Ronald G. Greening v. Texas Water Commission and Travis County Water Control and Improvement District No. 17 ( 1992 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-285-CV



RONALD G. GREENING,

APPELLANT

vs.





TEXAS WATER COMMISSION AND TRAVIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 17,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 91-14820, HONORABLE PETE LOWRY, JUDGE

PER CURIAM

Appellant Ronald G. Greening appeals from the order of the district court of Travis County dismissing his suit for judicial review of an order of appellee Texas Water Commission for want of jurisdiction. We will reverse the order of dismissal.

On September 6, 1990, the Commission issued its order authorizing appellee Travis County Water Control & Improvement District No. 17 to sell bonds, in the amount of $7,895,000, at an interest rate of 8.0% through the Texas Water Development Board. See generally Tex. Water Code Ann. § 51.421 (West Supp. 1992). The District later requested the Commission to amend the order. On August 9, 1991, the Commission issued an order approving the District's request for an amendment authorizing the District to sell the bonds on the open bond market at an interest rate of 9.1794%. See generally 31 Tex. Admin. Code § 293.86 (1988).

Greening filed a request for rehearing with the Commission on August 20, 1991. In his brief, Greening states that the Commission denied the request for rehearing on September 18, 1991. The record before this Court does not include a Commission order denying the request for rehearing. ⁽¹⁾ Greening filed his suit for judicial review of the August 9th order in the district court of Travis County on October 18, 1991. See Tex. Water Code Ann. §§ 5.351, .354 (West 1988).

The Commission answered and filed a plea to the jurisdiction asserting that Greening did not timely file his petition in district court and that his rehearing request did not meet the minimum requirements for a motion for rehearing of an agency order. After a hearing, the district court issued its order granting the plea to the jurisdiction and dismissing the cause for want of jurisdiction. Greening appeals from this order of dismissal.

In his only point of error, Greening asserts that the district court erred in dismissing the cause for want of jurisdiction. He first contends that he timely complied with all Commission requirements. The Water Code provides, "A person affected by a ruling, order, or decision of the commission must file his petition within 30 days after the effective date of the ruling, order, or decision." Water Code § 5.351(b). The Commission rules provide, in pertinent part, "The motion [for rehearing] shall be filed in writing within 20 days after the date the party or his attorney of record is notified of the final decision or order." Tex. Admin. Code § 273.1 (Supp. 1991). ⁽²⁾ The rules provide further that a person may file a petition for judicial review of an order within thirty days after the order is final. Tex. Admin. Code § 273.6 (1988). If a party files a motion for rehearing, an "order if [sic] final . . . on the date of rendition of the order overruling the motion for rehearing or on the date the motion is overruled by operation of law." Tex. Admin. Code § 273.5 (1988).

Greening contends that he timely filed his petition for judicial review pursuant to the Water Code and the above rules. The Commission and the District respond that the rules are inapplicable here because they apply only to contested cases. Because the underlying proceeding was not a contested case, ⁽³⁾ Water Code § 5.351 required Greening to file his petition within thirty days after the Commission issued its order on August 9th.

The legislature has delegated to the Commission authority over the issuance of bonds by a water control and improvement district. Water Code § 51.421; see generally Tex. Admin. Code §§ 293.41-.45 (1988). The Commission renders its decision on a water district's application to issue bonds by order. Tex. Admin. Code § 293.45(a) (1988). To determine whether the cited Commission rules apply in this proceeding, we construe the rules according to the same principles of construction as statutes. Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976); Lunsford v. Board of Nurse Examiners, 648 S.W.2d 391, 396 (Tex. App.--Austin 1983, no writ); Lloyd A. Fry Roofing Co. v. State, 541 S.W.2d 639, 642 (Tex. Civ. App.--Dallas 1976, writ ref'd n.r.e.).

In construing a rule or regulation, the primary objective is to give effect to the intent of the rule or regulation. Lewis, 540 S.W.2d at 310; Airport Coach Serv., Inc. v. City of Fort Worth, 518 S.W.2d 566, 574 (Tex. Civ. App.--Tyler 1974, writ ref'd n.r.e.); see Jones v. Del Andersen & Assoc., 539 S.W.2d 348, 350 (Tex. 1976); Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137 (Tex. App.--Austin 1986, writ ref'd n.r.e.). A reviewing court is not responsible for omissions in a rule. The court must simply give a true and fair interpretation of the language, an interpretation that is not forced, exaggerated, or strained and that the regulatory language will fairly sanction and clearly sustain. Railroad Comm'n v. Miller, 434 S.W.2d 670, 672 (Tex. 1968); Sexton, 720 S.W.2d at 137.

The analysis here begins with the fact that Greening filed a request or motion for rehearing that was timely pursuant to § 273.1 of the Texas Administrative Code. Because Greening did so, the question whether a motion was required is irrelevant. ⁽⁴⁾ Sections 273.5 and 273.6 are clear and unambiguous; therefore, we are to give these rules their common everyday meaning. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983). The Commission and the District assert that the context and wording of §§ 273.5 and 273.6 show that they apply only to contested cases. The rules, however, do not refer to a "contested case" and are found under the general heading "Proceedings after Final Decision." Compare, e.g., Tex. Admin. Code Ann. § 273.7 (1988) (record "in a contested case"). The sections preceding the provisions at issue consistently refer to a "hearing" or "public hearing" and only infrequently to the more specific "contested case" or "adjudicative hearing."

The language of the rules at issue tracks the language of the Administrative Procedure and Texas Register Act, Tex. Rev. Civ. Stat. Ann. 6252-13a (West Supp. 1992) ("APTRA") and was adopted shortly after its enactment. See APTRA §§ 16(c),(e), 23 (West Supp. 1992); 3 Tex. Reg. 522-29 (1978) (Tex. Water Comm'n, Rule 155.01.00-.08.035) (since repealed). Nevertheless, we may not preclude the application of §§ 273.5 and 273.6 to this proceeding when the rules themselves do not expressly limit their application to contested cases as appellees urge. See Cail, 660 S.W.2d at 815.

As stated, the approval or disapproval of a bond issue is a matter expressly delegated to the Commission. Water Code § 51.421. The purpose of a motion for rehearing is to provide an agency notice that a party is dissatisfied with a final order and will seek review if the ruling is not changed. Suburban Util. Corp. v. Public Util. Comm'n, 652 S.W.2d 358, 364 (Tex. 1983). An interpretation of a rule that allows for a motion for rehearing and, thereby, provides the agency an opportunity to correct any error is neither strained nor exaggerated. See Ross v. Texas Catastrophe Property Ins. Ass'n, 770 S.W.2d 641, 642-43 (Tex. App.--Austin 1989, no writ); Suburban Util. Corp., 652 S.W.2d at 365; United Sav. Ass'n v. Vandygriff, 594 S.W.2d 163, 168 (Tex. Civ. App.--Austin 1980, writ ref'd n.r.e.).

Section 5.351 of the Water Code requires a party to seek judicial review of a Commission order within thirty days of its effective date. Pursuant to § 273.5, that date was September 18, 1992, or the date the motion was overruled by operation of law. Greening filed his petition in the district court of Travis County on October 18, 1992. Accordingly, the petition was timely. Water Code § 5.351; Tex. Admin. Code § 273.6 (1988).

Under his point of error, Greening also asserts that his motion for rehearing meets the requirement of Commission rule 273.1 and Railroad Commission v. Missouri Pacific Railroad Co., 588 S.W.2d 640 (Tex. Civ. App.--Beaumont 1979, writ ref'd n.r.e.). In pertinent part, the rule requires that a motion for rehearing contain "a concise statement of each allegation of error." Tex. Admin. Code § 273.1. In his motion, Greening requested "that the [Commission] conduct a rehearing and an evidentiary hearing in the request of [the District] . . . for bond issue approval," and stated, "I made a timely request for such a hearing and that request was supported by Commission staff."

The purpose of a motion for rehearing is to provide an agency notice that a party is dissatisfied with a final order and that the party will seek review if the ruling is not changed.  Suburban Util. Corp., 652 S.W.2d at 364; see United Sav. Ass'n, 594 S.W.2d at 168-70. As to the APTRA requirement, the supreme court has determined that a motion for rehearing must "be sufficiently definite to apprise the regulatory agency of the error claimed and to allow the agency opportunity to correct the error or to prepare to defend it." APTRA § 16(e); Suburban Util. Corp. 652 S.W.2d at 365; see Texas Ass'n of Long Distance Tel. Cos. v. Public Util. Comm'n, 798 S.W.2d 875, 881 (Tex. App.--Austin 1990, writ denied). Accordingly, a motion must set out two requirements pertaining to each contention: (1) the particular ruling or action of the agency that the movant asserts was erroneous and (2) the legal basis upon which the claim of error rests. Burke v. Central Educ. Agency, 725 S.W.2d 393, 396-97 (Tex. App.--Austin 1987, writ ref'd n.r.e.); Hooks v. Texas Dept. of Water Resources, 645 S.W.2d 874, 880 (Tex. App.--Austin 1983, writ ref'd n.r.e.).

At issue here is whether Greening's motion sets out the legal basis for the asserted error, the lack of an evidentiary hearing. Greening was not required to brief either the law or the facts in his request for rehearing. City of El Paso v. Public Util. Comm'n, No. 3-90-007-CV, slip op. at 34 (Tex. App.--Austin Aug. 26, 1992, n.w.h.)(motions for rehearing need not contain citations of authority); Burke, 725 S.W.2d at 397. In his motion, Greening states that he timely requested a hearing and lists reasons why he believes a hearing is necessary. We conclude that the motion is sufficient. See Tex. Admin. Code § 273.1 (1991); City of El Paso, slip op. at 34; Texas Ass'n of Long Distance Tel. Cos., 798 S.W.2d at 881; Palacios v. Texas Real Estate Comm'n, 797 S.W.2d 167, 169 (Tex. App.--Corpus Christi 1990, writ denied).

Accordingly, we sustain Greening's point of error. The trial court's order of dismissal is reversed and the cause remanded for trial on the merits.

[Before Justices Powers, Aboussie and B. A. Smith]

Reversed and Remanded

Filed: September 16, 1992

[Do Not Publish]

1. Neither the Commission nor the District directly challenges this statement. See Tex. R. App. P. 74(f). If the Commission did not deny the motion on the date stated, the motion was deemed overruled by operation of law on September 23, 1991. 31 Tex. Admin. Code § 273.2 (1988).

2. The District suggests that the rules at issue were not properly before the district court and, presumably, are not part of the record before this Court. See Sparkman v. Maxwell, 519 S.W.2d 852, 855 (Tex. 1975). Pursuant to Tex. R. Civ. Evid. 204, a court, on its own motion, may take judicial notice of the contents of the Texas Register and of rules published in the Texas Administrative Code. The Administrative Procedure and Texas Register Act, Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 4(c) (West Supp. 1992) ("APTRA"); and the Texas Administrative Code Act, Tex. Rev. Civ. Stat. Ann. art. 6252-13b, § 4 (West Supp. 1992), require a court to take judicial notice of the contents of the Texas Register and the Texas Administrative Code, respectively. Metro Fuels, Inc. v. City of Austin, 827 S.W.2d 531, 532 (Tex. App.--Austin 1992, no writ).

3. APTRA defines "contested case" as "a proceeding . . . in which the legal rights, duties, or privileges of a party are to be determined by an agency after an opportunity for an adjudicative hearing." APTRA, § 3(2) (West Supp. 1992). Neither the Water Code nor the Commission rules expressly provide for a hearing on an application of a water control and improvement district to issue bonds. See generally Big D Bamboo, Inc. v. State, 567 S.W.2d 915, 918 (Tex. Civ. App.--Beaumont 1978, no writ); Robert W. Hamilton and J.J. Jewett, III, The Administrative Procedure and Texas Register Act: Contested Cases and Judicial Review, 54 Tex. L. Rev. 285, 286-88 (1976).

4. We expressly do not address the § 273.1 requirement of a motion for rehearing as a prerequisite in this instance to a suit for judicial review when the case is not a "contested case" governed by APTRA. Tex. Admin. Code § 273.1 (1991). We question the authority of a regulatory agency to establish, without statutory authority, a prerequisite to a suit for judicial review in district court. See Tex. Const. art. V, § 8; APTRA § 16(e) (West Supp. 1992); Burke v. Central Educ. Agency, 725 S.W.2d 393, 395-96 (Tex. App.--Austin 1987, writ ref'd n.r.e.); City of Lubbock v. Bownds, 623 S.W.2d 752, 755 (Tex. App.--Amarillo 1981, no writ).