Pecos Cnty. v. Fort Stockton Holdings, L.P.

• Decision Date: 30 July 2014
• Docket Number: No. 08–12–00343–CV.,08–12–00343–CV.
• Citation: 457 S.W.3d 451
• Parties: PECOS COUNTY, City of Fort Stockton, Pecos County Water Control and Improvement District No. 1, Middle Pecos Groundwater Conservation District and its Directors, and Brewster County Groundwater Conservation District, Appellants, v. FORT STOCKTON HOLDINGS, L.P., Appellee.
• Court: Texas Court of Appeals

457 S.W.3d 451

PECOS COUNTY, City of Fort Stockton, Pecos County Water Control and Improvement District No. 1, Middle Pecos Groundwater Conservation District and its Directors, and Brewster County Groundwater Conservation District, Appellants

v.FORT STOCKTON HOLDINGS, L.P., Appellee.

No. 08–12–00343–CV.

Court of Appeals of Texas, El Paso.

July 30, 2014.

Edmond R. McCarthy Jr., Austin, for Appellee.

Michael Allan Gershon, Lloyd Gosselink Rochelle & Townsend, P.C., Andrew S. Miller, Kemp Smith, Austin, for Appellants.

Before McCLURE, C.J., RIVERA, and RODRIGUEZ, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

Pecos County, the City of Fort Stockton, Pecos County Water Control and Improvement District No. 1, Middle Pecos Groundwater Conservation District and its Directors, and Brewster County Groundwater Conservation District (collectively referred to as Appellants) have brought this interlocutory appeal to challenge an order denying their pleas to the jurisdiction.¹ See Tex. Civ.Prac. & Rem.Code Ann. § 51.014(8) (West Supp.2013). We affirm.

FACTUAL SUMMARY

Fort Stockton Holdings, L.P. (FSH) filed a permit application with the Middle Pecos Groundwater Conservation District (the District). The City of Fort Stockton, Pecos County, Brewster County Groundwater Conservation District, and the Pecos County Water Control and Improvement District No. 1 were admitted as parties to the hearing. On July 8, 2011, the District denied FSH's permit application after an evidentiary hearing. At FSH's request, the District issued findings of fact and conclusions of law. FSH subsequently filed a timely motion for rehearing but it was denied by operation of law.

To pursue an administrative appeal of the District's decision, FSH was required to file an original petition with the Pecos County District Clerk no later than the 60th day after the motion for rehearing was denied by operation of law. See Tex. Water Code Ann. § 36.413(b) (West 2008). It is undisputed that the due date fell on December 25, 2011, a Sunday. On December 21, 2011, FSH sent the original petition to the Pecos County District Clerk via Federal Express, but the District Clerk's Office was closed for official holidays on December 22 (Thursday), December 23 (Friday), and December 26 (Monday). Consequently, Federal Express did not deliver the petition until December 27, 2011. In an apparent effort to timely-file the petition pursuant to Tex.R.Civ.P. 5 (the Mailbox Rule), FSH deposited a duplicate original petition in the U.S. mail to the District Clerk on December 22, 2011, but it was not received and filed until December 27, 2011.

The District filed a plea to the jurisdiction asserting that FSH did not timely file the petition, and therefore, the trial court lacked jurisdiction to hear the case. Pecos County, the City of Fort Stockton, Pecos County Water Control and Improvement District No. 1, and Brewster County Groundwater Conservation District intervened in the suit and filed pleas to the jurisdiction raising the same issues as the District and/or adopting the District's plea to the jurisdiction. Following a hearing, the trial court denied the pleas to the jurisdiction.

JURISDICTION

In their sole issue, Appellants contend that the trial court erred by denying their pleas to the jurisdiction because FSH did not timely file its petition such that the District's immunity from suit is not waived.

Standard of Review

A plea to the jurisdiction is a dilatory plea by which a party challenges the court's authority to determine the subject matter of the action. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004) ; City of El Paso v. Collins, 440 S.W.3d 879, 883 (Tex.App.-El Paso 2013, no pet. h.). The plaintiff shoulders the burden of alleging facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001) ; Collins, 440 S.W.3d at 883. Whether a party has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction and whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction are questions of law which we review de novo . Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) ; Collins, 440 S.W.3d at 883. Here, the jurisdictional facts are undisputed.

Governmental Immunity

The District is a political subdivision of the State of Texas created under Article XVI, Section 59 of the Texas Constitution. See Tex. Const. art. XVI, § 59 ; Tex.Water Code Ann. §§ 36.001(1), 36.001(15), 36.011(a) (West 2008 and Supp.2013); Act of May 28, 1999, 76th Leg., R.S., ch. 1331, 1999 Tex.Gen.Laws 4536 (codified in Tex.Spec.Dist.Loc.Laws Code Chapter 8851 (West Pamph.2013)). Sovereign immunity protects the State from lawsuits for money damages. Reata Construction Corporation v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006) ; Texas Natural Resource Conservation Commission v. IT–Davy, 74 S.W.3d 849, 853 (Tex.2002). Political subdivisions of the state, such as the District, are entitled to this same immunity—referred to as governmental immunity—unless it has been waived.² Reata, 197 S.W.3d at 374.

A statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. Tex.Gov't Code Ann. § 311.034 (West 2013). Statutory prerequisites to a suit are jurisdictional requirements. Id. A suit against a governmental entity can be brought only in the manner indicated by the applicable statute. Texas Department of Transportation v. York,

284 S.W.3d 844, 846 (Tex.2009). When construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining immunity. York, 284 S.W.3d at 846.

The Administrative Appeal Process

An applicant may administratively appeal a decision of the board³ on a permit or permit amendment application by requesting written findings and conclusions or a rehearing before the board not later than the 20th day after the date of the board's decision. Tex.Water Code Ann. § 36.412(a). When the board receives a timely written request, it is required to make written findings and conclusions regarding its decision. Tex.Water Code Ann. § 36.412(b). The board must provide certified copies of the findings and conclusions to the person who requested them, and to each person who provided comments or each designated party, not later than the 35th day after the date the board receives the request. Id. A person who receives a certified copy of the findings and conclusions from the board may request a rehearing not later than the 20th day after the date the board issues the findings and conclusions. Id. The rehearing must be filed in the district office and state the grounds for the request. Tex.Water Code Ann. § 36.412(c). The failure of the board to rule on the request for a rehearing before the 91st day after the date the request for a rehearing is submitted constitutes a denial of the request. Tex.Water Code Ann. § 36.412(e). It is undisputed that FSH timely filed its request for findings and conclusions as well as its request for rehearing.

A decision by the board on a permit or permit amendment application is final if the board denies the request for rehearing. Tex.Water Code Ann. § 36.413(a)(2). An applicant or a party to a contested hearing may file suit against the district under Section 36.251 to appeal a decision on a permit or permit amendment application not later than the 60th day after the date on which the decision becomes final. Tex.Water Code Ann. § 36.413(b). FSH filed its request for a rehearing on July 28, 2011 and the District did not grant or deny the request before the 91st day after the request was filed. The request for rehearing was denied by operation of law pursuant to Section 36.412(e) on October 26, 2011. Consequently, the District's decision became final on that same date and FSH's suit was due to be filed “not later than the 60th day” after October 26, 2011. The parties agree that the due date for filing the suit was December 25, 2011, but disagree whether the time for filing the suit was extended to December 27, 2011 pursuant to Section 311.014 of the Texas Government Code and Rule 4 of the Texas Rules of Civil Procedure.

Section 311.014 and Rule 4

Section 311.014 of the Government Code, titled “Computation of Time” provides:

(a) In computing a period of days, the first day is excluded and the last day is included.

(b) If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day that is not a Saturday, Sunday, or legal holiday.

Tex.Gov't Code Ann. § 311.014(a), (b). Rule 4 of the Texas Rules of Civil Procedure provides:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall not be counted for any purpose in any time period of five days or less in these rules, except that Saturdays, Sundays, and legal holidays shall be counted for purpose of the three-day periods in Rules 21 and 21a, extending other periods by three days when service is made by mail.

If either Section 311.014 or Rule 4 applies, the due date for the filing of FSH's petition against the District was extended to Tuesday, December 27, 2011. Appellants contend that Section 311.014 and Rule 4 do not apply. We begin our analysis by considering whether Section 311.014 of the Code Construction Act applies to the Texas Water Code.

Applicability of the Code Construction Act

Appellants first argue that its immunity from judicial review of its decisions on permit...