Lloyd A. Fry Roofing Co. v. State, 8441
| Decision Date | 31 October 1974 |
| Docket Number | No. 8441,8441 |
| Citation | 516 S.W.2d 430 |
| Parties | LLOYD A. FRY ROOFING COMPANY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant.
John L. Hill, Atty. Gen. of Texas, Troy C. Webb, Asst. Atty. Gen., Dallas, for appellee.
Appellant Lloyd A. Fry Roofing Company appeals from an interlocutory order in the form of a mandatory injunction ordering the construction of stack sampling equipment on appellant's vent stacks as requested by the Texas Air Control Board. Reversed and rendered dismissing the motion for interlocutory order.
Lloyd A. Fry Roofing Company is a manufacturer of asphalt roofing shingles. Mists, fumes, and vapors are emitted from two vent or smokestacks in Fry's Lubbock, Texas plant. Such emissions are 'air contaminants' as defined by the Texas Clean Air Act. Vernon's Ann.Civ.St. art. 4477--5, § 1.03. On November 27, 1972, the Texas Air Control Board first became aware that air contaminants were being emitted from appellant's plant. In response to a request for admissions in the cause before us, Fry admitted that on or about November 27, 1972, the Texas Air Control Board requested Lloyd A. Fry Roofing Company to construct stack sampling facilities on the vent stacks in question. The State does not allege that any hearing was held by the Board or that the Board made any determination or order pursuant to Sec. 3.12 of the Act. Fry did not install the requested stack sampling facilities. The Texas Air Control Board, through the Attorney General, then filed an action in the name of the State of Texas for injunctive relief and statutory penalties for alleged violations of the Texas Clean Air Act in the District Court of Lubbock County under Sec. 4.02 of the Act. During the pendency of this suit, the State moved for an interlocutory order requiring Fry to construct stack sampling facilities costing from $10,000 to $15,000 on the two stacks at the Lubbock plant. The trial court denied Fry's request for a jury, heard evidence on the feasibility of stack sampling, found that stack sampling was feasible, and entered the requested interlocutory order. It is from this interlocutory order that Fry appeals.
Fry contends that the District Court of Lubbock County did not have jurisdiction to enter the interlocutory order because the Texas Air Control Board had not exercised its primary jurisdiction. The State contends that the court had jurisdiction because the Board's primary administrative jurisdiction had been exhausted by the request for stack sampling facilities. The State further contends that Fry is precluded from challenging the propriety of the Board's request since it did not seek judicial review of the request by appealing to the District Court of Travis County within thirty days after the request.
Article 4477--5, V.A.C.S., provides a comprehensive statutory scheme for implementing pollution control through the creation of an administrative agency, the Texas Air Control Board. The Board is empowered to make rules and regulations consistent with the Act and is expressly authorized to hold hearings and make findings of fact and decisions with respect to administering provisions of the Act or the rules, regulations, orders or other actions of the Board. Portions of relevant sections of the Act are as follows:
'Sec. 3.10(f) The board is authorized to prescribe the sampling methods and procedures which shall be used in determining violations of and compliance with the rules, regulations, variances, and other orders of the board. . . .'
'(1) encourage voluntary cooperation by persons, or affected groups in the restoration and preservation of the purity of the air resources within this state;'
'(b) The petition must be filed within thirty days after the date of the board's action, or, in case of a ruling, order or decision, within thirty days after its effective date.'
Section 4.02 on which the State relied in filing this cause provides that whenever it appears that a person is violating 'any provision of this Act or of any rule, regulation, variance or other order of this board,' the board may bring suit in district court for injunctive relief and/or civil penalties.
Pursuant to its authority under the Act, the Board made Regulation I, Sec. IV--D which reads in part as follows:
'D. Control of Emissions by Stack Sampling ...
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...for initial action must be determined by that agency before it may be reviewed by a court. Lloyd A. Fry Roofing Co. v. State, 516 S.W.2d 430, 432 (Tex.Civ.App.--Amarillo 1974, writ ref'd n.r.e.). When the legislature has provided a mandatory method of review by an administrative agency, a p......
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