General Practice, Solo and Small Firm Section of the State Bar of Texas


FALL 2018



Wilson v. New Braunfels Utilities, 536 S.W.3d 5 (Tex. App.—Austin 2016)


Plea to Jurisdiction Denied in Water Rights Dispute:  Defendant New Braunfels Utilities ("NBU") sued the Lower Colorado River Authority ("LCRA") and certain LCRA officials to quiet title to disputed water rights.  Generally, NBU claimed LCRA sold and conveyed certain water rights in the Comal River to NBU, whereas LCRA claimed the rights pursuant to a contractual reverter interest in a subsequent lease with NBU.  Held:  The court affirmed the district court's denial of the LCRA officials' plea to the jurisdiction because governmental immunity does not bar title-based claims against such officials at the pleadings stage.  The opinion includes some information about NBU's claim of water rights under a historic "Certified Filing" through an administrative adjudication process, judicial adjudication of the rights, and issuance of a Certificate of Adjudication.  See Tex. Water Code Chap. 11 Subchap. G (Water Rights Adjudication Act of 1967).


NBL 300 Group Ltd. v. Guadalupe-Blanco River Authority, 537 S.W.3d 529 (Tex. App.—San Antonio 2017)


Developer's Pleadings Support Subject Matter Jurisdiction in Wastewater System Construction Agreement:  Developer NBL and governmental unit GBRA entered into an agreement where NBL was to provide and oversee wastewater system construction and GBRA was to provide reimbursements from later connections.  After NBL sued GBRA in part for breach of contract, GBRA filed a plea to the jurisdiction seeking dismissal at the pleadings stage for lack of subject matter jurisdiction.  Held: The appellate court reversed the trial court's grant of the plea, finding that the legislature waived sovereign immunity from suit because the claim was for breach of a contract for services and otherwise met relevant statutory requirements for such waiver.  See Tex. Loc. Gov't. Code Ann. Sec. 271.151 - 271.152.


West Travis County Public Utility Agency v. Travis County Municipal Utility Dist. No. 12, 537 S.W.3d 549 (Tex. App.—Austin 2017)


Sovereign Immunity from Suit Not Waived in Water Services Agreement Dispute:  In this plea to the jurisdiction controversy, the appellate court reversed the trial court's denial of the Agency's plea and rendered judgment dismissing the MUD's claims.  This opinion provides an example of strict statutory construction for any waiver of governmental immunity from suit.  Any such waiver must be clear and unambiguous.  In this case, the court determined that the dispute did not relate to a contract subject to Tex. Loc. Gov't. Code Ann. Sec. 271.152.

Brazos Electric Power Cooperative, Inc. v. Texas Commission on Environmental Quality, 538 S.W.3d 666 (Tex. App.—El Paso 2017)


Denial of Air Pollution Tax Break for Generators Affirmed:  Brazos Electric installed heat recovery steam generators at two fossil fuel power plants resulting in more efficient operation that generated more electricity with the same amount of fossil fuel.  Generally, Brazos Electric challenged TCEQ's denial of an ad valorem tax break for installation of devices to comply with federal and state air pollution abatement requirements.  TCEQ denied the tax break after applying a formula to balance increased capital costs for compliance with economic gain. See e.g. Tex. Tax Code Ann. Sec. 11.31 and 30 Tex. Admin. Code Sec. 17.17 (d).  In a lengthy and complex opinion, the court in part discusses the legal framework for tax break consideration, the administrative and appeal process for TCEQ determinations, TCEQ's discretion, and statutory construction.

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