Clear Creek Basin Authority v. City of Houston, 17233
| Decision Date | 05 October 1978 |
| Docket Number | No. 17233,17233 |
| Citation | 573 S.W.2d 839 |
| Parties | CLEAR CREEK BASIN AUTHORITY, Appellant, v. The CITY OF HOUSTON, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Kronzer, Abraham & Watkins, Michol O'Connor, Houston, for appellant.
Fulbright & Jaworski, David J. Beck, Robert M. Collie, City Atty., John L. Hill, Atty. Gen., Troy Webb, Houston, for appellee.
This is an appeal from a summary judgment sustaining the City of Houston's contention that the Clear Creek Basin Authority has no legal right to obtain injunctive relief or recover statutory penalties based on alleged violations of the Texas Water Code, Chapter 26, pp. 174, et seq.
This is a suit wherein the plaintiff, Clear Creek Basin Authority, seeks to recover penalties and injunctive relief because of alleged violations by the City of Houston of the Texas Water Code and certain waste control orders issued by the Texas Water Quality Board to the City. The City of Houston filed a motion for summary judgment asserting certain propositions of law, including (1) (2) that as a matter of law the plaintiff cannot obtain injunctive relief or recover statutory penalties based upon alleged violations of the Texas Water Code when the violations occurred outside the jurisdiction or geographical boundaries of the Clear Creek Basin Authority; (3) .
The Clear Creek Basin Authority filed an answer to the motion asserting (1) "the only issue before this court is a question of law: can a downstream victim of pollution sue an upstream polluter; (2) the city has admitted that its sewer plants exceed the parameters of its permits on a regular basis; (3) the city's effluent is flushed into Clear Lake on a daily basis and cause pollution there."
In the judgment the trial court recites as follows:
". . . counsel for Clear Creek Basin Authority having represented in open court to the court that the Clear Creek Basin Authority desired to withdraw from its First Amended Original Petition all claims and causes of action asserted against The City of Houston predicated on the theory of common law nuisance and desired to proceed only against The City of Houston on the basis of its claims and causes of action asserted against The City of Houston under Ch. 26 of the Texas Water Code, and defendant, The City of Houston, having represented to the Court that should this matter be reversed and remanded for a new trial, it would have no objection to the Clear Creek Basin Authority amending its pleadings to reassert the claims and causes of action asserted against The City of Houston based on the common law nuisance theory, and The City of Houston having further represented to the Court that it desired to withdraw from consideration by the court paragraphs I and III of its motion for summary judgment and to proceed to hearing only on paragraph II of its motion for summary judgment, which complains that the Clear Creek Basin Authority is not entitled to sue for or obtain injunctive relief or penalties against the City of Houston under Chapter 26 of the Texas Water Code for violations which occur outside of the jurisdictional or geographical boundaries of the Clear Creek Basin Authority, and the Clear Creek Basin Authority having proceeded to file its response and affidavits in opposition to the motion for summary judgment of the City of Houston, and the City having agreed to waive any objections to the late filing of said response and affidavits, and the court, after considering the motion for summary judgment, the summary judgment evidence, the pleadings on file herein, and the representations, stipulations, and arguments of counsel, and it being the opinion of the court that the motion for summary judgment of the City of Houston should be in all things granted. . . ."
The Clear Creek Basin Authority asserts that the trial court erred in granting the motion for summary judgment because the City of Houston has admitted that six of its plants are located within the geographical boundaries of the Basin Authority and that these plants have violated the terms of their Water Quality permits.
The City of Houston asserts that prior to the hearing on the City's motion...
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