Charles G. Hooks, Jr. and Irma Hooks v. Texas Department of Water Resources

,/ \‘ IN THE SUPREME COURT OF TEXAS No. B-9733 CHARLES G. HOOKS, JR., et ux., PETITIONERS V. FROM TRAVIS COUNTY TEXAS DEPARTMENT OF WATER RESOURCES, et al., THIRD DISTRICT >-<><>-<>-<>-<>-<>-<>~<>-<>-< RESPONDENTS This is an action by downstream riparian landowners contesting an order granting a waste discharge permit. Charles G. Hooks, Jr. and Irma Hooks appealed an order by the Texas Department of Water Resources which granted a waste discharge permit to George H. Musterman, Inc. The district court upheld the action of the Department. The court of civil appeals reversed and rendered judgment that the cause be dismissed holding that the Hooks lacked standing to contest the order of the Department. 602 S.W.2d 389 . We reverse the judgment of the court of civil appeals and remand the cause to that court for consideration of the merits. George H. Musterman, Inc. plans to develop a residential subdivision northwest of Houston in Harris County, Texas which will have an ultimate population of 7,500. Because there are no existing facilities in the area, Musterman plans to build a sewage treatment plant to process domestic waste from the subdivision. He applied for and was granted an effluent discharge permit by the Texas Department of Water Resources. The permit authorizes discharge of wastewater into’Willow Creek at an average daily rate of 750,000 gallons with a maximum discharge of 2,250,000 gallons per day. In its order granting the permit, the Department found that the effluent would have no significant effect on water quality in Willow Creek or groundwater in the area, nor would fish or wildlife in the area be endangered. Willow Creek is a meandering stream having intermittent flow which winds through a heavily wooded area. The creek is bone-dry on many occasions and primarily carries storm water. Irma and Charles G. Hooks, Jr. own and reside on a tract of land adjacent to and downstream from the proposed sewage treatment plant. Willow Creek flows through the Hooks' tract and has been used for watering their stock. The Hooks protested Musterman's application for a waste discharge permit alleging that they owned riparian land downstream from the point of discharge and that they would be persons affected if the permit were issued. The hearing examiner designated the Hooks parties "who may be affected by the action that may be taken as a result of the hearing." gee TEX. WATER CODE ANN. § 26.022. At the hearing before the Department of Water Resources, the Hooks objected to the admission of evidence, the action taken by the hearing examiner, the sufficiency of the findings of fact, and the legal status of Musterman. Following the hearing, the Department issued an order granting the permit. The Hooks appealed the Department's order to district court. After a hearing, the court affirmed the order granting the permit. From this judgment, the Hooks perfected an appeal to the court of civil appeals complaining of the admission of certain evidence, the sufficiency of the Department's findings of fact and conclusions of law, and Musterman's right to do business in Texas. The court of civil appeals rendered judgment that the cause be dismissed on the grounds that the district court lacked jurisdiction to consider the appeal because the Hooks lacked standing to contest the Department's order. The court of civil appeals raised the question of standing sua sponte. Standing was never raised, plead, briefed, argued, nor urged by the parties. It appeared for the first time in the opinion of the court of civil appeals. The court of civil appeals erred in holding that the Hooks lacked standing. Under the Texas Administrative Procedure and Texas Register Act (APA), TEX. REV. CIV. STAT. ANN. art. 6252-13a § 19(a),1 standing to appeal an order of an administrative agency requires that the case be contested and that the appellant be "aggrieved." Section 19(a) of the APA provides that "[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act." It further provides "[t]his section is cumulative of other means of redress available by statute." Ed. The Hooks appealed the order granting the waste discharge permit pursuant to the judicial review provisions of the Texas Water Code. Section 5.351(a), TEX. WATER CODE ANN., provides that "[a} person affected by a ruling, order, decision, or other act of the department may file a petition to review, set aside, modify, or suspend the act of the department." The judicial review provisions of the APA and the Water Code should be read in conjunction and harmony with each other. The terms "aggrieved" and "affected" are synonomous and both relate to the requirement that a person show a "justiciable interest.“ See City of San Antonio v. Texas Water Commission, 407 S.W.2d 752, 765 (Tex. 1966). The Hooks are riparian landowners on Willow Creek downstream from the discharge point of the proposed sewage treatment plant. The hearing examiner before the Department of Water Resources designated the Hooks as parties "who may be affected by the action that may be taken as a result of the hearing." The court of civil appeals states that they were "proper parties to participate in the permit hearing." The Department of Water Resources, in briefs [1] Statutory references are to Vernon's Texas Revised Civil Statutes Annotated. and at oral argument before this Court, concede that the Hooks are affected or aggrieved by the Department's order. If constructed, this facility will discharge wastewater through the Hooks' property at a rate of 750,000 to 2,250,000 gallons per day. Unquestionably, the Hooks will be affected by the Department's action. We hold that the Hooks have standing to appeal the order of the Department of Water Resources. We reverse the judgment of the court of civil appeals and a"! ento , Opinion delivered: February 11, 1981 THE SUPREME COURT OF TEXAS CHIEF JUSTICE PO BOX 12248 CAPITOL STATION CLERK JOE R GREENHILL AUSTlN‘ TEXAS 787“ GARSON R JACKSON JUSTICES EXECUIIVE ASS'T JACK POPE WILLIAM L. W1LLIS \r SEARS ‘ “GEE February 1 1 , 1 981 ADMINISTRATIVE ASS'T JAMES G DENTON CHARLES w BARROW ROBERT M CAMPBELL FRANKLIN s. SPEARS c. L RAY JAMIE P WALLACE MARY ANN DEFIBAUGH Mr. L. A. Greene, Jr., Atty 2602 Montrose Square Houston, Texas 77006 Mr. Brian E. Berwick, Atty Attorney Genera1's Office Environmenta1 Protection Division Supreme Court B1dg. Austin, Texas 78701 Mr. Ear1 L. Yeake1, III, Atty Kammerman, Yeake1 & Overstreet 1420 American Bank Tower Austin, Texas 78701 RE: B-9733: CHARLES G. HOOKS, JR. ET UX. vs. TEXAS DEPARTMENT OF WATER RESOURCES ET AL. Third Court of Civi1 AppeaIS No. 13,209 250th District Court of Travis County No. 281,885 Gent1emen: Today, the Supreme Court of Texas de1ivered an opInion in the above refeenced cause. The opinion by Justice Denton reversed the judgment of the Court of Civi1 Appea1s and remanded the cause to that court for further consideration of the merits. A copy of the enc1osed opinion is being maIIed to Justice Bob Smith, then sitting for the Third Court of Civi1 Appea1s, Judge Hume Cofer, then sitting for the 250th District Court and Travis County District C1erk, Mr. John Dickson. Very tru1y yours, GARSON R. JACKSON, C1erk Enc1. opinion Mary M-L, Wakef1e1d, C ef Deputy THE SUPREME COURT OF TEXAS CHIEF JUSTICE Po BOX 12243 CAPITOL STATION CLERK JOE R. GREENHILL AUSTIN TEXAS 787 u GARSON R. JACKSON lflflmAfiT JUSTICES EXEC . Lus JACKPOPE meUAMI.wn SE“ MCGEE FEbrua YIY 1 2 , 1 981 ADMINISTRATIVE ASS‘T “MES G DEMON MARY ANN DEFIBAUGH CHARLES W BARROW ROBERT M CAMPBELL FRANKLIN S. SPEARS C. L. RAY JAMES P WALLACE Mr. L. A. Greene, Jr., Atty 2602 Montrose Square Houston, Texas 77006 Mr. Brian E. Berwick, Atty Attorney Genera1's Office Environmenta1 Protection DiVision Supreme Court B1dg. Austin, Texas 78701 Mr. Ear1 L. Yeake1 III, Atty Kammerman, Yeake1 & Overstreet 1420 American Bank Tower Austin, Texas 78701 RE: 8—9733: CHARLES G. HOOKS, Jr. et ux vs. TEXAS DEPARTMENT OF WATER RESOURCES ET AL. Gent1emen: Enc1osed p1ease find a copy of the judgment of the Supreme Court of Texas in the above referenced cause as said judgment appears in the minutes of this Court under the date of February 11, 1981 This is the Judgment that wi11 issue in mandate form to the 1ower court if no motion for rehearing is fi1ed or if a f11ed motion for rehearing TS overru1ed. Very tru1y yours, GARSON R. JACKSON, C1erk Enc1' copy of Judgment THE SUPREME COURT OF TEXAS CHIEF PO BOX 12248 CAPITOL STATION JOE R. GREENHILL AUSTINy TEXAS 78711 GARSON R. JACKSON Wficifism” EXECUTIVE ASS'T SEARS MCGEE MarCh 2 , .1] WILLIAM 1" WILLIS JAMES G DENTlON .ADRHNISTRATIVE ASS’T CHARLES W BARROW MARY ANN DEFIBAUGH ROBERT M CAMPBELL FRANKLIN s. SPEARS c. L RAY JAMES P WALLACE Mrs. Margie Love, Clerk Third Court of Civil Appeals Supreme Court Building Austin, Texas 78701 RE: CHARLES G. HOOKS, JR. ET UX. vs. TEXAS DEPARTMENT OF WATER RESOURCES et al. No. B-9733 in the Supreme Court No. 13,209 in the THird Court of Civil Appeals Dear Mrs. Love: The judgment of the Supreme Court of Texas is now final in the above referenced cause. As Rule 507, Texas Rules of Civil Procedure, has been satisfied, we have issued the mandate as of this date. Enclosed with the mandate is a certified copy of our cost bill showing the charges and payments as reflected by the record for your use in settlement between the parties. Very truly yours, GARSON R. JACKSON, Clerk Mary M Wakefield Chief eputy Encl: mandate w/opinion cost bill CC. letter only to Mr. Brian E. Berwick-AG's Office N . a L Yeakel-Aus in M?. E.rA. Greene, Jr.- ouston P. S. The original record and all papers filed in your Court are being returned to you today.