ENVIRONMENTAL AND WATER LAW

SPRING 2020

 

 

Texas Commission on Environmental Quality v. Brazos Valley Energy, LLC, 582 S.W.3d 277 (Tex. 2019)

 

TCEQ Had No Discretion to Issue Negative Use Determination for Tax Exemption: The Court determined that under Tex. Tax Code sec. 11.31, the TCEQ has no discretion to deny ad valorem tax exemptions for devices that the Texas Legislature has determined are “pollution control devices.”  This includes the property types listed in sec. 11.31(k) of the Tex. Tax Code, such as the heat recovery steam generators at issue in this case.  The court noted accord with its opinion in Brazos Electric Power Cooperative v. Texas Commission on Environmental Quality, 576 S.W.3d 374 (Tex. 2019).  The court issued these two opinions on the same day.

 

 

Konark Ltd. Partnership v. BTX Schools, Inc., 580 S.W.3d 194 (Tex. App.—San Antonio 2018)

 

Owner/Lessor Not Entitled to Governmental Immunity in Water Diversion Controversy:  Konark owned an apartment complex next door to a charter school.  BTX, a Texas non-profit corporation, held the charter under the Charter Schools Act (Tex. Educ. Code Ann. Sec. 12.1012(1)) and leased the school property from the owner, Basis Schools (“Basis”), the sole member of BTX and an Arizona nonprofit corporation.  Konark sued BTX and Basis for allegedly diverting the natural flow of diffused surface water which damaged Konark’s property.  Tex. Water Code sec. 11.086(a) prohibits such diversion.  The defendants filed a joint plea to the jurisdiction (challenging subject matter jurisdiction), alleging governmental immunity under the Charter Schools Act (Tex. Educ. Code Ann. sec. 12.1056(a)), which the trial court granted.  The appellate court’s opinion discusses and provides detailed information about the Charter Schools Act and potential immunity for different types of charter schools.  Such discussion includes amendments and judicial interpretation since enactment in 1995 and analysis regarding potential immunity under the Water Code provision. Held: The court reversed the trial court’s grant of the plea for Basis (i.e., governmental immunity does not apply), which is all that Konark appealed.  The court also denied defendants’ cross-appeal asking the court to dismiss Konark’s claims with prejudice.  Per the court, if BTX is not a governmental subdivision or agency, then the trial court would have jurisdiction under the Water Code section.

Powell v. City of Houston, 580 S.W.3d 391 (Tex. App.—Houston [1st Dist.] 2019)

 

City's Historic Preservation Ordinance is not a Zoning Ordinance and Instead fits Within City's Home-Rule Powers of Self-Government:  Plaintiff homeowners in a designated historic district in Houston challenged the City's 1995 Historic Preservation Ordinance ("HPO"), as amended, as invalid under the City's Charter and the Texas Local Government Code. Held: The appellate court affirmed the trial court's take-nothing judgment for the City, finding that the HPO is not a zoning measure.  This opinion discusses the broad powers of home-rule cities like Houston, as well as the nature of zoning ordinances relative to home-rule cities' police powers to regulate certain land usage short of actual zoning.

 

 

San Antonio River Authority v. Austin Bridge & Road, LP, 581 S.W.3d 245 (Tex. App.—San Antonio 2017)

 

No Prohibition on River Authority Engaging in Binding Arbitration:  This contractual and governmental immunity centered dispute relates to a contract for repairing the Medina Lake Dam.  In addition to the court’s analysis and decision that the river authority’s governmental immunity was waived in this contract for goods and services under the Texas Local Government Code, the court addressed and denied the river authority’s alternative argument that it was not authorized to agree to binding arbitration under relevant sections of the Texas Government Code.

 

Bailey v. Smith, 581 S.W.3d 374 (Tex. App.—Austin 2019)

 

Breeder Whitetail Deer are Wild Animals:  In a dispute with the Texas Department of Parks & Wildlife (“TPWD”), private individuals with TPWD permits to possess in captivity and breed whitetail deer sued TPWD and related officials.  Plaintiffs claimed such deer were private property and that TPWD emergency rules enhancing required testing for chronic wasting disease were invalid.  Particularly, plaintiffs sued under the Uniform Declaratory Judgment Act (“UDJA”) for a declaration that the deer are private property and for further declaration under the Administrative Procedures Act that TPWD’s emergency rules related to the testing violated due process. Held:  The appellate court affirmed the district court’s grant of pleas to the jurisdiction for TPWD (meaning sovereign immunity applies) and TPWD officials, granted summary judgment to TPWD, and also awarded attorneys fees to TPWD under the act.  The opinion includes discussion of the broad powers of TPWD over wildlife, historic development of wildlife ownership (including common law), the public trust doctrine, and the award of attorney’s fees under the UDJA

 

Genssler  v. Harris County, 584 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010)

 

No Evidence of Alter Ego Theory for Personal Liability and Affirmation of Receiver's Appointment in Contamination/Non-Compliance Context:  This case relates to unauthorized discharges of waste into state water (Vince Bayou) in violation of Tex. Water Code Ann. Sec. 26.121 (a) (prohibiting such unauthorized discharges).  The trial court issued injunctions against several business entities and an individual (on an alter ego theory) prohibiting the discharges and requiring cleanup/remediation, as well as appointing a receiver to seize and utilize assets of the defendants. Held: On appeal, the appellate court held that the district court abused its discretion by appointing the receiver over the individual's assets, finding no basis of proof for the alter ego theory/standard for imposing individual liability.  The court otherwise affirmed the trial court's appointment of the receiver over the business entities.

 

Anderson Mill Municipal Utility Dist. v. Robbins, 584 S.W.3d 463 (Tex. App.—Austin 2005)

 

Water Code Provision Mandates Municipal Utility District’s Award of Attorney’s Fees: Municipal Utility District (“MUD”) sued homeowners for alleged violations of recorded deed restrictions/restrictive covenants related to the size of a travel trailer and a structure to house it in a Williamson County subdivision. Held: The appellate court affirmed the district court’s judgement regarding violations of restrictions.  However, the appellate court reversed the lower court’s award of only a portion of the MUD’s attorney’s fees and rendered judgment awarding the MUD all of its attorney’s fees.  The court based such award on mandatory language in Tex. Water Code sec. 54.237 (c), which states that a MUD “shall be entitled to recover its costs and reasonable attorney’s fees when a [MUD] is the prevailing party in litigation…to enforce a restriction.”

 

Lower Valley Water Dist. v. Danny Sander Construction, Inc., 587 S.W.3d 823 (Tex. App.—El Paso 2019)

 

District Not Immune from Suit:  The contractor sued the governmental district (“District”) to recover costs related to a contract to construct water lines and other improvements.  The trial court denied the District’s plea to the jurisdiction.  The District argued that it was immune from suit because the expenses the contractor sought related to a change order conditioned on approval of Texas Water Development Board funding (which the Board denied); whereas, the contractor argued the expenses at issue related to the District causing a delay. Held: The appellate court affirmed the lower court’s denial of the District’s plea.