Brushy Creek Mun. Utility Dist. v. Texas Water Com'n
| Decision Date | 02 March 1994 |
| Docket Number | No. 3-93-136-CV,3-93-136-CV |
| Citation | 887 S.W.2d 68 |
| Parties | BRUSHY CREEK MUNICIPAL UTILITY DISTRICT, Appellee, v. TEXAS WATER COMMISSION, et al., Appellants. |
| Court | Texas Court of Appeals |
Barbara Day, Butler, Porter, Gay & Day, Austin, for appellant.
Dan Morales, Atty. Gen., Susan D. Bergen, Asst. Atty. Gen., Austin, for appellee TX Water Com'n.
Ronald J. Freeman, Law Offices of Ronald J. Freeman, Austin, for appellee Highland Management, Inc., Hy-Land Joint Venture, Hy-Land North Joint Venture and First Hotel Investments Corp.
Before POWERS, JONES and KIDD, JJ.
Brushy Creek Municipal Utility District sued the Texas Water Commission and the City of Round Rock for judicial review of the Commission's final order in a contested case. Other parties intervened. 1 The district court affirmed the agency order and the District appeals from the resulting judgment. Holding the Commission had no jurisdiction of the controversy, we will reverse the agency order and the district-court judgment affirming the order; and, rendering the judgment we believe the district court should have rendered, we will order the cause remanded to the district court for further remand to the Commission with instructions that the cause be dismissed for want of jurisdiction. See Texas Water Code Ann. § 5.351 (West 1988) (the "Code"); Administrative Procedure Act, Tex.Gov't Code Ann. §§ 2001.001-.902 (West 1994) ("APA"); 2 Tex.R.App.P. 80(b).
The City of Round Rock obtains from the Brazos River Authority a supply of water that the City, in turn, sells and distributes to its inhabitants. The City also furnishes such water to the District under a contract made between them in 1986. In their contract, the City agreed to furnish the water for a twenty-year period and the District agreed to pay for the water according to fees and charges fixed in the contract. Wishing to be relieved of the contract fees and charges, the City in 1991 initiated in the Commission a contested case, requesting that the agency revise the contract by substituting rates fixed by the Commission for the fees and charges stated in the contract. The Commission granted such relief in the final order we now review. The District sued for judicial review of the order, contending among other things that the Commission had no power take such action.
The Commission claims under two statutes a power to revise the contract fees and charges and to substitute official rates fixed by the agency. The two statutes are sections 11.036 and 12.013 of the Code. They provide as follows:
§ 11.036. Conserved or Stored Water: Supply Contract
(a) A person, association of persons, corporation, or water improvement or irrigation district having in possession and control any storm water, floodwater, or rainwater that is conserved or stored (b) The price and terms of the contract shall be just and reasonable and without discrimination, and the contract is subject to the same revision and control as provided in this code for other water rates and charges. If any person uses the stored or conserved water without first entering into a contract with the party that conserved or stored it, the user shall pay for the use at a rate determined by the commission to be just and reasonable, subject to court review as in other cases.
as authorized by this chapter may contract to supply the water to any person, association of persons, corporation, or water improvement or irrigation district having the right to acquire use of the water.
Code § 11.036 (West 1988) (emphasis added).
(a) The commission shall fix reasonable rates for the furnishing of raw or treated water for any purpose mentioned in Chapter 11 or 12 of this code. 3
(b) The term "political subdivision" when used in this section means incorporated cities, towns or villages, counties, river authorities, water districts, and other special purpose districts.
(c) The commission in reviewing and fixing reasonable rates for furnishing water under this section may use any reasonable basis for fixing rates as may be determined by the commission to be appropriate under the circumstances of the case being reviewed; provided, however, the commission may not fix a rate which a political subdivision may charge for furnishing water which is less than the amount required to meet the debt service and bond coverage requirements of that political subdivision's outstanding debt.
(d) The commission's jurisdiction under this section relating to incorporated cities, towns, or villages shall be limited to water furnished by such city, town, or village to another political subdivision on a wholesale basis.
Code § 12.013 (West 1988) (emphasis added).
The District contends the two statutes, properly construed, vest in the Commission a power to fix water rates only when two conditions concur: (1) the seller is an appropriator of the water he sells; and (2) a purchaser complains to the Commission that the seller has denied him available water, that he is entitled to receive, at a price that is just, reasonable, and nondiscriminatory. It is undisputed that the City is not an appropriator of the water it sells; and, of course, it is also undisputed that the second condition has not been met. The Commission, the City, and the intervenors deny that such is a proper construction of sections 11.036 and 12.013.
We may refer in the beginning to the rules that govern our consideration as we attempt to assign the legally correct meaning to sections 11.036 and 12.013. The first is a rule of substantive law: an administrative agency, such as the Commission, has no inherent power; rather, an agency possesses only the powers delegated to it by the legislature in clear and unmistakable terms, unaided by implications. See Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137 (). And we must discern the legislature's intent from a general view of the whole enactment, then construe any questioned part of the statute so as to give effect to the legislative purpose. We are not responsible for omissions in legislation; our duty and power extends only to giving a fair and true interpretation of the statutory language, which means an interpretation that is not forced, exaggerated, or strained. The meaning settled And because the statutes in question are found in the Water Code, first enacted in 1971, other rules of statutory construction suggest themselves. We should consider at all times the old law, the evil, and the remedy. Tex.Gov't Code Ann. § 312.005 (West 1988); see also Citizens Bank of Bryan v. First State Bank, 580 S.W.2d 344, 348 (Tex.1979). We must interpret sections 11.036 and 12.013 in context so that legal and harmonious effect is allowed all parts of the Code; and, in that regard, we are invited to examine former statutory provisions on the same subject. Tex.Gov't Code Ann. §§ 311.011(a), .023(4) (West 1988).
upon must be one suggested by the statutory language and a meaning that the language will fairly sanction and clearly sustain. Id.
Other rules of construction are of particular importance in the present case because sections 11.036 and 12.013 existed as statutes before their revision and incorporation into the Code in 1971. The revision was merely a formal revision; it was not intended to work a substantive change in the legal effect of any statute. See generally Moulton A. Goodrum, Jr. & William H. Gordon, Jr., Comment, Substantive Law Revision in Texas, 37 Tex.L.Rev. 740 (1959). Indeed, the legislature expressly declared its intention in section 1.001 of the Code: "This restatement shall not in any way make any changes in the substantive laws of the State of Texas." Code § 1.001(c) (West 1988) (emphasis added). This statement simply augments the presumption that would ordinarily prevail. "A statute incorporated into a code is presumed to be incorporated without change even though it is reworded and rephrased and in the organization of the code its original sections are separated." Norman J. Singer, 1A Sutherland Statutory Construction § 28, at 481 (4th ed. 1985). The presumption extends even to the pre-code construction placed upon the incorporated statute. American Nat'l Life Ins. Co. of Tex. v. Montgomery, 640 S.W.2d 346, 351 (Tex.App.--Beaumont 1982, writ ref'd n.r.e.).
The applicability of these various rules of construction will become evident in our discussion and we need not cite them again.
The Commission, the City, and the intervenors believe section 12.013 evidences a legislative grant to the Commission of a complete and independent power to fix rates within the limits set therein. They believe, moreover, that section 12.013 is the exclusive object the legislature had in mind when it provided in section 11.036(b) that contracts for the supply of stored water to others are "subject to the same revision and control as provided in this code for other water rates and charges." This view is tenable at first glance, perhaps, because section 12.013 is found in a separate chapter of the Code. This disjunction did not always exist, as discussed hereafter. For the present, however, we focus our attention on section 11.036.
Subsection (a) of section 11.036 restricts the scope of the statute in two respects. First, the scope of the section is limited to "storm water, floodwater, or rainwater" that has been conserved or stored. This means that no other category of water, such as water from artisan wells and water subject to riparian claims, is included within the section even if the water happens to be "conserved or stored." See generally Wells A. Hutchins, The Texas Law of Water Rights 163-69, 396-99 (1961). Next, section 11.036 restricts itself to the included categories of water when these are reduced to storage "as authorized by this chapter." This means that...
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