### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00049- CV

End Op, L .P . and L ost P ines Gr ound water Conservation Distric t, Appellants

v. Andrew Meyer , Bette Brown , Darwyn Han na, and Envi ronm ental Stewardsh ip, App ellees

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 29,6 96, H ONO RAB LE CARSON TALMADGE CAMP B ELL, JUDGE P RESIDING

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

This is a dispute over whethe r t h e appellees have standing to contest cer tain
g roundwa ter permit applications. Appellants are L ost Pines Groundwa ter Conservation District and End Op, L .P., an investment g roup that filed an application in 2007 for opera tin g and transport permits. Appellee s are an environmenta l non-prof it org anization and a g roup of landowner s (collec tively , the L andowne rs) that soug ht to participa te in the contested case reg arding the permit application, which was alre ady proce eding at the State Offic e of Administr at i v e P roceeding s (SOAH) by ag ree ment betwee n the District and SOAH. On SOAH’s rec ommendation, the District denied the L andowne rs’ reque st for party s t at u s , allowing only one entity —one of End Op’s competit o rs

— t o contest the application. The District ultimately g rante d End Op’s application in 2016 afte r adopting the proposal f or dec ision render ed by

SOAH’s administrative law judge

.The L andowne rs sued the District in Ba str o p C o unty , filing three petitions for

judicial revie w o f t h e Di strict’s order deny ing party status and its final order g ranting End Op’s permit application

. End Op intervene d shortly there afte r, filing a counter claim that was later dismiss ed for

want of jurisdiction. Afte r consolidating the L andowne rs’ three actions, the district
court ultimately reve rsed the District’s disputed order s and rende red judgme nt order ing the District
to withdraw End Op’s permits and allow the L andowne rs to participa te as parties to a new contested

case on the per

mit application. The District and End O p perf ecte d timely

appea l. The parties have b riefe d this Court primarily on standing and the standard of revie w the district court should have applied to the District’s order reg arding party status. We find it unnece ssary to rea ch these arg uments, as the predic ate question of j u ri s d i ct i on is dispositi ve of this appeal. “The trial court must deter mine at its ear liest opportunity whet her it has the constitutional or statutory authority to decide the case befor e allowing the l i t i gat i o n to proce ed.” Texas Dep’t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004) (citing Austin & N.W .R. Co. v. Cluck , 77 S.W

. 403, 405 (Tex. 1903)). Where the jurisdictional fac ts are undisputed,

as is the case here , we revie w de n o v o a district court’s jurisdiction over the subject matter of a dispute. See id. I f we fi n d an absenc e of jurisdiction due to a cura ble pleading defe ct, we will

rema nd to a ffor d the plaintiff an opportunity to r eplea d. Id. at 226–27. I f, howe ver, the pleading s aff irmatively neg ate the exis tence of jurisdiction, the plaintiff nee d not be af forde d an opportunity to amend. Id.

2“L ike other g overnme ntal entities, g roun d water districts have g overnme ntal

immunit y unless the L eg islature has waived the district’s rig ht to g overnme ntal immunit y .” Lone S ta r G r o u n d

wa te r Co n s e r

v a ti o n D is t. v
. Ci ty o

f Co n r o e , 5 1 5 S. W. 3 d 4 0 6 , 4 1 2 ( T e x. A p p . —Be aumont 2017, no pet.) (citing Kirby Lake Dev ., Ltd. v. Clear Lake City W ater Auth ., 320 S.W .3d 829, 835–36 ( T e x. 2 0 1 0 ) )

. “ U n li k e im

mu n it y f r o m li a b il it y , im mu n it y f r o m s u it d e p r iv e s th e c o u

r ts o f ju r is d ic ti o n and thus completely bars the plaintiff’s claim.” Lubbock Cty. W ater Control & Imp. Dist. v. Church & Akin, L

. L

. C. , 442 S.W .3d 297, 300 (Tex. 2014) (citing W ichita Falls State Hosp. v. Taylor , 106 S.W .3d 692, 696 (Tex. 20 0 3 ))

. Wit h respe ct to g roundwa ter districts, the L eg islature has provided a

limit ed wa iver of this immunity :
(a) A person, firm, corpor ation, or association of persons aff ecte d by and dissatisfied with any rule or order made by a district, including an ap p ea l o f a decision on a permit application, is entitled to file a suit aga i n s t t h e district or its direc tors to challeng e the va lidity

of the law , rule, or or der. (b) Only the district, the applicant, and p ar t i es to a contested case hear ing may participa te i n an appe al of a decision on the a

pplication that was the subjec t of that contested case hear ing. An appea l of a decision on a permit application must include the applica

nt as a ne cessa

ry party

. (c) The suit shall be filed in a court of competent jurisdiction in any county in which the district or any

part of the district is located. The suit may only be filed a fter a ll administrative appe als to the district are final.

Tex. Water Code § 36.251. Subsection (b) was added by the 84th L eg islature, and applies to suits filed on or afte r J une 10, 2015. See Act of May 20, 2015, 84th L eg ., R.S., ch. 415, § 15, 2015 Gen.
L aws 1657, 1660 (c odified at Te x . Water Code § 36.251(b) ).

3The L andowne rs challenge t wo o rd ers rende red by the District: the order deny ing

their reque st to be made p ar t i es t o the contested case and the final order g ranting End Op’s application for opera ting and transport permits. Undisputed aspec ts of this rec ord reve al the district court ha d no jurisdiction over these or ders.

The L andowne rs failed to file timely petition for revie w of the Distr i ct’s order
reg arding party status, which issued on J anuar y 19, 2015. A suit for revie w of that order can “only be filed afte r all administrative appea ls to the district are final.” Id. § 36. 2 5 1(c)

. Administrative
appea l of the order is g overne d by “Subchapte rs C, D, and F, Chapter 2001, Gover nment Code.” Id. § 36.416. Acc ording ly , these administrative appea ls wer e “fina l” when the L and o wn er s ’ motion for re h ea ri ng was overr

uled by opera tion of law on Marc h 15, 2015. See Tex. Gov’t Code §§ 2001.144(a) (2) (def

ining finality), .146(c) (allowing 55 day s for decision befor e motion is denied by opera t i on of law). The L andowne rs filed a timely motion for rehe aring but did not wait for a decision on that motion befor e seeking judicial revie w. Nor di d t h ey fi l e a second suit afte r the motion was denied by opera tion of law. Absent an appli ca b l e saving s clause , courts have no jurisdiction over a prema turely filed suit for revie w of administrative action. See Lindsay v. Sterling , 690 S.W .2d 560, 563 (Tex. 1985) (“The require ment of havi n g a motion for rehe aring overr uled, thus exhausting administrative reme dies, is a jurisdictional prer equisite t o judicial revie w by the district court and cannot be waived by action of the parties.” ). The L eg islature has rec ently amende d the Administrative Procedur e Act to extend the waiver of sovere ign and g overnme ntal immunit y to

rea ch cer tain prema turely filed suits for revie w. See Act of J une 16, 2015, 84th L eg ., R.S., ch. 625, § 11, 2015 Tex. Gen. L aws 2058, 2061 (codifie d at Tex. Gov’t Code § 2001.176(a) ). That provision,

4howeve r, does not apply to this suit. See Tex. Water Code § 36.416 (subjecting g roundwa ter permit h earing s to subchapte rs C, D, and F of the Administrative Procedur e Act, but not su b ch ap t er G, which includes the saving s clause in se ction 2001.176(a) ).

The district court likewise lacke d jurisdiction over the L andowne rs’ challeng e to the final orde r g ranting the di sputed permit application. That order i ssued i n September of 2016, and there fore the amende d version of Section 36.251 applies to the suit for revie w of the order

. See Act of May 20, 2015, 84th L eg ., R.S., ch. 415 , § 15, 2015 Gen. L aws 1657, 1660. As a consequenc e, the rig ht to seek judicial revie w is limit ed to “[o] nly the district, the applicant, and parties to a contested case hear ing.” Id. § 36.251(b). Thus, beca use the L andowne rs wer e not ma de parties to the contested case , they cannot now avail themselves of a waiver of g overnme ntal immunit y limit ed only to those parties

.

The L andow ners contend t heir suit is not subject t o these jurisdi ctional constraints beca use—as they char acte rize it—they intend to raise “constitutional challeng es” to the Dis trict’s order deny ing them party status. Even assuming the L andowne rs could amend their pleading s and raise a constitutional theory consistent with the high court’s holdings in Edwards Aquifer Authority

v. Day , 369 S.W .3d 814 (Tex. 2012), t h e claim would be barr ed by the doctrine of redunda nt

reme dies. “Unde r the redunda nt reme dies doctrine, courts will not enter tain an action broug ht under the UDJA when the same claim could be pursued throug h differ ent channe ls.” Patel v. Texas Dep’ t of Licensing & Regulation , 469 S.W .3d 69, 79 (Tex. 2 0 1 5 ) (c i t i n g Texas Mun. Power Agenc y v. Public Util. Comm’n , 253 S.W .3d 184, 200 (T ex . 2 0 0 7 )). “The focus of the doctrine is on the initiation of the case , t h at i s , whether the L eg islature cre ated a statutory waiver of sovere ign

5immunit y that permits the parties to raise their claims throug h some avenue other than the UDJA.”

Id. (citing Alamo Express, Inc. v. Union City Transfer , 309 S.W .2d 815, 827 (Tex. 1958)). “When
a st atute provides an avenue for attacking an age ncy ord er, a declara tory judgme nt action will not lie to provide redunda

nt reme dies.” Aaron Rents, Inc. v. Travis Cent. Appraisal Dist ., 212 S.W .3d 665, 669 (Tex. App.—Aust i n 2006, no pet.) (en banc) ; see also McLane Co. v. Texas Alcoholic Bev erage Comm’n , 514 S.W .3d 871 (Tex. App.—Austin 20 1 7 , p et. denied)

. The test for redunda ncy i s wh et h er “the decla ration soug ht g oes bey ond reve rsal of an ag ency order .” Patel , 469 S.W .3d at 79.

The L andowne rs’ arg uments reg arding an alleg ed constitutio n a l v io la ti o n a r e th e v e r y

same arg uments raised in their untimely suit broug ht under section 36.251 of the Water Code. And the relief they seek—injunction of the now-issued opera ting permits until a new contested case can be hear d—might have been aff orded by the district court had the L andowne rs soug ht timely revie w of the order pursuant to that section. Thus, unlike Patel , in which the plaintiffs soug ht interpre tation and injunction of cer

tain statutes in addition to relief from adminis t ra t i v e order s, in this case any decla ration or injunction would g o no further than the decla ration and injunction available in a suit for judicial revie w. See id. Be cause the L andowne rs’ hy pothetical constitutional claim is redunda nt

o f t h e claim that could have—a nd should have—be en broug ht under the statutory waiver of immunit y set forth in chapte r 36 of the Water Code, the district court would have no jurisdiction to
enter tain such a c laim.

Having conclude d that the district c ourt lacke d jurisdiction ove r the subject matter, and having conclude d that the pleading s and the rec ord af fi rmatively neg ate the exis tence of that

6jurisdiction, we do not rea ch the parties’ arg uments reg arding the merits of this dispute. We reve rse

the district court’s holding reg arding jurisdiction and vacate the rema inder of its final judgme nt. The

case is dismi ssed.

_________________________________________ J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field Concurring Opinion by J ustice Pemberton Vac ated in Part; Rever sed and Rende red in Part Filed: Aug ust 29, 2018

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