Opinion
NO. 14-18-00628-CV
07-30-2020
Richard A. HYDE, P.E., in His Official Capacity as Executive Director of the Texas Commission on Environmental Quality and the Texas Commission on Environmental Quality, Appellants v. HARRISON COUNTY, Texas, Appellee
Rance Lamar Craft, Kristofer S. Monson, David Terry, Austin, for Appellants. Joshua Humphreys, James P. Allison, Austin, for Appellee.
Rance Lamar Craft, Kristofer S. Monson, David Terry, Austin, for Appellants.
Joshua Humphreys, James P. Allison, Austin, for Appellee.
Panel consists of Chief Justice Frost and Justices Wise and Hassan.
Justice Hassan joins this opinion except for subsection 6 of section II.A. Justice Wise joins the opinion in its entirety.
Kem Thompson Frost, Chief Justice The Texas Commission on Environmental Quality and its executive director appeal the district court's vacatur and dismissal of the commission's final decision in a contested enforcement action against a Texas county based on the district court's determination that the county enjoyed governmental immunity as to the enforcement action and the imposition of an administrative penalty under Texas Water Code section 7.051. The commission and its executive director assert that governmental immunity does not apply in this context or that the Texas Legislature has waived the county's governmental immunity as to enforcement actions seeking imposition of an administrative penalty under this provision. We presume that, absent a waiver, governmental immunity applies in this context. Concluding that the Texas Legislature has waived the county's presumed governmental immunity as to enforcement actions seeking imposition of an administrative penalty under Water Code section 7.051, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellee/petitioner Harrison County (the "County") owns and operates underground storage tanks at its road and bridge department and at the Harrison County Airport (the "Tanks"). An investigator working on behalf of appellant/defendant Texas Commission on Environmental Quality (the "Commission") documented that the County had not provided release detection for the pressurized piping associated with the Tanks, in violation of Texas Water Code section 26.3475(a) and title 30, section 334.50(b)(2) of the Texas Administrative Code. Specifically, the County allegedly had not conducted the required annual line-leak-detector and piping-tightness tests.
Based on these findings, appellant/defendant Richard A. Hyde, P.E., in his official capacity as Executive Director of the Texas Commission on Environmental Quality initiated an administrative enforcement action against the County before the Commission (the "Enforcement Action"). Hyde alleged that the County had violated Water Code section 26.3475(a) and title 30, section 334.50(b)(2) of the Administrative Code. Based on these asserted violations, Hyde sought an administrative penalty of $5,626 against the County under Water Code section 7.051.
Hyde initially requested an administrative penalty of $8,250, but he later reduced the request to $5,626.
The County answered, contested the Enforcement Action, and requested a hearing. The Commission referred the Enforcement Action to the State Office of Administrative Hearings for an evidentiary hearing. The County filed a plea to the jurisdiction, asserting that the Commission lacked subject-matter jurisdiction over the County in the Enforcement Action because the County had immunity from suit under the doctrine of governmental immunity and because the Legislature had not waived that immunity. The administrative law judge signed an order denying the plea to the jurisdiction and stating the following conclusions:
Courts often use the terms "sovereign immunity" and "governmental immunity" interchangeably even though they are two distinct concepts. Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 694 n. 3 (Tex. 2003). "Sovereign immunity" refers to a State's immunity from suit and liability. Id. Its protection extends not only to the State, but also to the varying divisions of state government, including agencies, boards, hospitals, and universities. "Governmental immunity" protects political subdivisions of the State, including counties, cities, and school districts. Id. Though the terms differ, the law gives these two immunities the same treatment as to the issues raised in today's case. See id. Thus, we cite cases involving sovereign immunity and cases involving governmental immunity without noting the different type of immunity involved.
(1) Under Water Code section 7.051, the Commission may assess an administrative penalty against a person who violated a provision of the Water Code or a rule adopted or order issued by the Commission;
(2) Under Government Code section 311.005, the word "person" as used in Water Code section 7.057 includes governmental subdivisions and agencies;
(3) Under Government Code section 311.034, a statute may not be construed as a waiver of governmental immunity unless the waiver is effected by clear and unambiguous language;
(4) Under Government Code section 311.034, the applicability of the definition of "person" from Government Code section 311.005 to a statute does not indicate legislative intent to waive governmental immunity unless the context of the statute indicates no other reasonable construction;
(5) Based on the context of Water Code section 7.051, including Water Code section 7.067(a), (a-1), the only reasonable statutory construction is that the Legislature intended to waive the County's governmental immunity for the imposition by the Commission of an administrative penalty under Water Code section 7.057 ; and
(6) the failure to adopt this statutory construction would make Water Code section 7.067(a-1) meaningless.
After the administrative law judge conduced an evidentiary hearing and presented a proposal for decision, the Commission issued its decision in the Enforcement Action in an order assessing $5,626 in administrative penalties against the County under Water Code section 7.051. The Commission based this decision on its determination that the County violated Water Code section 26.3475(a) and title 30, section 334.50(b)(2) of the Administrative Code. The Commission's order contained findings of fact, including the following:
• An investigator concluded that the County had failed to provide release detection for the pressurized piping associated with the Tanks, in violation of title 30, section 334.50(b)(2) of the Administrative Code.
• The County had not conducted line-leak-detector and piping-tightness tests for one year prior to June 18, 2015.
• If piping at an underground-storage-tank system fails and is not tested annually, gasoline or diesel fuel can leak undetected into groundwater and surface water where humans and the environment may be exposed to it.
• Undetected leaks from an underground-storage-tank system can be catastrophic because gasoline and diesel fuel are toxic and flammable.
• After the June 18, 2015 inspections, the County had line-leak-detector and piping-tightness tests conducted
by a contractor, and the County's piping passed both tests.
• The County's compliance history shows that it is generally a high performer; however, the County had a previous alleged violation at one facility that was resolved with an agreed order.
The Commission's order contained conclusions of law, including the following:
• Under Water Code section 7.051(a)(1)(A),(B), the Commission may assess an administrative penalty against a person who violates a provision of the Water Code within the Commission's jurisdiction or any rule adopted thereunder.
• Under Government Code section 311.005, as used in Water Code section 7.051, the term "person" covers governmental subdivisions, including counties.
• The context of Water Code section 7.051(a)(1)(A) and (B) indicates that the legislature intended to waive governmental immunity so that the Commission could assess administrative penalties against counties for their violations of the sections of the Water Code that the Commission administers and rules adopted under them, and no other construction of these statutes is reasonable.
• The County violated Water Code section 26.3475(a) and title 30, section 334.50(b)(2) of the Administrative Code.
• Based on consideration of the findings of fact and conclusions of law, the factors set out in Water Code section 7.053 and the Commission's penalty policy, a total administrative penalty of $5,626 is justified and should be assessed against the County for the violations in this case.
The County timely moved for rehearing, and the motion was overruled by operation of law. Under Government Code section 2001.171, the County filed a petition for review of the Commission's decision in the district court below, naming Hyde and the Commission (collectively the "Commission Parties") as defendants. In its petition the County asserted that governmental immunity applied to the Enforcement Action and that the Legislature had not waived the County's governmental immunity in this context. Therefore, the County alleged that it enjoyed immunity from suit in the Enforcement Action and that the Commission exceeded its jurisdiction in imposing the administrative penalty upon the County. In its petition, the County also asserted arguments on the merits, challenging the sufficiency of the evidence and the fact findings to support the Commission's decision.
The district court determined that the County enjoyed governmental immunity in this case that the Water Code did not clearly and unambiguously waive immunity. So, the district court ruled that the County is not subject to the administrative penalty that the Commission assessed against the County. The district court vacated and dismissed the Commission's decision. The Commission Parties timely appealed to the Third Court of Appeals. The Supreme Court of Texas later transferred this case from the Third Court of Appeals to this court.
In transfer cases, the transferee court must decide the appeal in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court. Tex. R. App. P. 41.3.
II. ISSUES AND ANALYSIS
Under their first appellate issue, the Commission Parties assert that governmental immunity does not apply in the context of this case for the following reasons:
• Governmental immunity applies only in judicial proceedings and therefore does not apply in administrative proceedings.
• Administrative penalties are not monetary damages that implicate governmental immunity.
• Governmental immunity protects sovereign functions, not regulated activities. By owning and operating an underground storage tank the County took part in a regulated activity rather than exercising a sovereign power; therefore, governmental immunity does not apply.
• The primary purpose for governmental immunity is to prevent judicial control over the decision-making process of the other two branches of government and that policy is not implicated in this case.
• By choosing to own underground storage tanks, the County subjected itself to State regulation.
If governmental immunity does not apply in this context, then there would be no need to address whether the Legislature has waived the County's governmental immunity in this context. See City of Galveston v. State of Texas , 217 S.W.3d 466, 471 (Tex. 2007). We presume, without deciding, that all of the Commission Parties' arguments as to why governmental immunity does not apply in this case lack merit, and we proceed to address the Commission Parties' second issue.
A. Has the Legislature waived the County's governmental immunity in the context of an administrative proceeding in which the Executive Director seeks an administrative penalty under Water Code section 7.051 ?
Under their second issue, the Commission Parties argue that the Water Code waives the County's governmental immunity in the context of an administrative enforcement action brought to impose an administrative penalty under Water Code section 7.051.
1. Governmental Immunity
Because the County is a political subdivision of the State of Texas, the County generally enjoys governmental immunity. See Harris County v. Annab , 547 S.W.3d 609, 612 (Tex. 2018). Governmental immunity has two components: immunity from liability and immunity from suit. See Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006). When a political subdivision of the State enjoys immunity from suit under the doctrine of governmental immunity, a court lacks subject-matter jurisdiction, and we presume, without deciding, that the Commission would lack jurisdiction over the Enforcement Action if the County has immunity from suit based on governmental immunity. See Tex. Dep't of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999).
2. Waivers of Governmental Immunity
This case does not involve an ultra vires claim, a claim in which a plaintiff may sue state officers in their official capacity, thus suing the governmental entity for all practical purposes, without a statutory waiver of immunity. See City of El Paso v. Heinrich , 284 S.W.3d 366, 371–73 (Tex. 2009). The Commission Parties do not assert that the non-statutory waiver of immunity from the Reata case applies, and the record does not show any waiver of governmental immunity under the Reata case. See Reata Construction Corp. v. City of Dallas , 197 S.W.3d 371, 373 (Tex. 2006) ; Alobaidi v. Univ. of Tex. Health Science Center at Houston , 243 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Instead, the Commission Parties assert that the Legislature clearly and unambiguously waived the County's governmental immunity from an enforcement action seeking an administrative penalty under Water Code section 7.051 based on Water Code sections 7.051 and 7.067 and Government Code sections 311.005 and 311.034. See Tex. Gov't Code Ann. §§ 311.005, 311.034 (West, Westlaw through 2019 R.S.); Tex. Water Code Ann. §§ 7.051, 7.067 (West, Westlaw through 2019 R.S.). For there to be a waiver of governmental immunity in this context, there must be a clear and unambiguous waiver of the County's governmental immunity from assessment of an administrative penalty under section 7.051. See Tex. Gov't Code Ann. § 311.034 ; Tooke , 197 S.W.3d at 332–33 (requiring clear and unambiguous language to waive governmental immunity).
Courts have little difficulty recognizing the Legislature's intent to waive governmental immunity if a statute contains language expressly waiving governmental immunity. See Wichita Falls State Hospital v. Taylor , 106 S.W.3d 692, 697 (Tex. 2003). No statute in today's case contains express-waiver language. Absent such language, Texas courts rarely conclude that the Legislature has waived governmental immunity. See id. Still, the law recognizes the possibility and courts have found a waiver of immunity even when statutes lack express-waiver language. See Kerrville State Hosp. v. Fernandez , 28 S.W.3d 1, 3–8 (Tex. 2000) ; Tex. Educ. Agency v. Leeper , 893 S.W.2d 432, 444–46 (Tex. 1994). The parties have not cited and research has not revealed any case in which a court determined whether a waiver exists of a governmental entity's sovereign immunity or governmental immunity as to an enforcement action seeking the imposition of an administrative penalty under Water Code section 7.051. Today's case appears to present an issue of first impression.
We review the district court's interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth , 774 S.W.2d 653, 655–56 (Tex. 1989). Our objective in construing a statute is to determine and give effect to the Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If we deem the meaning of the statutory language unambiguous, we adopt the interpretation supported by the plain meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex. 1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the Legislature chose. See id.
3. Water Code Sections 7.051 and 26.3475
In Water Code section 7.051, entitled "Administrative Penalty," the Texas Legislature provides:
(a) The commission may assess an administrative penalty against a person as provided by this subchapter if:
(1) the person violates:
(A) a provision of this code or of the Health and Safety Code that is within the commission's jurisdiction;
(B) a rule adopted or order issued by the commission under a statute within the commission's jurisdiction; or
(C) a permit issued by the commission under a statute within the commission's jurisdiction; and
(2) a county, political subdivision, or municipality has not instituted a lawsuit and is not diligently prosecuting that lawsuit under Subchapter H against the same person for the same violation.
(b) This subchapter does not apply to violations of Chapter 11, 12, 13, 16, or 36 of this code, or Chapter 341, Health and Safety Code.
Water Code section 26.3475(a) falls within the Commission's jurisdiction and requires "[a]ll piping in an underground storage tank system that routinely conveys regulated substances under pressure must comply with commission requirements for pressurized piping release detection equipment." Tex. Water Code Ann. § 26.3475 (West, Westlaw through 2019 R.S.). The Commission requires that owners and operators of underground-storage-tank systems ensure that "release detection equipment or procedures are provided in accordance with [the requirements contain in title 30, section 334.50(b)(2) of the Texas Administrative Code ]." 30 Tex. Admin. Code § 334.50(b). The Commission may assess an administrative penalty under section 7.051 against a "person" who violates Water Code section 26.3475. See Tex. Water Code Ann. §§ 7.051, 26.3475 (West, Westlaw through 2019 R.S.); Crystal Int'l v. Texas Comm. Envt'l Quality , No. 03-16-00008-CV, 2016 WL 4272117, at *1 (Tex. App.—Austin Aug. 10, 2016, no pet.) (mem. op.).
4. Government Code Sections 311.005 and 311.034
The Water Code does not define "person" as used in Water Code section 7.051. See Tex. Water Code Ann. § 7.051, et seq. Because neither the statute nor the context in which this word is used requires a different definition, the following definition of "person" applies to Water Code section 7.051 : " ‘Person’ includes [a] corporation, organization, government or governmental subdivision or agency , business trust, estate, trust, partnership, association, and any other legal entity." Tex. Gov't Code Ann. § 311.005 (italics added); see id. § 311.002 (West, Westlaw through 2019 R.S.). Even so, the applicability of this statutory definition of "person" to Water Code section 7.051 "does not indicate legislative intent to waive [governmental] immunity unless the context of the statute indicates no other reasonable construction." Tex. Gov't Code Ann. § 311.034.
Consistent with Government Code section 311.034, the Supreme Court of Texas has concluded that merely including governmental entities in the statutory definition of "person," whether that definition applies under Government Code section 311.005 or in the applicable statutory scheme under which the Legislature allegedly has waived governmental or sovereign immunity, does not suffice to establish a clear and unambiguous waiver of immunity or that the context of the statute indicates no reasonable construction other than a waiver of immunity. See Chambers-Liberty Counties Navigation Dist. v. State , 575 S.W.3d 339, 345–46 (Tex. 2019) ; Wichita Falls State Hospital , 106 S.W.3d at 697–700. Applying a liability statute to "any person," with person defined as in Government Code section 311.005, does not by itself establish a waiver of immunity because the supreme court has concluded that a reasonable construction of the liability statute in this context is that "person" applies only to private persons and not to governmental entities. See Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46 ; Rolling Plains Groundwater Conserv. Dist. v. City of Aspermont , 353 S.W.3d 756, 759 (Tex. 2011). If a reasonable interpretation exists that gives effect to all of a statute's words, it would not be reasonable to interpret the statute in a way that makes part of the statute meaningless. See City of Dallas v. TCI West End, Inc. , 463 S.W.3d 53, 55–56 (Tex. 2015). The supreme court has noted that a statutory definition of "person" plus some general liability language in the statute does not suffice to waive immunity if construing the statute not to waive immunity would not render any part of the statutory scheme meaningless. See Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46 ; Wichita Falls State Hospital , 106 S.W.3d at 697–700. But, the high court has contrasted this situation with a statutory context in which a statute defines "person" to include governmental entities, a statute imposes liability on a "person," and construing the statute not to waive immunity would make part of the statutory scheme meaningless. See Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46 ; Wichita Falls State Hospital , 106 S.W.3d at 697–700. In this scenario, the supreme court has indicated a clear and unambiguous waiver of immunity would exist. See Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46 ; Wichita Falls State Hospital , 106 S.W.3d at 697–700 ; Fernandez , 28 S.W.3d at 3–8.
The Commission Parties cite City of Galveston v. State. See 518 S.W.2d 413, 416–19 (Tex. Civ. App.—Houston [14th Dist.] 1975, no writ). That case is not on point because no party in the case raised, and the court did not address, any issue regarding sovereign immunity or governmental immunity. See id.
5. The Text of Water Code Section 7.067
Water Code section 7.067, entitled "Supplemental Environmental Projects," provides as follows:
(a) The commission may compromise, modify, or remit , with or without conditions, an administrative penalty imposed under this subchapter. In determining the appropriate amount of a penalty for settlement of an administrative enforcement matter , the commission may consider a respondent's willingness to contribute to supplemental environmental projects that are approved by the commission , giving preference to projects that benefit the community in which the alleged violation occurred. The commission may encourage the cleanup of contaminated property through the use of supplemental environmental projects. The commission may approve a supplemental environmental project with activities in territory of the United Mexican States if the project substantially benefits territory in this state in a manner described by Subsection (b). Except as provided by Subsection (a-1), the commission may not approve a project that is necessary to bring a respondent into compliance with environmental laws, that is necessary to remediate environmental harm caused by the respondent's alleged violation, or that the respondent has already agreed to perform under a preexisting agreement with a governmental agency.
(a-1) For a respondent that is a local government , the commission:
(1) may approve a supplemental environmental project that is necessary to bring the respondent into compliance with environmental laws or that is necessary to remediate environmental harm caused by the local government's alleged violation; and
(2) shall approve a supplemental environmental project described by Subdivision (1) if the local government:
(A) has not previously committed a violation at the same site with the same underlying cause in the preceding five years, as documented in a commission order ; and
(B) did not agree, before the date that the commission initiated the enforcement action, to perform the project.
(a-2) The commission shall develop a policy to prevent regulated entities from systematically avoiding compliance through the use of supplemental environmental projects under Subsection (a-1)(1) , including a requirement for an assessment of:
(1) the respondent's financial ability to pay administrative penalties ;
(2) the ability of the respondent to remediate the harm or come into compliance; and
(3) the need for corrective action.
(b) In this section:
(1) "Local government " means a school district, county , municipality, junior college district, river authority, water district or other special district, or other political subdivision created under the constitution or a statute of this state.
(2) "Supplemental environmental project" means a project that prevents pollution, reduces the amount of pollutants reaching the environment, enhances the quality of the environment, or contributes to public awareness of environmental matters.
(c) The commission may allow a local government or an organization exempt from federal income taxation under Section 501(a), Internal Revenue Code of 1986, as an organization described by Section 501(c)(3) of that code, that receives money from a respondent to implement a supplemental environmental project under this section to use a portion of the money, not to exceed 10 percent of the direct cost of the project, for administrative costs, including overhead costs, personnel salary and fringe benefits, and travel and per diem expenses, associated with implementing the project. Money used for administrative costs under this subsection must be used in accordance with Chapter 783, Government Code.
Tex. Water Code Ann. § 7.067 (emphasis added).
6. The Plain Meaning of Water Code Section 7.067's Text
Under the unambiguous language of Water Code sections 7.051 and 7.067, after the imposition of an administrative penalty under section 7.051, the Commission may agree to a settlement with the respondent in the enforcement action under which the amount of the administrative penalty imposed under section 7.051 is lowered based on the Commission's consideration of the respondent's willingness to contribute to supplemental projects approved by the Commission. See id. § 7.067(a). Respondents who are not governmental entities may not use a supplemental project in a settlement to lower the amount of an administrative penalty under section 7.051 if the project is necessary to bring the respondent into compliance with environmental laws or necessary to remediate environmental harm caused by the respondent's alleged violation. See id. § 7.067(a), (a-1), (b). The Legislature has bestowed broader rights on counties and other political subdivisions of the State that fall within the definition of "local government" in section 7.067. See id. If a respondent is a local government, then the local government may use a supplemental project in a settlement to lower the amount of the administrative penalty assessed against the local government under section 7.051 even if the project is necessary to bring the respondent into compliance with environmental laws or necessary to remediate environmental harm caused by the local government's alleged violation (the "First Special Right"). See id. In addition, if a respondent is a local government, the Commission must approve a supplemental environmental project for use in the settlement of an administrative penalty assessed against the local government if the local government (1) has not previously committed a violation at the same site with the same underlying cause in the preceding five years, as documented in a Commission order; and (2) did not agree, before the date that the Commission initiated the enforcement action, to perform the project (the "Second Special Right"). See id.
In addition, in Water Code section 7.067(a-2), the Legislature requires the Commission to develop a policy to prevent "regulated entities" from systematically avoiding compliance through the use of supplemental environmental projects under subsection (a-1)(1). See id. § 7.067(a-2). Under the plain text of section 7.067, the only entities who may use supplemental environmental projects under subsection (a-1)(1) are governmental entities that fall within the definition of "local government." See id. § 7.067 (a-1), (a-2), (b). The Legislature also requires that in developing this policy, the Commission assess "the respondent's financial ability to pay administrative penalties." See id. § 7.067 (a-2). Again, the only respondents subject to this policy are governmental entities that fall within the definition of "local government." See id. § 7.067 (a-1), (a-2), (b). Simply put, the Legislature created a statutory supplemental-project scheme part of which exclusively benefits governmental entities. The Legislature gave only governmental entities the First Special Right and the Second Special Right.
If counties and other governmental entities that fall within the definition of "local government" enjoyed governmental immunity as to administrative penalties under section 7.051, these entities would have immunity from suit, and the Commission would lack subject-matter jurisdiction to adjudicate the Executive Director's request for these administrative penalties against one of these governmental entities. See Tex. Dep't of Transp. , 8 S.W.3d at 638. If the entities that fall within the definition of "local government" enjoyed governmental immunity as to administrative penalties under section 7.051, these entities would have immunity from liability, and thus the Commission could not hold them liable for any administrative penalties under section 7.051. See Tooke , 197 S.W.3d at 332. Yet, under the plain text of section 7.067, any such governmental immunity from administrative penalties would render meaningless the provisions of section 7.067 that give only local governments the right to settle and lessen their liability for administrative penalties using the supplemental environmental projects described in subsection (1) or subsection (2) of section 7.067(a-1). See Tex. Water Code Ann. § 7.067(a-1). If counties and other political subdivisions of the State have governmental immunity from the assessment of an administrative penalty under section 7.051, why did the Legislature, in ordering the Commission to establish a policy to prevent local governments from abusing their privilege under subsection (1) of section 7.067(a-1), require that the policy include an assessment of the local government's financial ability to pay administrative penalties? See id. § 7.067 (a-1), (a-2), (b). Construing section 7.051 not to waive the County's governmental immunity would make meaningless part of the statutory scheme—subsections (a-1) and (a-2) of section 7.067. See Tex. Water Code Ann. §§ 7.067(a-1), (a-2). The Legislature's enactment of these provisions bespeaks an intent to waive governmental immunity under section 7.051. 7. The Four Aids from the Wichita Falls State Hospital Case
In Wichita Falls State Hospital , the supreme court points to four aids that courts may use to determine whether the Legislature clearly and unambiguously has waived governmental immunity in the absence of express-waiver language. See 106 S.W.3d at 697. Courts are not required to use these nonexclusive aids, and in a number of cases, the high court has chosen not to use them. See Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46 ; Tooke , 197 S.W.3d at 330–45. Nonetheless, because the County presents these aids in its appellate brief, we address them.
The first aid states that a statute that waives governmental immunity must do so beyond doubt. See Wichita Falls State Hospital , 106 S.W.3d at 697 ; Fernandez , 28 S.W.3d at 3. Yet, the statute need not be a model of perfect clarity. See Fernandez , 28 S.W.3d at 3. And, the supreme court has indicated that a clear and unambiguous waiver of immunity exists if (1) a statute defines "person" to include governmental entities, (2) a statute imposes liability on a "person," and (3) construing the statute not to waive immunity would make part of the statutory scheme meaningless. See Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46 ; Wichita Falls State Hospital , 106 S.W.3d at 697–700 ; Fernandez , 28 S.W.3d at 3–8.
Under the second aid, when construing a statute that purportedly waives governmental immunity, we generally resolve ambiguities by retaining immunity, and if the text and history of the statute leave room to doubt whether the Legislature intended to waive governmental immunity, we are less likely to find a waiver. See Wichita Falls State Hospital , 106 S.W.3d at 697. We are following this aid in our analysis.
Under the third aid, courts examine whether the Legislature has required that a governmental entity be joined in a lawsuit for which immunity otherwise would attach. See Wichita Falls State Hospital , 106 S.W.3d at 698. Though that situation is not present in today's case, that fact does not preclude a determination that the Legislature has waived immunity. See id. ; Fernandez , 28 S.W.3d at 3–8.
Under the fourth aid, courts take note of legislative measures to insulate public resources from the reach of judgment creditors. See Wichita Falls State Hospital , 106 S.W.3d at 698. So, when deciding whether the Legislature intended to waive governmental immunity and permit administrative penalties against the County, we consider whether the statute also provides an objective limitation on the County's potential liability. See id. In today's case, though the Legislature has imposed limits on the amount of the administrative penalty that may be imposed under Water Code section 7.051, the Legislature has not enacted lower limits for administrative penalties imposed on governmental entities. See Tex. Water Code Ann. § 7.052 (West, Westlaw through 2019 R.S.). Still, the Legislature has enacted the First Special Right and the Second Special Right for governmental entities — including counties — that fall within the definition of "local government," for use in settling and mitigating administrative penalties imposed against these governmental entities. See Tex. Water Code Ann. § 7.067(a), (a-1). Thus, the Legislature has provided special protections for these governmental entities to limit their potential liability for administrative penalties. See id. 8. The County's Other Arguments
We discuss these rights on page 15.
The County relies on the City of Aspermont case and the City of Midlothian case. See City of Aspermont , 353 S.W.3d at 758–60 ; City of Midlothian v. Black , 271 S.W.3d 791, 797–98 (Tex. App.—Waco 2008, no pet.). Neither case construed Water Code sections 7.051 or 7.067. See City of Aspermont , 353 S.W.3d at 758–60 ; City of Midlothian , 271 S.W.3d at 797–98. In each case the court concluded that applying the definition of "person" in Government Code section 311.005 to the statute at issue did not clearly and unambiguously waive immunity because the statute reasonably could be construed as applying only to private persons. See City of Aspermont , 353 S.W.3d at 758–60 ; City of Midlothian , 271 S.W.3d at 797–98. But, in each of these cases, construing the statute not to waive immunity did not make meaningless any part of the statutory scheme. See City of Aspermont , 353 S.W.3d at 758–60 ; City of Midlothian , 271 S.W.3d at 797–98. These two cases are not on point.
The County argues that Water Code section 7.067 does not show a waiver of immunity because it only applies to proceedings in which an administrative penalty may be imposed under subchapter C of Chapter 7 of the Water Code. See Tex. Water Code Ann. § 7.067(a). Though the County correctly concedes that Water Code section 7.051 falls within this subchapter, the County asserts that section 7.051 does not contain a clear and unambiguous waiver of the County's governmental immunity from administrative penalties, and therefore, section 7.067(a-1) does not apply to administrative penalties under section 7.051. According to the County, section 7.067(a-1) only applies to situations in which a local government's governmental immunity has been clearly and unambiguously waived by statute. The County does not point to any context in which a local government's governmental immunity has been clearly and unambiguously waived and section 7.067(a-1) applies. If, as the County asserts, Water Code section 7.067 only applies to proceedings in which an administrative penalty may be imposed under subchapter C of Chapter 7 of the Water Code, then section 7.067 would apply only to proceedings in which an administrative penalty may be imposed under section 7.051 or section 7.073 of the Water Code. See Tex. Water Code Ann. §§ 7.051, 7.073 (West, Westlaw through 2019 R.S.). Neither of these sections contain clear and unambiguous language waiving the immunity of a local government as to administrative penalties assessed under the respective section. See id. Thus, the County has not shown how to give meaning to section 7.067 (a-1) without a waiver of the local government's immunity as to administrative penalties under this subchapter.
9. Conclusion as to Waiver Analysis
Through the application of Government Code section 311.005, Water Code section 7.051 defines the "person" subject to an administrative penalty to include governmental entities. See Tex. Gov't Code Ann. § 311.005 ; Tex. Water Code Ann. § 7.051. Construing section 7.051 not to waive the County's governmental immunity would make meaningless part of the statutory scheme—subsections (a-1) and (a-2) of section 7.067. See Tex. Water Code Ann. §§ 7.067(a-1), (a-2). We could hardly construe the statute in a way that would effectively eliminate the Legislature's handiwork. Our goal is to interpret, not to abolish, legislative enactments.
We conclude that applying the statutory definition of "person" from Government Code section 311.005 to Water Code section 7.051 shows clear legislative intent to waive governmental immunity against assessment of an administrative penalty under section 7.051 because the context of section 7.051 affords no other reasonable construction. See Tex. Gov't Code Ann. § 311.034 ; Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46. Based on the definition of "person" in section 7.051 and section 7.067's provisions, the Legislature has clearly and unambiguously waived the County's governmental immunity from assessment of an administrative penalty under section 7.051. See Tex. Gov't Code Ann. § 311.034 ; Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46 ; Fernandez , 28 S.W.3d at 3–8. Leeper , 893 S.W.2d at 446. The text and history of the applicable statutes leave no room to doubt that the Legislature intended to waive the governmental immunity of counties and the other governmental entities listed in the definition of "local government" as to the assessment of administrative penalties under Water Code section 7.051. See Tex. Gov't Code Ann. §§ 311.005, 311.034 ; Tex. Water Code Ann. §§ 7.051, 7.067 ; Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 345–46 ; Fernandez , 28 S.W.3d at 3–8. Leeper , 893 S.W.2d at 446. Thus, we sustain the Commission Parties' second issue.
B. Did the district court reversibly err in ruling on the County's petition for review?
We conclude that the Legislature clearly and unambiguously waived the County's governmental immunity from assessment of an administrative penalty under section 7.051. In ruling on the County's petition for review of the Commission's decision, the district court determined that the County enjoyed governmental immunity as to the Enforcement Action and the imposition of administrative penalties under Water Code section 7.051. The district court determined that the Legislature had not clearly and unambiguously waived the County's governmental immunity, and the district court vacated and dismissed the Commission's decision without addressing the County's complaints as to the merits of this decision. We conclude that the district court made an error that probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a).
III. CONCLUSION
Under their first issue, the Commission Parties make various arguments as to why governmental immunity does not apply in this case, as opposed to the Legislature having waived the County's immunity. Having presumed, without deciding, that all of the Commission Parties' arguments as to why governmental immunity does not apply lack merit, we have not addressed the first issue. We conclude based on the definition of "person," as used in section 7.051 and the provisions of section 7.067, that the Legislature clearly and unambiguously waived the County's governmental immunity as to the assessment of an administrative penalty under section 7.051. Thus, the district court reversibly erred in finding no waiver and vacating and dismissing the Commission's decision on this basis. We reverse the district court's judgment and remand the case to the district court so that it may rule on the County's complaints as to the merits of the Commission's decision.
On appeal, the Commission Parties also assert that even if the County's governmental immunity applied and was not waived, the district court erred in vacating and dismissing the Commission's decision because this type of a judgment is not one of the options available under Government Code section 2001.174. See Tex. Gov't Code Ann. § 2001.174 (West, Westlaw through 2019 R.S.). Because we have determined that the Legislature waived the County's governmental immunity in this context, we need not and do not address this appellate complaint, and we make no determination as to whether the district court's judgment would have been proper if the County were entitled to governmental immunity in this case.