

(1) Contents. -- The Governor of each State shall, after notice and opportunity

for public comment, prepare and submit to the Administrator for approval, a

report which:

(A) identifies those navigable waters within the State which, without

additional action to control nonpoint sources of pollution, cannot

reasonably be expected to attain or maintain applicable water quality

standards or the goals and requirements of this Act;

(B) identifies those categories and subcategories of nonpoint source or,

where appropriate, particular nonpoint sources which add significant

pollution to each portion of the navigable waters identified under

subparagraph (A) in amounts which contribute to such portion not meeting

such water quality standards or such goals and requirements;

(C) describes the process, including intergovernmental coordination and

public participation, for identifying best management practices and

measures to control each category and subcategory of nonpoint sources

and, where appropriate, particular nonpoint sources identified under

subparagraph (B) and to reduce, to the maximum extent practicable, the

level of pollution resulting from such category, subcategory, or source; and 

(D) identifies and describes State and local programs for controlling

pollution added from nonpoint sources to, and improving the quality of,

each such portion of the navigable waters, including but not limited to those

programs which are receiving Federal assistance under subsections (h) and

(I).

(2) Information Used in Preparation. -- In developing the report required by this

section, the State (A) may rely upon information developed pursuant to 208,

§303(e), §304(F),§305(B), AND §314, and other information as appropriate, and (B)

may utilize appropriate elements of the waste treatment management plans

developed pursuant to §208(b) AND §303, to the extent such elements are consistent

with and fulfill the requirements of this section.

(b) State Management Programs. --

(1) In General. -- The Governor of each State, for that State or in combination

with adjacent States, shall, after notice and opportunity for public comment,
270 TCEQ/TSSWCB joint publication SFR-68/04

prepare and submit to the Administrator for approval a management program

which such State proposes to implement in the first four fiscal years beginning

after the date of submission of such management program for controlling

pollution added from nonpoint sources to the navigable waters within the State

and improving the quality of such waters. 

(2) Specific Contents. -- Each management program proposed for

implementation under this subsection shall include each of the following:

(A) An identification of the best management practices and measures which

will be undertaken to reduce pollutant loadings resulting from each

category, subcategory, or particular nonpoint source designated under

paragraph (1)(B), taking into account the impact of the practice on ground

water quality.

(B) An identification of programs (including, as appropriate, nonregulatory

or regulatory programs for enforcement, technical assistance, financial

assistance, education, training, technology transfer, and demonstration

projects) to achieve implementation of the best management practices by the

categories, subcategories, and particular nonpoint source designated under

subparagraph (A).

(C) A schedule containing annual milestones for (I) utilization of the

program implementation methods identified in subparagraph (B), and (ii)

implementation of the best management practices identified in

subparagraph (A) by the categories, subcategories, or particular nonpoint

sources designated under paragraph (1)(B). Such schedule shall provide for

utilization of the best management practices at the earliest practicable date. 

(D) A certification of the attorney general of the State or States (or the chief

attorney of any State water pollution control agency which has independent

legal counsel) that the laws of the State or States, as the case may be,

provide adequate authority to implement such management program or, if

there is not such adequate authority, a list of such additional authorities as

will be necessary to implement such management program. A schedule and

commitment by the State or States to seek such additional authorities as

expeditiously as practicable. 

(E) Sources of Federal and other assistance and funding (other than

assistance provided under subsections (h) and (I)) which will be available in

each of such fiscal years for supporting implementation of such practices

and measures and the purposes for which such assistance will be used in

each of such fiscal years. 

(F) An identification of Federal financial assistance programs and Federal

development projects for which the State will review individual assistance

applications or development projects for their effect on water quality
TCEQ/TSSWCB joint publication SFR-68/04 271

pursuant to the procedures set forth in Executive Order 12372 as in effect on

September 17, 1983, to determine whether such assistance applications or

development projects would be consistent with the program prepared under

this subsection; for the purposes of this subparagraph, identification shall

not be limited to the assistance programs or development projects subject to

Executive Order 12372 but may include any programs listed in the most

recent Catalog of Federal Domestic Assistance which may have an effect on

the purposes and objectives of the State's nonpoint source pollution

management program. 

(3) Utilization of Local and Private Experts. -- In development developing and

implementing a management program under this subsection, a State shall, to the

maximum extent practicable, involve local public and private agencies and

organizations which have expertise in control of nonpoint sources of pollution. 

(4) Development on Watershed Basis. -- A State shall, to the maximum extent

practicable, develop and implement a management program under this

subsection on a watershed-by-watershed basis within such State. 

(c) Administrative Provisions. --

(1) Cooperation Requirement. -- Any report required by subsection (a) and any

management program and report required by subsection (b) shall be developed

in cooperation with local, substate regional, and interstate entities which are

actively planning for the implementation of nonpoint source pollution controls

and have either been certified by the Administrator in accordance with §208,

have worked jointly with the State on water quality management planning under

§205(j), or have been designated by the State legislative body or Governor as

water quality management planning agencies for their geographic areas.

(2) Time Period for Submission of Reports and Management Programs. -- Each

report and management program shall be submitted to the Administrator during

the 18-month period beginning on the date of the enactment of this section.

(d) Approval or Disapproval of Reports and Management Programs. --

(1) Deadline. -- Subject to paragraph (2), not later than 180 days after the date

of submission to the Administrator of any report or management program under

this section (other than subsections (h), (I), and (k)), the Administrator shall

either approve or disapprove such report or management program, as the case

may be. The Administrator may approve a portion of a management program

under this subsection. If the Administrator does not disapprove a report,

management program, or portion of a management program in such 180-day

period, such report, management program, or portion shall be deemed approved

for purposes of this section. 
272 TCEQ/TSSWCB joint publication SFR-68/04

(2) Procedure for Disapproval. -- If, after notice and opportunity for public

comment and consultation with appropriate Federal and State agencies and

other interested persons, the Administrator determines that –

(A) the proposed management program or any portion thereof does not meet

the requirements of subsection (b)(2) of this section or is not likely to satisfy,

in whole or in part, the goals and requirements of the Act; 

(B) adequate authority does not exist, or adequate resources are not

available, to implement such program or portion; 

(C) the schedule for implementing such program or portion is not

sufficiently expeditious; or 

(D) the practices and measures proposed in such program or portion are not

adequate to reduce the level of pollution in navigable waters in the State

resulting from nonpoint sources and to improve the quality of navigable

waters in the State; the Administrator shall within 6 months of receipt of the

proposed program notify the State of any revisions or modifications

necessary to obtain approval. The State shall thereupon have an additional

3 months to submit its revised management program and the Administrator

shall approve or disapprove such revised program within three months of

receipt. 

(3) Failure of State to Submit Report. -- If a Governor of State does not submit

the report required by subsection (a) within the period specified by subsection

(c)(2), the Administrator shall, within 30 months after the date of the enactment

of this section, prepare a report for such State which makes the identifications

required by paragraphs (1)(A) and (1)(B) of subsection (a). Upon completion of

the requirement of the preceding sentence and after notice and opportunity for

comment, the Administrator shall report to Congress on his actions pursuant to

this section. 

(e) Local Management Programs; Technical Assistance. -- If a State fails to submit a

management program under subsection (b) or the Administrator does not approve such

a management program, a local public agency or organization which has expertise in,

and authority to, control water pollution, resulting from nonpoint sources in any area

of such State which the Administrator determines is of sufficient geographic size may,

with approval of such State, request the Administrator to provide, and the

Administrator shall provide, technical assistance to such agency or organization in

developing for such area a management program which is described in subsection (b)

and can be approved pursuant to subsection (d). After development of such

management program, such agency or organization shall submit such management

program to the Administrator for approval. If the Administrator approves such

management program, such agency or organization shall be eligible to receive

financial assistance under subsection (h) for implementation of such management

program as if such agency or organization were a State for which a report submitted
TCEQ/TSSWCB joint publication SFR-68/04 273

under subsection (a) and a management program submitted under subsection (b) were

approved under this section. Such financial assistance shall be subject to the same

terms and conditions as assistance provided to a State under subsection (h).

(f) Technical Assistance for States. -- Upon request of a State, the Administrator may

provide technical assistance to such State in developing a management program

approved under subsection (b) for those portions of the navigable waters requested by

such State. 

(g) Interstate Management Conference. --

(1) Convening of Conference; Notification; Purpose. -- If any portion of the

navigable waters in any State which is implementing a management program

approved under this section is not meeting applicable water quality standards or

the goals and requirements of the Act as a result, in whole or in part, of

pollution from nonpoint sources in another State, such State may petition the

Administrator to convene, and the Administrator shall convene, a management

conference of all States which contribute significant pollution resulting from

nonpoint sources to such portion. If, on the basis of information available, the

Administrator determines that a State is not meeting applicable water quality

standards or the goals and requirements of this Act as a result, in whole or in

part, of significant pollution from nonpoint sources in another State, the

administrator shall notify such State. The Administrator may convene a

management conference under this paragraph not later than 180 days after

giving such notification, whether or not the State which is not meeting such

standards requests such conference. The purpose of such conference shall be to

develop an agreement among such States to reduce the level of pollution in such

portion resulting from nonpoint sources and to improve the water quality of

such portion. Nothing in such agreement shall supersede or abrogate rights to

quantities of water which have been established by interstate water compacts,

Supreme Court decrees, or State water laws. This subsection shall not apply to

any pollution which is subject to the Colorado River Basin Salinity control Act.

The requirement that the Administrator convene a management conference shall

not be subject to the provisions of §505 of this Act. 

(2) State Management Program Requirement. -- To the extent that the States

reach agreement through such conference, the management programs of the

States which are parties to such agreements and which contribute significant

pollution to the navigable water or portions thereof not meeting applicable

water quality standards or goals and requirements of the Act will be revised to

reflect such agreement. Such a management program shall be consistent with

Federal and State law. 

(h) Grant Program. --

(1) Grants for Implementation of Management Programs. -- Upon application of

a State for which a report submitted under subsection (a) and a management
274 TCEQ/TSSWCB joint publication SFR-68/04

program submitted under subsection (b) is approved under this section, the

Administrator shall make grants, subject to such terms and conditions as the

Administrator considers appropriate, under this subsection to such State for the

purpose of assisting the State in implementing such management program.

Funds reserved pursuant to §205(j)(5) of this Act may be used to develop and implement

such management program. 

(2) Applications. -- An application for a grant under this subsection in any fiscal

year shall be in such form and shall contain such other information as the

Administrator may require, including an identification and description of the

best management practices and measures which the State proposes to assist,

encourage, or require in such year with the Federal assistance to be provided

under the grant. 

(3) Federal Share. -- The Federal share of the cost of each management

program implemented with Federal assistance under this subsection in any

fiscal year shall not exceed 60 percent of the cost incurred by the State in

implementing such management program and shall be made on condition that

the non-Federal share is provided from non-Federal sources. 

(4) Limitation on Grant Amounts. -- Notwithstanding any other provision of this

subsection, not more than 15 percent of the amount appropriated to carry out

this subsection may be used to make grants to any one State, including any

grants to any local public agency or organization with authority to control

pollution from nonpoint sources in any area of such State. 

(5) Priority for Effective Mechanisms. -- For each fiscal year beginning after September 30,

1987, the Administrator may give priority in making grants under this subsection, and shall give

consideration in determining the Federal share of any such grant, to States which have

implemented or are proposing to implement management programs which will -- 

(A) control particularly difficult or serious nonpoint source pollution

problems, including, but not limited to, problems resulting from mining

activities; 

(B) implement innovative methods or practices for controlling nonpoint

sources of pollution, including regulatory programs where the

Administrator deems appropriate;

(C) control interstate nonpoint source pollution problems; or

(D) carry out ground water quality protection activities which the

Administrator determines are part of a comprehensive nonpoint source

pollution control program, including research, planning, ground water

assessments, demonstration programs, enforcement, technical assistance,

education, and training to protect ground water quality from nonpoint

sources of pollution. 
TCEQ/TSSWCB joint publication SFR-68/04 275

(6) Availability for Obligation. -- The funds granted to each State pursuant to

this subsection in a fiscal year shall remain available for obligation by such

State for the fiscal year for which appropriated. The amount of any such funds

not obligated by the end of such fiscal year shall be available to the

Administrator for granting to other States under this subsection in the next fiscal

year. 

(7) Limitation on Use of Funds. -- States may use funds from grants made

pursuant to this section for financial assistance to persons only to the extent that

such assistance is related to the costs of demonstration projects. 

(8) Satisfactory Progress. -- No grant may be made under this subsection in any

fiscal year to a State which in the preceding fiscal year received a grant under

this subsection unless the Administrator determines that such State made

satisfactory progress in such preceding fiscal year in meeting the schedule

specified by such State under subsection (b)(2).

(9) Maintenance of Effort. -- No grant may be made to a State under this

subsection in any fiscal year unless such State enters into such agreements with

the Administrator as the Administrator may require to ensure that such State

will maintain its aggregate expenditures from all other sources for programs for

controlling pollution added to the navigable waters in such State from nonpoint

sources and improving the quality of such waters at or above the average level

of such expenditures in its two fiscal years preceding the date of enactment of

this subsection. 

(10) Request for Information. -- The Administrator may request such

information, data, and reports as he considers necessary to make the

determination of continuing eligibility for grants under this section. 

(11) Reporting and Other Requirements. -- Each State shall report to the

Administrator on an annual basis concerning (a) its progress in meeting the

schedule of milestones submitted pursuant to subsection (b)(2)(c) of this section,

and (B) to the extent that appropriate information is available, reductions in

nonpoint source pollutant loading and improvements in water quality for those

navigable waters or watersheds within the State which were identified pursuant

to subsection (a)(1)(a) of this section resulting from implementation of the

management program.

(12) Limitation on Administrative Costs. -- For purposes of this subsection,

administrative costs in the form of salaries, overhead, or indirect costs for

services provided and charged against activities and programs carried out with

a grant under this subsection shall not exceed in any fiscal year 10 percent of

the amount of the grant in such year, except that costs of implementing

enforcement and regulatory activities, education, training, technical assistance,

demonstration projects, and technology transfer programs shall not be subject

to this limitation. 
276 TCEQ/TSSWCB joint publication SFR-68/04

(I) Grants for Protecting Groundwater Quality. --

(1) Eligible Applicants and Activities. -- Upon application of a State for which a

report submitted under subsection (a) and a plan submitted under subsection (b)

is approved under this section, the Administrator shall make grants under this

subsection to such State for the purpose of assisting such State in carrying out

groundwater quality protection activities which the Administrator determines

will advance the State toward implementation of a comprehensive nonpoint

source pollution control program. Such activities shall include, but not be

limited to, research planning, groundwater assessments, demonstration

programs, enforcement, technical assistance, education and training to protect

the quality of groundwater and to prevent contamination of groundwater from

nonpoint sources of pollution. 

(2) Applications. -- An application for a grant under this subsection shall be in

such form and shall contain such information as the Administrator may require. 

(3) Federal Share; Maximum Amount. -- The Federal share of the cost of

assisting a State in carrying out groundwater protection activities in any fiscal

year under this subsection shall be 50 percent of the costs incurred by the State

in carrying out such activities, except that the maximum amount of Federal

assistance which any State may receive under this subsection in any fiscal year

shall not exceed $150,000.

(4) Report. -- The Administrator shall include in each report transmitted under

subsection (m) a report on the activities and programs implemented under this

subsection during the preceding fiscal year.

(j) Authorization of Appropriations. -- There is authorized to be appropriated to carry

out subsections (h) and (I) not to exceed $70,000,000 for fiscal year 1988,

$100,000,000 per fiscal year for each of fiscal years 1989 and 1990, and $130,000,000

for fiscal year 1991; except that for each of such fiscal years not to exceed $7,500,000

may be made available to carry out subsection (I). Sums appropriated pursuant to this

subsection shall remain available until expended. 

(k) Consistency of Other Programs and Projects With Management Programs. -- The

Administrator shall transmit to the Office of Management and Budget and the

appropriate Federal departments and agencies a list of those assistance programs and

development projects identified by each State under subsection (b)(2)(F) for which

individual assistance applications and projects will be reviewed pursuant to the

procedures set forth in Executive Order 12372 as in effect on September 17, 1983, the

concerns of the State regarding the consistency of such applications or projects with the

State nonpoint source pollution management program.

(l) Collection of Information. -- The Administrator shall collect and make available,

through publications and other appropriate means, information pertaining to

management practices and implementation methods, including, but not limited to, (1)
TCEQ/TSSWCB joint publication SFR-68/04 277

information concerning the costs and relative efficiencies of best management practices

for reducing nonpoint source pollution; and (2) available data concerning the

relationship between water quality and implementation of various management

practices to control nonpoint sources of pollution.

(m) Reports of Administrator. --

(1) Annual Reports. -- Not later than January 1, 1988, and each January 1

thereafter, the Administrator shall transmit to the Committee on Public Works

and Transportation of the House of Representatives and the Committee on

Environment and Public Works of the Senate, a report for the preceding fiscal

year on the activities and programs implemented under this section and the

progress made in reducing pollution in the navigable waters resulting from

nonpoint sources and improving the quality of such waters. 

(2) Final Report. -- Not later than January 1, 1990, the Administrator shall

transmit to Congress a final report on the activities carried out under this

section. Such report, at a minimum, shall – 

(A) describe the management programs being implemented by the States by

types and amount of affected navigable waters, categories and

subcategories of nonpoint sources, and types of best management practices

being implemented; 

(B) describe the experiences of the States in adhering to schedules and

implementing best management practices; 

(C) describe the amount and purpose of grants awarded pursuant to

subsections (h) and (I) of this section; 

(D) identify, to the extent that information is available, the progress made in

reducing pollutant loads and improving water quality in the navigable

waters; 

(E) indicate what further actions need to be taken to attain and maintain in

those navigable waters (I) applicable water quality standards; and (ii) the

goals and requirements of this Act;

(F) include recommendations of the Administrator concerning future

programs (including enforcement programs) for controlling pollution from

nonpoint sources; and 

(G) identify the activities and programs of departments, agencies, and

instrumentalities of the United States which are inconsistent with the

management programs submitted by the States and recommend

modifications so that such activities and programs are consistent with and

assist the States in implementation of such management programs. 
278 TCEQ/TSSWCB joint publication SFR-68/04

(n) Set Aside for Administrative Personnel. -- Not less than 5 percent of the funds

appropriated pursuant to subsection (j) for any fiscal year shall be available to the

Administrator to maintain personnel levels at the Environmental Protection Agency at

levels which are adequate to carry out this section in such year. 
TCEQ/TSSWCB joint publication SFR-68/04 279

APPENDIX G FEDERAL CONSISTENCY

§319(b)(2)(F) calls for each State Management Program to contain an identification of

federal financial assistance programs and federal development projects for which the

state will review individual assistance applications or development projects for their

effect on water quality, to determine whether such activities would be consistent with

the State Management Program. The Texas Review and Comment System (TRACS) will

be utilized to fulfill this requirement. Consistency review of urban, non-agricultural,

non-silvicultural programs is the responsibility of the TCEQ. Consistency of

agricultural and silvicultural programs is reviewed by the TSSWCB.

TCEQ Review of Federal Assistance Programs 

This list of Federal Assistance programs was developed from the 2004 Catalog of

Federal Domestic Assistance for potential use by the TCEQ in the development and

administration of its NPS Management Program. Some of these programs may be

reviewed by the TCEQ for consistency with its NPS Management Program. Any federal

programs which the State identifies as inconsistent with its management program will

be brought to the attention of the EPA. No inconsistent programs have been identified

at this time.

Department of Commerce

Economic Development Administration

11.300 Economic Development - Grants for Public Works and 

Economic Development Facilities

11.302 Economic Development - Support for Planning 

Organizations

11.303 Economic Development - Technical Assistance

11.307 Economic Adjustment Assistance 

National Oceanic and Atmospheric Administration

11.405 Anadromous Fish Conservation Act Program

11.407 Interjurisdictional Fisheries Act of 1986

11.415 Fisheries Finance Program

11.417 Sea Grant Support

11.419 Coastal Zone Management Administration Awards

11.420 Coastal Zone Management Estuarine Research Reserve

11.426 Financial Assistance for National Centers for Coastal Ocean Science

11.427 Fisheries Development and Utilization Research and Development Grants

and Cooperative Agreements Program

11.429 Marine Sanctuary Program

11.441 Regional Fishery Management Councils
280 TCEQ/TSSWCB joint publication SFR-68/04

Department of Defense

Department of the Army, Office of the Chief of Engineers

12.100 Aquatic Plant Control

12.101 Beach Erosion Control Projects

12.104 Flood Plain Management Services

12.105 Protection of Essential Highways, Highway Bridge Approaches and Public

Works

12.106 Flood Control Projects

12.107 Navigation Projects

12.108 Snagging and Clearing for Flood Control

12.109 Protection, Clearing and Straightening Channels

12.110 Planning Assistance to States

12.114 Collaborative Research and Development

Office of the Assistant Secretary (Economic Security)

12.612 Community Base Reuse Plans

12.613 Growth Management Planning Assistance

Department of Housing and Urban Development

Housing

14.112 Mortgage Insurance for Construction or Substantial Rehabilitation of

Condominium Projects

14.117 Mortgage Insurance - Homes

14.126 Mortgage Insurance - Cooperative Projects

14.127 Mortgage Insurance - Manufactured Home Parks

Community Planning and Development

14.218 Community Development Block Grants/Entitlement 

Grants

14.219 Community Development Block Grants/Small Cities 

Program

Public and Indian Housing

14.862 Indian Community Development Block Grant Program

Department of the Interior

Bureau of Land Management

15.214 Non-sale Disposals of Mineral Material

15.225 Recreation Resource Management
TCEQ/TSSWCB joint publication SFR-68/04 281

Office of Surface Mining Reclamation and Enforcement

15.250 Regulation of Surface Coal Mining and Surface Effects 

of Underground Coal Mining

15.252 Abandoned Mine Land Reclamation (AMLR) Program 

Fish and Wildlife Service

15.605 Sport Fish Restoration

15.611 Wildlife Restoration

15.614 Coastal Wetlands Planning, Protection and 

Restoration Act

15.615 Cooperative Endangered Species Conservation Fund

Geological Survey

15.805 Assistance to State Water Resources Research 

Institutes

15.808 U. S. Geological Survey - Research and Data 

Acquisition

National Park Service

15.916 Outdoor Recreation - Acquisition, Development and 

Planning

15.919 Urban Park and Recreation Recovery Program

Department of Transportation

Federal Aviation Administration

20.106 Airport Improvement Program

Federal Highway Administration

20.205 Highway Planning and Construction

20.219 Recreational Trails Program

Federal Railroad Administration

20.312 High Speed Ground Transportation - Next Generation High Speed Rail

Program

Federal Transit Administration

20.500 Federal Transit Capital Investment Grants

20.507 Federal Transit Formula Grants

20.509 Formula Grants for Other Than Urbanized Areas

Maritime Administration

20.801 Development and Promotion of Ports and Intermodal Transportation

20.812 Construction Reserve Fund
282 TCEQ/TSSWCB joint publication SFR-68/04

General Services Administration

39.002 Disposal of Federal Surplus Real Property

Small Business Administration

59.012 Small Business Loans

Environmental Protection Agency

Office of Air and Radiation

66.001 Air Pollution Control Program Support

Office of Water

66.419 Water Pollution Control - State and Interstate 

Program Support

66.424 Surveys, Studies, Demonstrations and Special Purpose - §1442 of the Safe

Drinking Water Act

66.433 State Underground Water Source Protection

66.439 Targeted Watershed Initiative

66.454 Water Quality Management Planning

66.456 National Estuary Program

66.458 Capitalization Grants for Clean Water State 

Revolving Funds

66.460 Nonpoint Source Implementation Grants

66.461 Wetland Program Development Grants

66.463 Water Quality Cooperative Agreements

66.468 Capitalization Grants for Drinking Water State 

Revolving Funds

66.472 Beach Monitoring and Notification Program Implementation Grants

66.474 Water Protection Grants to the States

66.475 Gulf of Mexico Program

66.476 Vulnerability Assessments and Related Security Improvements at Large

Drinking Water Utilities

66.477 Vulnerability Assessments and Related Security Improvements at Large

Privately-Owned Community Drinking Water Utilities

66.478 Water Security Training and Technical Assistance 

Grant Program

Offices of Air and Radiation; Water; Environmental Justice;

Environmental Information; Enforcement and Compliance Assurance;

Pesticides, Prevention and Toxic Substances; and Solid Waste and

Emergency Response

66.500 Environmental Protection - Consolidated Research

66.600 Environmental Protection Consolidated Grants 

Program Support
TCEQ/TSSWCB joint publication SFR-68/04 283

66.605 Performance Partnership Grants

Office of Enforcement and Compliance Assurance

66.700 Consolidated Pesticide Enforcement Cooperative 

Agreements

Office of Prevention, Pesticides and Toxic Substances

66.708 Pollution Prevention Grants Program

Office of Solid Waste and Emergency Response 

66.805 Leaking Underground Storage Tank Trust Fund Program

Office of Research and Development

66.807 Superfund Innovative Technology Evaluation Program

Office of Environmental Education

66.951 Environmental Education Grants

Department of Energy

Civilian Radioactive Waste Management

81.065 Nuclear Waste Disposal Siting

Office of Environmental Management

81.104 Office of Technology Development and Deployment for Environmental

Management

TCEQ Review of Federal Development Projects

The following is a list of the types of plans and development projects that are initiated

and managed by Federal agencies which may have an impact on the State's nonpoint

source management program. Not all of the activities listed below will be eligible for

§319 federal consistency reviews pursuant to Executive Order 12372.

USDA, Forest Service

Forest Plans

Resource Area Analyses

Integrated Resource Management Plans

Timber Activities/Sales

Range Activities/Game Range Analysis

Chemicals/Herbicides

Area Analysis/Cumulative Impacts Analysis

Recreation Development

Transportation Plans
284 TCEQ/TSSWCB joint publication SFR-68/04

Soil and Water Management 

Water Uses and Development

Soil and Water Improvement Projects

Public Water Supply Watershed Management

Hydrologic Modification

Wetlands Protection

"Every Species Counts" - recovery of threatened/endangered flora, fauna, fish, wildlife,

invertebrates, plants

Watershed, Fish, Wildlife, Air and Rare Plants Program

Riparian Management and Restoration and Wetlands Habitats Programs

Minerals Exploration and Development

Fuels Management

Applications for Permits to Drill

Oil and Gas Leasing/Reclamation Plans

Hydropower Licensing Activity in Coordination with Federal Energy Regulatory

Commission (FERC)/Special Use Permitting

ORV (Off-road Vehicles) Activities

Forest Fire Protection

Soil and Water Monitoring Program

Allotment Management Planning and Administration

Road Construction and Maintenance

Municipal Watershed Management Program

Floodplain Modifications

USDA, Natural Resources Conservation Service/Farm Service

Agency

Small Watershed Program

Department of the Interior, Bureau of Land Management

Watershed Projects

Mineral Exploration and Development

Coal, Oil and Gas Leasing

Coal Reclamation

Road Restoration, Upgrades and Closures

Timber Activities 

Rangeland Management Program

Chemical Pest Control/Pesticide Use Report

"Bring Back the Natives" - Conservation of Native Fishes

Area Analysis/Cumulative Impacts

Resource Management Plans

Wetlands Protection

Riparian Management Areas and Riparian Reserves

Hydrologic Units Mapping

Transportation Plans

Areas of Critical Environmental Concern (ACEC) Plans
TCEQ/TSSWCB joint publication SFR-68/04 285

Department of the Interior, Bureau of Reclamation

National Desalination Clearinghouse

Fisheries Applications Research

Flood Hydrology

Geotechnical Engineering

Hydroelectric Research

National Irrigation Water Quality Program (NIWQP)

Remote Sensing and GIS

Resource Management and Planning

River Systems and Meteorology

Sedimentation and River Hydraulics

Stream Corridor Restoration

Water Conservation Field Services Program

Water Operations - Upper and Lower Colorado River Regions

Department of the Interior, Fish and Wildlife Service

Management of National Wildlife Conservation - Refuges and Proposed Acquisitions

Department of the Interior, Surface Mining 

Regulation of active mines and reclamation of abandoned mines

Abandoned Mine Lands (AML) Program

Department of Defense, Defense Installations

Land Management Plans

Location, design and acquisition of new or expanded defense installations

Department of Defense, Corps of Engineers

Dredging

Channel Improvement

Breakwaters

Harbors and navigation channels

Erosion control structures

Shoreline Protection - Beach Replenishment

Regulation/Permitting - including wetlands

Dams or flood control works

Ice management practices

Land acquisition for spoil disposal or other purposes

Selection of open water disposal sites
286 TCEQ/TSSWCB joint publication SFR-68/04

Department of Transportation, Federal Aviation Administration

Location, design, construction, maintenance and demolition of Federal aids to air

navigation

Department of Transportation, U.S. Coast Guard

Location, design, construction, or enlargement of Coast Guard stations, bases, and

lighthouses

Location, placement, or removal of navigation devices which are not part of the routine

operations under the Aids to Navigation Program

Expansion, abandonment, designation of anchorages, lighting areas, or shipping lanes

and ice management practices and activities

General Services Administration

Acquisition, location, and design of proposed Federal government property or

buildings, whether leased or owned by the Federal government
TCEQ/TSSWCB joint publication SFR-68/04 287

APPENDIX H FUNDING

Funding sources available to support programs related to nonpoint source pollution

include:

Federal

# CWA §104(b)(3)

# CWA §106 Funds

# CWA §319(h) Grant Funds

# CWA §604(b) Funds

# FIFRA Funds

# Safe Drinking Water Act Grant Funds

# Solid Waste Disposal Act, §8001

# Superfund

# Non-game and Endangered Species Fund

STATE

# STATE GENERAL REVENUE FUNDS

# WATER QUALITY PERMIT FEES

# WATER RIGHTS PERMIT FEES

# STATE REVOLVING FUND

# TEXAS WATER DEVELOPMENT BOARD LOAN PROGRAMS AND

DEVELOPMENT FUNDS 

# GENERAL LAND OFFICE OIL SPILL FUND

# OSSF PERMIT AND LICENSE FEES

# FUND 0270, SOLID WASTE TIPPING FEES

# FUND 5500, STATE HAZARDOUS AND SOLID WASTE REMEDIATION FEES 

# SOLID WASTE FUND

# FUND 4680, TEXAS IRRIGATORS FUND

# FUND 0790, WATER WELL DRILLERS

# TEXAS CONSERVATION FUND

# WILDSCAPES FEES AND POSTER AND STAMP SALES

# RIVER AUTHORITY FUNDS

SPECIFIC FUNDING FOR TCEQ PROGRAMS

The Nonpoint Source Program Team is funded by Clean Water Act §319(h) and by

State General Revenue Funds.
288 TCEQ/TSSWCB joint publication SFR-68/04

The Clean Rivers Program is supported by the water quality fees from wastewater

discharge permits and water rights permits. Federal funding for Water Quality

Management Plans is provided by EPA through a 1% reserve of annual allocated funds

to the Texas Water Development Board for State Revolving Fund (SRF) loans. Of this

amount, 40% is passed through to the seven designated area regional planning

agencies.

Standards development and implementation and wetlands certification are funded by

§106 of the Clean Water Act and by State General Revenue Funds. 

The ongoing activities of the Surface Water Quality Monitoring Team are funded by

§106 and State General Revenue Funds.

Water Quality Modeling is funded by Clean Water Act 604(b) funds and State General

Revenue.

State General Revenue Funds, FEMA, and Clean Water Act §319(h) funds support the

Resource Protection Team, Interstate Compacts Team, and Water Rights Permit Team

(Water Rights Permitting and Availability Section) activities.

The Texas Watch Program (volunteer monitoring) is currently funded by Clean Water

Act §319(h). 

The Groundwater Planning and Assessment Team is funded from §106 ground water

funds, FIFRA funds, and State General Revenue Funds. 

The Galveston Bay Estuary Program is a continuation of the National Estuary Program

receiving funding under §320 fo the Clean Water Act, State General Revenue Funds,

Clean Water Act §104(b)(3) funds, and limited contributions from local governments.

Funding for the Coastal Bend Bays and Estuaries Program comes from Clean Water

Act Sections 104(b)(3) and 320 funds and State General Revenue Funds.

Funding for the Source Water Assessment and Protection Program is from the Drinking

Water State Revolving Fund. This fund was established under §1452 by Congress to

achieve or maintain compliance with Safe Drinking Water Act requirements.

Funding for the Small Towns Environmental Program comes from two self-help funds:

one administered by the Office of Rural Community Affairs, and one from the Texas

Water Development Board.

Funding for the On-Site Sewage Facilities program comes from the Clean Water Act

§319 portion of the Performance Partnership Grant awarded by EPA. However,

legislation has also provided for the following methods of funding for continued

program operations:
TCEQ/TSSWCB joint publication SFR-68/04 289

# Fees may be collected for all OSSF permits issued by TCEQ. The fees

collected by the authorized agents are not controlled by the TCEQ and

vary between entities.

# OSSF installers are required to pay a fee to obtain a license, and a

yearly renewal fee to maintain the license.

Clean Texas- Cleaner World funds come from Fund 0270, solid waste tipping fees, and

CWA Sections 319(h) and 106 grants.

Texas Country Cleanups and the Lake and River Cleanup are funded from the Solid

Waste Fund. Fund 5500, from hazardous waste generation fees, provides funds for the

Agricultural Waste Pesticide Program and the Household Hazardous Waste Program.

The Used Oil and Used Oil Filter Recycling Program is funded by revenues in the Used

Oil Recycling Fund. 

Funding for the Emergency Response Program, the Superfund Site Discovery and

Assessment Team, and the Natural Resource Damage Assessment Team comes from

Fund 5500, State Hazardous and the Solid Waste Remediation Fee Fund.

The Illegal Disposal Program is funded under the Solid Waste Disposal Act, §8001, and

with State General Revenue Funds. 

Occupational Certification Program funding comes from the following areas:

# Landscape Irrigation: Fund 4680

# On-site Sewage Facility Installation: General Revenue Fund 0010

# Water Well Drilling: Fund 0790

# Water Pump Installation: Fund 0790

Funding for the Edwards Aquifer Program comes from State funds supplemented by

319 grant funding.

Funding Sources for Agricultural & Silvicultural Nonpoint

Source Pollution Abatement

In Texas, planning, implementing, and managing programs and practices for the

abatement of agricultural and silvicultural nonpoint source pollution is the

responsibility of the Texas State Soil and Water Conservation Board. However, other

organizations and their programs play major roles. Because nonpoint source control is

costly, efforts in Texas tend to rely on cooperation and coordination to make use of

existing resources where possible.

Nonpoint source management programs utilize existing information, education, and

demonstration capabilities to educate and inform farmers, ranchers, and other

producers of the potential for nonpoint source pollution to occur as a result of
290 TCEQ/TSSWCB joint publication SFR-68/04

agricultural or silvicultural activities. Technical assistance programs, both state and

federal, are used to assist in the implementation of best management practices

contained in nonpoint source management programs. Cost-share incentive programs

are utilized where applicable and available to provide incentives for installation of best

management practices. Research organizations are relied upon to provide needed

research to advance the effectiveness of nonpoint source management programs and

keep pace with advances in agricultural and silvicultural production methods. Loan

programs, where applicable, help producers implement best management practices.

Where necessary and desirable, new and innovative solutions are sought to address

problems that cannot be handled by existing programs.

Below is a brief description of the major funding sources used in Texas to address

agricultural and silvicultural nonpoint source pollution:

# Water Quality Management Plan Program - Cost-share assistance for

water quality benefits is available through the TSSWCB Water Quality

Management Plan Program (a.k.a. Senate Bill 503 Program).

# Nonpoint Source Implementation Grants (319 Program) - The 319

program administered by the TSSWCB provides funding to implement

projects to abate agricultural and silvicultural nonpoint source

pollution.

# Watershed Protection and Flood Prevention Program - Projects

eligible for funding through this NRCS administered program include

watershed protection, flood prevention, erosion and sediment control,

water supply, water quality, fish and wildlife habitat enhancement

wetlands creation and restoration, and public recreation in

watersheds of 250,000 or fewer acres.

# Wetlands Reserve Program (WRP) - WRP is a voluntary program

administered by NRCS that provides technical and financial

assistance to eligible landowners to enhance degraded wetlands in

exchange for retiring marginal land from agriculture.

# Environmental Quality Incentives Program (EQIP) - EQIP is a

voluntary conservation program administered by NRCS that provides

farmers and ranchers with financial and technical assistance to install

or implement structural and management conservation practices to

address local natural resource concerns on eligible agricultural land.

# Agricultural Loan Program (Farm Loan Program) - FSA makes direct

and guaranteed farm ownership and operating loans to farmers and

ranchers who are temporarily unable to obtain private, commercial

credit for land purchases, livestock, equipment, feed, seed and

supplies.

# Conservation Reserve Program (CRP) - CRP is a voluntary

conservation program administered by FSA, with NRCS providing

technical assistance, that provides technical and financial assistance

to eligible farmers and ranchers to address soil, water, and related
TCEQ/TSSWCB joint publication SFR-68/04 291

resource concerns through conversion of sensitive acreage to

vegetative cover in return for annual rental payments.

# Creekside Conservation Program - A partnership between Lower

Colorado River Authority, NRCS and local SWCDs to provide

technical and financial assistance to reduce sedimentation and

nonpoint source pollution on privately owned land in 11 counties in

the Colorado River Basin. 

# Forest Land Enhancement Program (FLEP) - FLEP, administered by

the Texas Forest Service, provides financial, technical, educational

and related assistance to private landowners in actively managing

their land.

# Coastal Zone Management Administration/Implementation Awards -

Funds are available to support NPS projects in the coastal

management zone and to implement agricultural and silvicultural

management measures in the Texas Coastal Nonpoint Pollution

Control Plan.

# Clean Water State Revolving Funds - This program, administered by

the TWDB, provides incorporated political subdivisions (Cities,

Towns) with the authority to own and operate a wastewater system. It

also provides incorporated political subdivisions, unincorporated

political subdivisions (Counties, River Authorities, Water Supply

Districts, Independent School Districts), and private individuals or

non-profit entities (for nonpoint source pollution control loans only)

loans for the financing, planning, design and construction of projects

for wastewater treatment facilities, reuse and recycle facilities,

collection systems, storm water pollution controls, and

implementation of nonpoint source pollution controls.
292 TCEQ/TSSWCB joint publication SFR-68/04

APPENDIX I SUMMARY OF PUBLIC RESPONSES

A public notice of final review was posted in the Texas Register on July 15, 2005 for a

30 day period, which ended on August 14, 2005. No comments were received during

this public final review period. 
TCEQ/TSSWCB joint publication SFR-68/04 293

APPENDIX J ACRONYMS AND ABBREVIATIONS

AAH Adopt-a-Highway

AFOs animal feeding operations

ASDWA Association of State Drinking Water Administrators 

ASIWPCA Association for State and Interstate Water Pollution Control

Administrators

AST aboveground storage tank

AWWA American Water Works Association 

BEG Bureau of Economic Geology

BEIF Border Environment Infrastructure Fund

BMPs best management practices

BRC Bureau of Radiation Control

BSEACD Barton Springs/Edwards Aquifer Conservation District

CAFOs concentrated animal feeding operations

CBBEP Coastal Bend Bays & Estuaries Program

CCC Commodity Credit Corporation

CCC Coastal Coordination Council

CCMP Comprehensive Conservation and Management Plan

CFR Code of Federal Regulations

COGs Councils of Government 

COMAPA Comision Municipal de Agua Potable y Alcantarillado

CMP Coastal Management Program

CRP Clean Rivers Program 

CSG Council of State Governments 

CWA Clean Water Act

CWSRF Clean Water State Revolving Fund 

CZMA Coastal Zone Management Act

DFE Dallas Floodway Extension

DSHS Texas Department of State Health Services

DMWT Don't Mess with Texas

DoC Drop-off Center

DOPA Dairy Outreach Program Areas

EDAP Economically Distressed Areas Program 

EMPACT Environmental Monitoring for Public Access and Community Tracking 

EPWU City of El Paso Water Utilities

EQIP Environmental Quality Incentives Program 

FIFRA Federal Insecticide, Fungicide and Rodenticide Act

FLEP Forest Land Enhancement Program

GBEP Galveston Bay Estuary Program

GCRP Gulf of Mexico Community-Based Restoration Program

GLO Texas General Land Office

GPC Texas Groundwater Protection Committee

GWPC Ground Water Protection Council

HHW household hazardous waste

IBWC International Boundary Water Commission
294 TCEQ/TSSWCB joint publication SFR-68/04

ISD independent school district

iSWM integrated Storm Water Management 

KAST Kills and Spills Team

KTB Keep Texas Beautiful

LCRA Lower Colorado River Authority

LPST leaking petroleum storage tank

MCL's maximum contaminant levels

MDL minimum detection level

MSW municipal solid waste

MxIBWC Mexico International Boundary Water Commission

NADB North American Development Bank

NAFTA North American Free Trade Agreement

NAWQA National Water Quality Assessment Program

NCTCOG North Central Texas Council of Governments

NFIP National Flood Insurance Program

NIPF nonindustrial private forest

NLIWTP Nuevo Laredo International Wastewater Treatment Plant

NNRCF National Natural Resources Conservation Foundation 

NOAA National Oceanic and Atmospheric Administration

NPDES National Pollutant Discharge Elimination System

NPS nonpoint source pollution

NRCS Natural Resources Conservation Service 

OAG Texas Office of Attorney General

OFCU Oil Field Clean Up

OSPR Oil Spill Prevention and Response

OSPRA Oil Spill Prevention and Response Act of 1991

OSSF on-site sewage facilities

PCBs polychlorinated biphenyls

PMP Pesticide Management Plan

PWE Public Works and Engineering

RG/RBBC Rio Grande/Rio Bravo Basin Coalition

RCRA Resource Conservation and Recovery Act 

RRC Railroad Commission of Texas

SDWA Safe Drinking Water Act

SEP supplemental environmental project

SPCB Structural Pest Control Board

SWA source water assessment

SWCDs Soil and Water Conservation Districts

SWP source water protection

TAES Texas Agricultural Experiment Station

TAGD Texas Alliance of Groundwater Districts 

TCC Texas Chemical Council

TCE Texas Cooperative Extension

TCEQ Texas Commission on Environmental Quality

TDA Texas Department of Agriculture

TDLR Texas Department of Licensing and Regulation
TCEQ/TSSWCB joint publication SFR-68/04 295

TDS Total dissolved solids

TES Teaching Environmental Sciences

TFA Texas Forestry Association

TFS Texas Forest Service

TGPC Texas Groundwater Protection Committee

TIAER Texas Institute for Applied Environmental Research

TMDL Total Maximum Daily Load 

TPDES Texas Pollutant Discharge Elimination System

TPWD Texas Parks and Wildlife Department

TSSWCB Texas State Soil and Water Conservation Board

TSWQS Texas Surface Water Quality Standards 

TWC Texas Water Code

TWDB Texas Water Development Board

TWPC Texas Watershed Protection Committee 

TxDOT Texas Department of Transportation

UCRA Upper Colorado River Authority

UIC underground injection control

USDW underground sources of drinking water 

USGS United States Geological Survey

USIBWC United States International Boundary Water Commission

UST underground storage tank 

VCP Voluntary Cleanup Program

WET Water Education for Teachers

WPAP water pollution abatement plan

WQMP water quality management plans

WRP Wetlands Reserve Program
296 TCEQ/TSSWCB joint publication SFR-68/04

APPENDIX K WEB SITES OF INTEREST

This list offers readers with web addresses for web sites that contain information about

the programs, agencies, and organizations discussed in this document. Many are

organizational home pages that have links to more detailed information regarding

nonpoint source pollution.

Bay and Estuary Programs 

Coastal Bend Bay and Estuaries Program 

http://www.cbbep.org/

Galveston Bay and Estuaries Program

http://gbep.state.tx.us

Cities

City of Abilene

http://www.abilenetx.com

City of Austin

http://www.ci.austin.tx.us/

City of Dallas

http://www.dallascityhall.com/

City of Denton 

http://www.cityofdenton.com

City of El Paso

http://www.ci.el-paso.tx.us/default.asp

City of Fort Worth

http://www.fortworthgov.org

City of Houston

http://www.houstontx.gov/

City of Laredo

http://www.ci.laredo.tx.us/

City of San Angelo

http://www.sanangelotexas.org

City of San Antonio 

http://www.sanantonio.gov
TCEQ/TSSWCB joint publication SFR-68/04 297

Council of Governments

Council of State Governments

http://www.csg.org/csg/default

Houston Galveston Area Council

http://www.h-gac.com/HGAC/home/ 

North Central Texas Council of Governments

http://www.nctcog.org

Federal Agencies

National Natural Resources Conservation Foundation

http://www.nrcs.usda.gov/

National Oceanic and Atmospheric Administration

http://www.noaa.gov/

U.S. Army Corp of Engineers 

http://www.usace.army.mil/

U.S. Coast Guard

http://www.uscg.mil/USCG.shtm

U.S. Department of Agriculture 

http://www.usda.gov/

U.S. Environmental Protection Agency 

http://www.epa.gov/

U. S. Geological Survey 

http://www.usgs.gov/

Groundwater Protection

Barton Springs/Edwards Aquifer Conservation District

http://www.bseacd.org/

Edwards Aquifer Authority

http://www.edwardsaquifer.org/

Groundwater Protection Council

http://www.gwpc.org/
298 TCEQ/TSSWCB joint publication SFR-68/04

Texas Alliance of Groundwater Districts or Texas Groundwater Alliance

http://www.texasgroundwater.org/

Texas Groundwater Protection Committee 

http://www.tgpc.state.tx.us/

Industrial Councils

Texas Chemical Council 

http://www.txchemcouncil.org/

Texas Nursery and Landscape Association

http://txnla.org/

Interstate and International Agencies

American Water Works Association 

http://www.awwa.org/

Association of State Drinking Water Administrators

http://www.asdwa.org

Association for State and Interstate Water Pollution Control Administrators

http://www.asiwpca.org/ 

Border Environment Cooperation Commission

http://www.cocef.org/ingles.php

International Boundary and Water Commission 

http://www.ibwc.state.gov/

North American Development Bank

http://www.nadbank.org/

Pollution Control Administrators

http://www.asiwpca.org/

Rio Grande/Rio Bravo Basin Coalition

http://www.rioweb.com

River Authorities

Brazos River Authority

http://www.brazos.org
TCEQ/TSSWCB joint publication SFR-68/04 299

Lower Colorado River Authority

http://www.lcra.org/index.html

San Antonio River Authority

http://www.sara-tx.org

Upper Colorado River Authority

http://www.ucratx.org

State Agencies

Agriculture Resource Protection Authority

http://www.agr.state.tx.us/

Bureau of Economic Geology (University of Texas)

http://www.beg.utexas.edu

Coastal Coordination Council

http://www.glo.state.tx.us/coastal/ccc.html

Railroad Commission of Texas

http://www.rrc.state.tx.us

Structural Pest Control Board

http://www.spcb.state.tx.us/

Texas Agricultural Experiment Station

http://agresearch.tamu.edu/

Texas A&M On-Site Treatment Training Center

http://primera.tamu.edu/IRRGSYS/waste.htm

Texas Commission on Environmental Quality 

http://www.tceq.state.tx.us/index.html

Texas Cooperative Extension Services

http://texasextension.tamu.edu/

Texas Department of Agriculture

http://www.agr.state.tx.us

Texas Department of State Health Services

http://www.DSHS.state.tx.us

Texas Department of Licensing and Regulation

http://www.license.state.tx.us/
300 TCEQ/TSSWCB joint publication SFR-68/04

Texas Department of Transportation

http://www.dot.state.tx.us

Texas General Land Office

http://www.glo.state.tx.us

Texas Farm Services Agency

http://www.fsa.usda.gov/tx/

Texas Forest Service

http://txforestservice.tamu.edu/

Texas Forestry Association

http://www.texasforestry.org/

Texas Institute for Applied Environmental Research (Tarleton State Univ.)

http://tiaer.tarleton.edu/

Texas Office of Attorney General 

http://www.oag.state.tx.us/

Texas On-Site Wastewater Treatment Research Council 

http://www.towtrc.state.tx.us/

Texas Parks and Wildlife Department

http://www.tpwd.state.tx.us

Texas Secretary of State Office

http://www.sos.state.tx.us/

Texas State Soil and Water Conservation Board

http://www.tsswcb.state.tx.us/

Texas Watch (Texas State University)

http://www.texaswatch.geo.swt.edu/

Texas Water Development Board 

http://www.twdb.state.tx.us

Texas Water Resources Institute (Texas A&M University)

http://twri.tamu.edu/
33.1. Preservation; How Shown, TX R APP Rule 33.1

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Rules Annotated

Texas Rules of Appellate Procedure

Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)

Rule 33. Preservation of Appellate Complaints (Refs & Annos)

TX Rules App.Proc., Rule 33.1

33.1. Preservation; How Shown

Currentness

(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to

make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or

Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify

the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary

to properly present the complaint in the trial court.

(c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed,

separate order is required to preserve a complaint for appeal.

(d) Sufficiency of Evidence Complaints in Nonjury Cases. In a nonjury case, a complaint regarding the legal or factual

insufficiency of the evidence--including a complaint that the damages found by the court are excessive or inadequate, as

distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of

fact--may be made for the first time on appeal in the complaining party's brief.

Credits

Eff. Sept. 1, 1997. Amended by Supreme Court Dec. 23, 2002, eff. Jan. 1, 2003.
33.1. Preservation; How Shown, TX R APP Rule 33.1

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Editors' Notes

NOTES AND COMMENTS

Comment to 2002 change: The last sentence of former Rule 52(d) of the Rules of Appellate Procedure has been

reinstated in substance.

Notes of Decisions (3438)

Rules App. Proc., Rule 33.1, TX R APP Rule 33.1

Current with amendments received through 6/1/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
43.2. Types of Judgment, TX R APP Rule 43.2

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Rules Annotated

Texas Rules of Appellate Procedure

Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)

Rule 43. Judgment of the Court of Appeals (Refs & Annos)

TX Rules App.Proc., Rule 43.2

43.2. Types of Judgment

Currentness

The court of appeals may:

(a) affirm the trial court's judgment in whole or in part;

(b) modify the trial court's judgment and affirm it as modified;

(c) reverse the trial court's judgment in whole or in part and render the judgment that the trial court should have rendered;

(d) reverse the trial court's judgment and remand the case for further proceedings;

(e) vacate the trial court's judgment and dismiss the case; or

(f) dismiss the appeal.

Credits

Eff. Sept. 1, 1997.

Notes of Decisions (119)

Rules App. Proc., Rule 43.2, TX R APP Rule 43.2

Current with amendments received through 6/1/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Rule 801. Definitions That Apply to This Article; Exclusions..., TX R EVID Rule 801

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Rules Annotated

Texas Rules of Evidence (Refs & Annos)

Article VIII. Hearsay (Refs & Annos)

TX Rules of Evidence, Rule 801

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

Currentness

(a) Statement. “Statement” means a person's oral or written verbal expression, or nonverbal conduct that a person intended

as a substitute for verbal expression.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Matter Asserted. “Matter asserted” means:

(1) any matter a declarant explicitly asserts; and

(2) any matter implied by a statement, if the probative value of the statement as offered flows from the declarant's belief

about the matter.

(d) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(e) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior

statement, and the statement:

(A) is inconsistent with the declarant's testimony and:

(i) when offered in a civil case, was given under penalty of perjury at a trial, hearing, or other proceeding or in a

deposition; or
Rule 801. Definitions That Apply to This Article; Exclusions..., TX R EVID Rule 801

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(ii) when offered in a criminal case, was given under penalty of perjury at a trial, hearing, or other proceeding--except

a grand jury proceeding--or in a deposition;

(B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant

recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

(3) A Deponent's Statement. In a civil case, the statement was made in a deposition taken in the same proceeding. “Same

proceeding” is defined in Rule of Civil Procedure 203.6(b). The deponent's unavailability as a witness is not a requirement

for admissibility.

Credits

Adopted eff. March 1, 1998. Amended eff. Jan. 1, 1999. Amended by orders of Supreme Court March 10, 2015 and Court of

Criminal Appeals March 12, 2015, eff. April 1, 2015.

Editors' Notes

NOTES AND COMMENTS

Comment to 2015 Restyling: Statements falling under the hearsay exclusion provided by Rule 801(e)(2) are no

longer referred to as “admissions” in the title to the subdivision. The term “admissions” is confusing because not all

statements covered by the exclusion are admissions in the colloquial sense--a statement can be within the exclusion

even if it “admitted” nothing and was not against the party's interest when made. The term “admissions” also raises

confusion in comparison with the Rule 803(24) exception for declarations against interest. No change in application

of the exclusion is intended.

The deletion of former Rule 801(e)(1)(D), which cross-references Code of Criminal Procedure art. 38.071, is not

intended as a substantive change. Including this cross-reference made sense when the Texas Rules of Criminal
Rule 801. Definitions That Apply to This Article; Exclusions..., TX R EVID Rule 801

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Evidence were first promulgated, but with subsequent changes to the statutory provision, its inclusion is no longer

appropriate. The version of article 38.071 that was initially cross-referenced in the Rules of Criminal Evidence

required the declarant-victim to be available to testify at the trial. That requirement has since been deleted from the

statute, and the statute no longer requires either the availability or testimony of the declarant-victim. Thus, crossreferencing the statute in Rule 801(e)(1), which applies only when the declarant testifies at trial about the prior

statement, no longer makes sense. Moreover, article 38.071 is but one of a number of statutes that mandate the

admission of certain hearsay statements in particular circumstances. See, e.g., Code of Criminal Procedure art. 38.072;

Family Code §§ 54.031, 104.002, 104.006. These statutory provisions take precedence over the general rule excluding

hearsay, see Rules 101(c) and 802, and there is no apparent justification for cross-referencing article 38.071 and not

all other such provisions.

Notes of Decisions (730)

Rules of Evid., Rule 801, TX R EVID Rule 801

Current with amendments received through 6/1/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.