Hill v. Texas Water Quality Bd.

• Decision Date: 12 July 1978
• Docket Number: No. 12752,12752
• Citation: 568 S.W.2d 738
• Parties: Honorable John L. HILL, Attorney General of Texas, et al., Appellants, v. TEXAS WATER QUALITY BOARD, Appellee.
• Court: Texas Court of Appeals

Page 738

568 S.W.2d 738

Honorable John L. HILL, Attorney General of Texas, et al., Appellants, v. TEXAS WATER QUALITY BOARD, Appellee.

No. 12752.

Court of Civil Appeals of Texas, Austin.

July 12, 1978.

Rehearing Denied July 26, 1978.

John L. Hill, Atty. Gen., David M. Kendall, Jr. and Troy C. Webb, Asst. Attys. Gen., Austin, for appellants.

James W. Wilson, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, Special Counsel, for appellee.

PHILLIPS, Chief Justice.

The Texas Water Quality Board ¹ adopted certain rules and regulations designed to protect the water of the Edwards Underground Reservoir; however, the Attorney General of Texas disagreed with these rules and brought suit in the district court of Travis County to set them aside. The trial court sustained the Board's contention that the Attorney General lacked standing to bring the suit and it was dismissed.

We affirm this judgment.

The suit was brought under the authority of the Texas Administrative Procedure Act, Article 6252-13a § 12, to set aside the Board's orders as invalid.

The Attorney General conceives his role to be the lawfully constituted guardian of the public interest, which authorizes him, under the common law adopted by this state in its early history, ² to seek redress against a state agency when he believes its action to be wrong or inimical to the public interest.

The Board, on the other hand, contends that what authority the Attorney General has is derived from the Texas Constitution and from the statutes of this state and that under the law the Attorney General is the Board's lawyer, is committed to defend the Board's orders, and that there is nothing in the Constitution or statutes which expressly or impliedly authorizes him to bring this suit against the State.

It should be stated at the outset that the Attorney General's claim that he is seeking to set aside an "illegal" action of the Board refers to the manner in which the Board has exercised discretionary powers delegated to it by the Legislature and he seeks a declaration that the Board's orders were arbitrary and unreasonable. This is not a suit in which the Attorney General seeks to enjoin a state official from acting outside the scope of his lawful authority.

Although the Attorney General, in his brief, refers to the " unconstitutional" action of the Board, the only way that the Board's action could be remotely suspect under the Constitution of either the State or the Federal government would be a violation of equal protection due, as alleged by the Attorney General, to its arbitrary, capricious, and unreasonable action. This contention must fail as equal protection is a constitutional guaranty afforded only to "persons " and the State does not have standing to raise the claim. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

A suit against a state agency which is exercising governmental functions only is a suit against the State. Department of Public Safety v. Great Southwest Warehouses, 352 S.W.2d 493 (Tex.Civ.App.1962, writ ref'd n. r. e.).

The facts before us are these: the orders in question concern the Edwards Underground Reservoir, a hydrologically independent water-bearing limestone formation found in Kinney, Uvalde, Medina, Bexar, Kendall, Comal and Hays Counties, respectively. Substantially all of the water which enters the reservoir enters where the limestone formation appears exposed at the ground surface and this surface is generally referred to as the "recharge zone." Certain activities on the "recharge zone" provide a source of pollution for the reservoir. In recognition of the pollution problems created by activity over the recharge zone, the Board entered its order No. 75-0128-20 regulating activities where the recharge zone appears in the seven counties referred to above. Later, the Board replaced this order with seven separate orders, one applying to each separate county where the recharge zone is found. The Attorney General seeks to set aside these orders on grounds that the orders significantly lessen the degree of control of pollution causing activity over the recharge zone, thus posing a threat of contamination of the reservoir which would be a hazard to those people dependent upon it for drinking purposes; that the orders are arbitrary, capricious, and unreasonable; and that by treating citizens similarly situated in a different manner, the order constitutes a denial of equal protection of the laws guaranteed by the Constitution of the United States and of the State of Texas.

The Attorney General seeks to justify his position, in part, by pointing out that he authorized the Board to employ outside counsel to represent it in this cause of action. ³

Bexar County intervened as a plaintiff seeking to set aside the actions of the Board as did the City of San Antonio. The counties of Medina, Uvalde, and Kinney intervened on behalf of the Board. The Board filed pleas in abatement questioning, in effect, the standing of the Attorney General to bring this suit, and, as stated above, the trial court sustained the Board's plea, dismissed the cause of action brought by the Attorney General, and severed and consolidated into a single cause the suits brought by the City of San Antonio and Bexar County.

The Attorney General is before us on five points of error, briefed together, which, in effect, complain of the action of the court in holding that his suit is contrary to the constitutional and statutory provisions fixing the duties of that office.

In defense of his suit against the State, the Attorney General maintains that he is the chief legal officer of the State of Texas, an office originating in England where that office was under the duty of representing the Crown in all legal matters in which it might be concerned. He then cites authority ⁴ for the proposition that it is generally held that, in addition to the powers conferred and duties imposed upon him by statute, he is clothed and charged with all the common law powers and duties pertaining to his office as well, except insofar as they have been expressly restricted and modified by statute or the State Constitution. These powers would include authority as the public interest may, from time to time, require, to institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the laws of the state, the preservation of order and the protection of public rights. He then cites authority which he contends establishes his common law powers in Texas. ⁵

We do not deem it necessary for the purposes of this opinion to further elaborate on the Texas cases cited by the Attorney General which allegedly suggest certain common law powers inherent in that office. Suffice to say that none of them concern the question before us. Nor will we discuss the out-of-state authority cited as the factors controlling these cases and other writings, whether because of the facts involved or the statutes or constitutional provisions relative thereto, they are dissimilar to those controlling here and are readily distinguishable.

Both parties hereto agree that...