City of Manvel v. Texas Dept. of Health Resources

• Decision Date: 15 August 1978
• Docket Number: No. 8132,8132
• Citation: 573 S.W.2d 825
• Parties: CITY OF MANVEL, Appellant, v. TEXAS DEPARTMENT OF HEALTH RESOURCES and City of Pearland, Texas, Appellees.
• Court: Texas Court of Appeals

Page 825

573 S.W.2d 825

CITY OF MANVEL, Appellant, v. TEXAS DEPARTMENT OF HEALTH RESOURCES and City of Pearland Texas, Appellees.

No. 8132.

Court of Civil Appeals of Texas, Beaumont.

Aug. 15, 1978.

Rehearing Denied Sept. 7, 1978.

Paul Cosselink, Asst. Atty. Gen., Austin, Eugene J. Pitman, Houston, for appellant.

Sam Graham, Austin, Sears and Burns, C. Charles Dippel, Houston, for appellees.

CLAYTON, Justice.

Our prior opinion in this cause is withdrawn, and this opinion is substituted in lieu thereof.

Appellant, City of Manvel, filed suit in the district court of Travis County against the Texas Department of Health Resources (hereinafter referred to as Department) and the City of Pearland, appealing from the administrative order of the Department granting the City of Pearland a permit to operate a sanitary landfill within the corporate limits of Manvel, such proceedings for the permit being brought pursuant to the terms of Tex.Rev.Civ.Stat.Ann. art. 4477-7, § 9 (Supp.1978) (the Solid Waste Disposal Act) and Art. 6252-13a, § 19 (Supp.1978) (the Administrative Procedure and Texas Register Act). The trial court rendered its judgment that appellant take nothing and awarded costs to appellees, from which judgment appellant has perfected this appeal.

The City of Pearland's application for the landfill site was filed in July of 1975. On September 2, 1975, the Department furnished copies of the application to the City of Manvel. The City filed its response to the application on September 26, 1975. The hearing on the application was held on April 6, 1976.

The trial court tried this case solely upon the record of the proceedings in the hearing conducted by the Department pursuant to Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(d)(3) (Supp.1978). No additional evidence was offered or received by the trial court.

In appellant's first and second points complaint is made that the Department's order in granting the permit to Pearland was "made upon unlawful procedure, in violation of Department's rules" and "the procedure followed by Department denied appellant notice and reasonable opportunity to defend against the application." Appellant's entire argument under these two points is directed to the failure of the Department to follow and comply with the provisions of its adopted regulations styled "Municipal Solid Waste Management Regulations." A copy of such regulations was attached to appellant's brief as Appendix A. These regulations were not introduced into evidence, and they do not appear anywhere in the record. We agree with the Department's argument, as stated in its brief, that "(n)either the trial court nor this Court could take judicial notice of any rules of the Department. Such rules must be proved as any other evidence in order to be admissible." See Imperial American Resources Fund, Inc. v. Railroad Commission of Texas, 557 S.W.2d 280, 288 (Tex.1977); Byrd v. Trevino-Bermea, 366 S.W.2d 632, 635 (Tex.Civ.App. Austin 1963, no writ). Appellant has offered no reason or circumstances why this rule does not apply to the regulations involved in this case. Such regulations not appearing in the record and since we cannot take judicial notice of such regulations, they are completely foreign to the record and cannot be considered. Nixon v. Royal Coach Inn of Houston, 464 S.W.2d 900, 901 (Tex.Civ.App. Houston (14th Dist.) 1971, no writ); Henslee v. State, 375 S.W.2d 474, 476 (Tex.Civ.App. Dallas 1963, writ ref'd n. r. e.); Freeman v. Anderson, 119 S.W.2d 1081, 1083 (Tex.Civ.App. Waco 1938, no writ); Yeager v. Bradley, 246 S.W. 688, 690 (Tex.Civ.App. Austin 1922) writ ref'd per curiam, 114 Tex. 581, 278 S.W. 1115 (1923). There is no competent evidence in the record of the contents of any rules or regulations of the Department concerning the granting of a permit to operate a sanitary landfill.

This is a substantial evidence rule case, and when judicial review of an administrative action is governed by the substantial evidence rule, the action of the administrative body is presumed to be legal and valid, and the burden is on the party appealing from the order to show that the order is not reasonably supported by substantial evidence. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752, 758 (Tex.1966); Cusson v. Firemen's and Policemen's Civil Service Commission of San Antonio, 524 S.W.2d 88, 90 (Tex.Civ.App. San Antonio 1975, no writ); McCall v. Presley, 512 S.W.2d 693, 695 (Tex.Civ.App. Beaumont 1974, writ ref'd n. r. e.).

The burden was upon the appellant to show the "unlawful procedure" of which it complains, i. e., failure to comply with the provisions of such regulations, and this burden could not be discharged unless the rules and regulations of the Department were introduced into evidence. The order of the Department is presumed to be valid. Appellant, who challenged the order, had the burden of producing evidence establishing the invalidity of the order. See Herron v. City of Abilene, 528 S.W.2d 349 (Tex.Civ.App. Eastland 1975, writ ref'd). Appellant failed to discharge such burden. Points one and two are overruled.

Appellant's third point complains of error in "Rendering judgment that it take nothing upon its appeal, as the permit issued was in violation of a valid ordinance of appellant, the City of Manvel." It is undisputed that the site, the subject of the application for sanitary landfill operation, lies within the corporate limits of appellant. It is also undisputed that appellant enacted an ordinance in December 1973 which expressly provides:

"No one shall maintain, operate, develop any garbage dump, sanitary landfill operation for the disposal of garbage . . . or any other facility for the disposal of solid waste matter of any type within the city limits of the City of Manvel, Texas, without first obtaining a permit therefor from the City of Manvel. . . ."

No permit was sought by Pearland, and none was granted to it.

Tex.Rev.Civ.Stat.Ann. art. 4477-7 (Supp.1978), the Solid Waste Disposal Act is a comprehensive enactment setting forth a regulatory scheme for solid waste disposal. The Act authorizes the Department to regulate the disposal of municipal solid waste and enables the Department to require and issue permits authorizing and governing the operation and maintenance of sites used for disposal of such wastes.

Sec. 6a of art. 4477-7 provides:

"No incorporated city or town may abolish or restrict the use or operation of a solid waste disposal site . . . within its limits . . . if the solid waste disposal site . . .:

(1) was in existence at the time the city or town was incorporated or was in existence at the time the city or town annexed the area where it is located; and

(2) is operated in substantial compliance with all applicable state and county regulations."

Assuming, without deciding, the validity of Manvel's ordinance, the record reflects a finding for the proposed grant of the permit to Pearland that:

"Use of this existing site for brush demolition purposes began prior to the annexation of the property by the City of Manvel, Texas. Inspection showed the site was essentially in compliance with rules and regulations of the Texas Department of Health Resources."

and that

"An original permit application was made by the City of Pearland, Texas to the Texas Department of Health Resources . . . for permission to continue operation of a Type 1 municipal solid waste site in the City of Manvel, Texas."

In its attempt to show that its ordinance complied with the terms of Tex.Rev.Civ.Stat.Ann. art. 4477-7, § 6a (Supp.1978), appellant states in its brief that "It is established by the testimony of the witnesses (naming five witnesses and referring to a letter App. A to the Trial...