Opinion

Austin v. Circle C

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00164-CV

City of Austin, Save Our Springs Legal Defense Fund Inc.,

and Al St. Louis, Appellants

v.

Jerry J. Quick, Kaira G. Quick, John M. Bryant, Ruth E. Bryant, Joe Cox,

Dolores Cox, Florence Turck, and Circle C Land Corp., Appellees

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. 92-0637, HONORABLE JOHN FORBIS, JUDGE PRESIDING

Appellees sued appellant City of Austin (the "City"), challenging the validity of the

water pollution control measure known as the Save our Springs Ordinance (the "Ordinance").

Appellants/Intervenors Save Our Springs Legal Defense Fund, Inc. and Al St. Louis (collectively,

the "Coalition") unsuccessfully attempted to intervene in the suit. The trial court submitted

certain issues to the jury and, after making certain conclusions of law, rendered judgment striking

down the Ordinance as invalid. We will affirm the trial court's judgment, as modified, in part,

and will reverse in part and render judgment that the Ordinance is valid.

BACKGROUND

Through the initiative and referendum process, the Save Our Springs Coalition

Steering Committee, a group of Austinites interested in environmental issues, placed the

Ordinance on the Austin municipal ballot for a local referendum election. On August 8, 1992,

the citizenry of Austin overwhelmingly voted to approve the Ordinance. After it was approved

by the voters, the Austin City Council enacted the Ordinance (1) and integrated it into the City Code.

The Ordinance became effective August 10, 1992.

As stated in its Declaration of Intent, the Ordinance seeks to insure water quality

control in Barton Creek, Barton Springs, and the Barton Springs Edwards Aquifer. The

Ordinance's provisions do not apply city-wide, but only to those areas containing watersheds

contributing to Barton Springs. The Ordinance contains the following provisions pertinent to this

appeal: In order to insure water quality control of the Barton Creek watershed, the Ordinance

limits the percentage of a land tract devoted to "impervious," i.e. , non-porous cover. The

Ordinance also requires that new developments be set back from streams and not contribute to an

increase in the amount of pollution constituents commonly found in urban rainfall runoff water.

The Ordinance prohibits construction in the "critical water quality zone" of the Barton Creek

watershed. The Ordinance provides for no waivers or exceptions except in very limited

circumstances when necessary to avoid conflicting with state and federal laws. Finally, because

the City has jurisdiction to enact ordinances affecting its extraterritorial jurisdiction ("ETJ"), the

Ordinance affects property outside the Austin city limits, including areas of Hays County.

Appellees own land in Hays County and claim its value has been adversely affected

by the Ordinance. Appellees sued the City in Hays County, seeking a declaratory judgment that

the Ordinance was void because it was illegally enacted. Additionally, they challenged the

validity of the ordinance pursuant to section 26.177(d) of the Texas Water Code. Tex. Water

Code Ann. § 26.177 (d) (West Supp. 1996) (authorizing party aggrieved by water pollution control

ordinance to appeal to district court to review whether ordinance is invalid, arbitrary,

unreasonable, inefficient, or ineffective).

The Coalition moved to intervene in the suit, claiming that the City was incapable

of advocating their interests due to previous hostilities over the SOS Ordinance. See, e.g., City

Council of Austin v. Save Our Springs Coalition , 828 S.W.2d 340 (Tex. App.--Austin 1992, no

writ) (Coalition sued City Council to force election on SOS Ordinance).

After having submitted several special issues to the jury, the court rendered

judgment that the Ordinance was null and void. Additionally, within the final judgment, the trial

court incorporated several conclusions of law which, in part, adopted several of the jury findings

on the special issues. The court below concluded that (1) the Ordinance was void under Water

Code section 26.177(d) because it was unreasonable, arbitrary, and inefficient; (2) the Ordinance

was void because it was enacted without a public hearing in violation of section 212.002 of the

Texas Local Government Code. Tex. Loc. Gov't Code Ann. § 212.002 (West 1988); (3) the

Ordinance was void because it regulated the number, use, and size of buildings in the City's

extraterritorial jurisdiction in violation of section 212.003 of the Texas Local Government Code.

Id. § 212.003; (4) the Ordinance becomes effective, if at all, only after the Texas Natural

Resources Conservation Commission ("TNRCC") approves it; and (5) that any permit required

by Circle C Land Corp. for the development of its property shall be subject only to the law in

effect at the time the original application for preliminary subdivision approval was filed.

Furthermore, the court awarded appellees attorney's fees. Finally, all relief prayed for by any

other party, if not expressly granted, was denied by the trial court.

DISCUSSION

Intervention by the Coalition

Before trial, appellees successfully moved to strike the Coalition's plea in

intervention. In their first point of error, the Coalition claims that the trial court abused its

discretion in striking its motion to intervene.

Texas Rule of Civil Procedure 60 allows parties to intervene subject to being

stricken by the court for good cause. Tex. R. Civ. P. 60. The party opposed to the intervention

has the burden of challenging it by a motion to strike. Guaranty Fed. Savs. Bank v. Horseshoe

Operating Co. , 793 S.W.2d 652, 657 (Tex. 1990). Once a motion to strike has been filed, the

trial court has broad discretion in its decision to strike the plea in intervention. The trial court

abuses its discretion when (1) the intervenor, in its own name, could have either brought, or

defended and defeated, the same action, or any part thereof; (2) the intervention will not

complicate the case by an excessive multiplication of the issues; and (3) the intervention is almost

essential to effectively protect the intervenor's interest. Id.

Addressing the third standard above, the Coalition argues that the City cannot

effectively protect its interest because, in the past, the City opposed the Ordinance. Notably, the

Coalition does not argue that the Ordinance, as enacted by the City, does not conform to the

version ratified by the voters. Instead, the Coalition argues that past hostilities with the City

demonstrate that it is presumably incapable of protecting the Coalition's interests at trial.

While the Coalition and the City may have disagreed in the past, the relevant

inquiry is whether the City could have effectively represented the Coalition's interests at the time

of trial . The trial court was not required to presume that past disagreements rendered the City,

per se , an ineffective advocate for the Coalition. Therefore, we conclude that the trial court did

not abuse its discretion in striking the Coalition's plea in intervention. We overrule the

Coalition's first point of error.

The Coalition also raises numerous points of error challenging the trial court's

judgment on the merits. Generally, only parties of record may exercise the right to appeal.

Continental Cas. Co. v. Huizar , 740 S.W.2d 429, 430 (Tex. 1987). The trial court struck the

Coalition's plea in intervention in a pretrial ruling on March 15, 1993. Therefore, the Coalition

never became a proper party to the trial and cannot attack the final judgment on appeal. See

Central Mut. Ins. Co. v. Dunker , 799 S.W.2d 334, 336 (Tex. App.--Houston [14th Dist.] 1990,

writ denied). Accordingly, we dismiss the Coalition's remaining points of error.

The City

Separation of Powers

In its first point of error, the City argues that the trial court erred in rendering

judgment that the Ordinance was unreasonable, arbitrary, and inefficient pursuant to section

26.177(d) of the Texas Water Code. Tex. Water Code Ann. § 26.177 (d) (West Supp. 1996).

Section 26.177(d) provides in pertinent part:

Any person affected by any . . . ordinance relating to water pollution control and

abatement outside the corporate city limits of such city adopted pursuant to this

section or any other statutory authorization may appeal such action to the [Texas

Natural Resource Conservation Commission] or district court . . . . The issue on

appeal is whether the action or program is invalid, arbitrary, unreasonable,

inefficient, or ineffective in its attempt to control water quality. The Commission

or district court may overturn or modify the action of the city . . . .

Id. The City contends that, in the instant cause, section 26.177(d) allowed the court to conduct

a de novo review of the policy considerations behind a legislative act. To this extent, the City

argues that the statute runs afoul of the separation of powers doctrine and is therefore

unconstitutional.

Before addressing the statute's constitutionality, we shall address appellees' claim

that the City has no standing to raise such an argument. Citing McGregor v. Clawson , 506

S.W.2d 922 (Tex. Civ. App.--Waco 1974, no writ), appellees argue that a municipality, created

by the Legislature, has no constitutional rights that it can invoke against its creator. See id. at

929 . Furthermore, citing Boyett v. Clavert , 467 S.W.2d 205 (Tex. Civ. App.--Austin 1971, writ

ref'd n.r.e.), cert. dism'd, 405 U.S. 1035 (1972), appellees argue that the City cannot litigate the

constitutional rights of others. See id. at 210.

The cases upon which appellees rely base their rationale on federal cases holding

that cities cannot raise federal constitutional claims against the State. See, e.g., Williams v.

Mayor & City of Baltimore , 289 U.S. 36, 45-48 (1933); City of Trenton v. State of New Jersey ,

262 U.S. 182, 191 (1923). In fact, the U.S. Supreme Court in Williams stated that, while a city

could not invoke a protection of the federal constitution, it could "be heard to complain of the

constitution of the state. Their standing for that purpose, at least in the state courts, is a question

of state practice." Williams , 289 U.S. at 47-48 .

The Texas Supreme Court has addressed a situation in which a city argued that a

state statute offended the separation of powers doctrine. See Davis v. City of Lubbock , 326

S.W.2d 699, 711-712 (Tex. 1959). In Davis , a statute authorized municipalities to designate

particular "slum" areas as urban redevelopment zones. The statute also expressly provided for

judicial de novo review of the city's designation of a redevelopment area. The City of Lubbock

argued that the statute unconstitutionally permitted the judiciary to review, de novo , a legislative

function. The supreme court agreed, holding that the statute offended the separation of powers

doctrine. Given Davis as precedent, we cannot agree with appellees that cities cannot challenge

statutes on separation of powers grounds. Therefore, we shall address the merits of the City's

claim.

Article II, section 1 of the Texas Constitution divides the functions of government

as follows:

[T]hree distinct departments, each of which shall be codified to a separate body of

magistracy, to wit: Those which are Legislative to one; those which are Executive

to another, and those which are Judicial to another; and no persons, or collection

of persons, being of one of these departments, shall exercise the power properly

attached to either of the others . . . .

Tex. Const. art. II, § 1. When the Legislature delegates a legislative function to a subordinate

body, such as a municipality or an administrative agency, the delegated function is limited only

by the Constitution and is not subject to de novo review by any other branch of government. See

id. ; Davis , 326 S.W.2d at 711-12 ; Texas Vending Comm'n v. Headquarters Corp. , 505 S.W.2d

402, 404 (Tex. App.--Austin 1974, writ ref'd n.r.e.). Therefore, if (1) the Ordinance is the

product of a legislative function, and (2) section 26.177(d) provides for de novo judicial review

of the Ordinance, then section 26.177(d) is unconstitutional. See Texas Vending Comm'n , 505

S.W.2d at 404 .

The Ordinance was clearly adopted pursuant to the delegation of a legislative

function. A government function is legislative, and not judicial, when it "looks to the future and

changes existing conditions by making a new rule, to be applied thereafter to all or part of those

subject to its power." Prentis v. Atlantic Coast Line Co. , 211 U.S. 210, 226 (1908). Therefore,

the Ordinance clearly is legislative because it regulates future behavior rather than adjudicating

past disputes. The decision of how and whether to protect watersheds is one of public policy

because it involves discretionary evaluations of the public health, safety, and welfare. See Davis ,

326 S.W.2d at 714 . Furthermore, "[t]he enactment by a municipal corporation of an ordinance

is a legislative function . . . upon which the Legislature has seen fit to confer part of the

government power reposed in it." City of Grand Prairie v. Turner , 515 S.W.2d 19, 25 (Tex. Civ.

App.--Dallas 1974, writ ref'd n.r.e.).

Given that enactment of the Ordinance was a legislative function, we must next

determine whether section 26.177(d) provides for de novo judicial review. In Southern Canal Co.

v. State Board. of Water Engineers , 318 S.W.2d 619 (Tex. 1958), the supreme court noted that

the "[p]ower to try a case de novo vests a court with full power to determine the issues and rights

of all parties involved, and to try the case as if the suit had been filed originally in that court."

Id. at 622 . In Southern Canal , the supreme court was particularly disturbed at the prospect of

submitting to the jury the question, "Do you find from a preponderance of the evidence that the

Board's order is reasonable ?" Id. at 624 (emphasis added). The court found it "utterly

incongruous" for a jury to decide an agency order's reasonableness by a preponderance of the

evidence standard. Id. ; see also Gerst v. Nixon , 411 S.W.2d 350, 353-54 (Tex. 1967).

The instant cause revisits those very same fears the supreme court had in Southern

Canal . (2) Here, the jury was asked whether, by a preponderance of the evidence , they thought the

Ordinance was unreasonable, arbitrary, and inefficient. The jury answered affirmatively, and the

trial court rendered judgment, incorporating the jury's verdict therein. Therefore, the trial court

erred in conducting a de novo review of a legislative function.

Having concluded that the court erred in conducting a de novo review of the public

policy considerations of the Ordinance, we must now consider whether the statute itself authorized

such a de novo review. Section 26.177(d) describes the standard of review for an appeal:

The issue on appeal is whether the action or program is invalid, arbitrary,

unreasonable, inefficient , or ineffective in its attempt to control water quality. The

commission or district court may overturn or modify the action of the city.

Tex. Water Code Ann. § 26.177 (d) (West Supp. 1996) (emphasis added).

The statute authorizes a court to determine whether a municipal ordinance is

"reasonable" or "arbitrary." The judiciary often reviews statutes for constitutional

unreasonableness. Substantive due process demands that ordinances shall not be "arbitrary,"

"unreasonable," or "capricious." See, e.g., Chandler v. Guiterrez , 906 S.W.2d 195, 202 (Tex.

App.--Austin 1995, writ denied). When reviewing for constitutional unreasonableness, the

judiciary must give great deference to the legislative action and should not substitute its own

public policy judgments for that of the enacting body. Smith v. Davis , 426 S.W.2d 827, 831

(Tex. 1968) (mere difference of opinion, where reasonable minds could differ, not sufficient basis

for striking down legislation as unconstitutional).

The instant statute, however, authorizes judicial review that extends far beyond

examining constitutional infirmities. Section 26.177(d) permits a court to review whether an

ordinance is efficient and/or effective . Such a determination is one of public policy, and therefore

demonstrative of de novo review. See Davis , 326 S.W.2d at 713-14 .

Furthermore, the statute by its express terms authorizes the district court to both

render void or modify the action under review. Such authority demonstrates the court's ability

to substitute its own judgment for that of the body below; again, such power points towards de

novo review. See Southern Canal , 318 S.W.2d at 622 . Accordingly, we conclude that section

26.177(d) of the Water Code unconstitutionally authorizes a reviewing body to review de novo

the public policy considerations behind a legislative act. See Public Util. Comm'n v. GTE-Southwest, Inc. 833 S.W.2d 153, 174-75 (Tex. App.--Austin, 1992), rev'd in part on other

grounds , 901 S.W.2d 401 (Tex. 1995) (typically, one branch of government may not modify

action of another branch without offending separation of powers doctrine). We sustain the City's

first point of error.

Statutory Authority to Enact the Ordinance

In point of error three, the City complains that the Court erred in submitting to the

jury whether the Ordinance was part of a water pollution control and abatement program. The

jury answered that the Ordinance was not part of such a program. In point of error four, the City

complains that the jury's answer is supported by neither legally nor factually sufficient evidence.

Tracking the language of section 26.177(b) of the Water Code the trial court

submitted the following question to the jury:

Do you find that the SOS Ordinance is not part of a water pollution control and

abatement program of the City of Austin?

You are instructed that a water pollution control and abatement program must

include the following two features:

i. the program must encompass the entire City of Austin; and

ii. the program must include only such territory within the City of Austin's

extraterritorial jurisdiction as is, in the City's reasonable judgment, necessary

in order to enable the City of Austin to achieve its reasonable objectives for the

area within its territorial jurisdiction.

The jury responded that the Ordinance was not part of a water pollution and

abatement program. The City argues that the court erred in permitting the jury to construe section

26.177 of the Water Code because the construction of a statute is a question of law for the court,

and not a question of fact for the jury. See City of Dallas v. Cornerstone Bank, N.A. , 879 S.W.2d

264, 269 (Tex. App.--Dallas 1994, no writ).

The trial court's final judgment does not specifically refer to the jury's answer to

this question. Presumably, the answer is significant because if the City did not have the authority

to pass the Ordinance under section 26.177 of the Water Code, then perhaps it had no authority

to pass the Ordinance at all. While the final judgment below strikes down the Ordinance as "void

ab initio ," the court below did not specifically justify this conclusion on the City's inability to pass

the statute under section 26.177.

In any event, regardless of whether the City had the authority to enact the

Ordinance under section 26.177 of the Water Code, the City had such authority under section

401.002 of the Local Government Code, which provides:

(b) A home-rule municipality may provide for the protection of and may police

any watersheds.

(c) The authority granted under this section may be exercised inside or outside the

municipality's boundaries.

Tex. Loc. Gov't Code Ann. § 401.002 (West 1988).

By its express terms, the statute authorizes cities to enact ordinances to protect

watersheds such as the one in the instant cause. There is no case law interpreting the statute as

to this precise issue. However, an Attorney General's Opinion has construed the predecessor

statute to authorize cities to regulate discharge into watersheds located both within their

boundaries and extraterritorial jurisdiction. Op. Tex. Att'y Gen. No. JM-226 (1984). Given the

statute's plain meaning and the Attorney General's persuasive opinion, we conclude that the City

had the authority to enact the Ordinance pursuant to section 401.002 of the Local Government

Code. Irrespective of whether the City had the authority to enact the Ordinance pursuant to

section 26.177 of the Water Code, it did have the authority to enact the Ordinance pursuant to

section 401.002 of the Local Government Code. Therefore, the trial court's conclusion that the

Ordinance is not part of a water pollution and abatement program as contemplated by section

26.177 of the Water Code is irrelevant to the issues on appeal. Accordingly, we need not decide

whether the trial court erred in making such a conclusion.

Ordinance's Effect Pending TNRCC Approval

In its second point of error, the City argues that the trial court erred in rendering

judgment that the Ordinance, while not void for want of TNRCC approval, can only become

effective and enforceable if and when approved by the TNRCC. Section 26.177(a) of the Water

Code directs municipalities with populations in excess of five thousand to establish water pollution

control and abatement programs. Section 26.177(c) provides:

The water pollution control and abatement program required by Subsections (a) and

(b) of this section (3) must be submitted to the [TNRCC] for review and approval.

The [TNRCC] may adopt rules providing the criteria for the establishment of those

programs and the review and approval of those programs.

Appellees argue that subsection (c) requires TNRCC approval before the Ordinance becomes

effective.

Home-rule cities, such as Austin, derive their power from article XI, section 5 of

the Texas Constitution. See Tex. Const. art. XI, § 5; Lower Colorado River Auth. v. City of San

Marcos , 523 S.W.2d 641, 643 (Tex. 1975) (" LCRA "). Therefore, a home-rule city looks to the

Legislature not for grants of authority, but for limitations on their powers. LCRA, 523 S.W.2d

at 643 ; Barnett v. City of Plainview , 848 S.W.2d 334, 338 (Tex. App.--Amarillo 1993, no writ).

The Legislature may limit the power of home rule cities. However, such a limitation must appear

with "unmistaken clarity." LCRA , 523 S.W.2d at 645 .

The City of Austin's charter provides when Ordinances become effective. See

Austin City Charter art. II, § 12. Therefore, for the Legislature, in Water Code section

26.177(c), to have limited the City's authority to set the effective date of the Ordinance, it must

have done so with "unmistaken clarity." See LCRA , 523 S.W.2d at 645 .

While section 26.177(c) states that a water pollution or abatement program must

be submitted to the TNRCC for review and approval, the statute is silent as to whether the

program is effective pending approval. Therefore, we must determine whether the Legislature

enacted section 26.177(c) intending to render local water quality control ordinances void pending

TNRCC approval.

The primary duty of any court in construing a statute is to effectuate the intent of

the Legislature. Seay v. Hall , 677 S.W.2d 19, 25 (Tex. 1984). The intent should be determined

by examining the language used in the statute. Jones v. Del Anderson & Assocs. , 539 S.W.2d

348, 350 (Tex. 1976). A statute should be read as if every word, phrase, and expression were

deliberately chosen for a purpose. State v. Office of Pub. Util. Counsel , 849 S.W.2d 864, 868

(Tex. App.--Austin 1993), writ dism'd improvidently granted , 866 S.W.2d 209 (Tex. 1993).

Moreover, every word excluded from a statute must be presumed to have been excluded for a

purpose. Cameron v. Terrell & Garrett , 618 S.W.2d 535, 540 (Tex. 1981). When the

Legislature has carefully employed a term in one section of a statute, and has excluded it in

another, it should not be implied where excluded. Smith v. Baldwin , 611 S.W.2d 611, 616 (Tex.

1980).

In arguing that the Ordinance is effective pending TNRCC approval, the City

contrasts the language of section 26.177(c) to other sections of the Water Code where the

Legislature expressly provided that local acts were ineffective until approved by the TNRCC. As

evidenced by other sections of the Water Code, the Legislature is well-versed in drafting statutes

to prevent certain acts from taking effect until approved by the TNRCC. For example, Water

Code section 11.121 provides that any project for "the storage, taking, or diversion of water"

shall not begin "without first obtaining a permit from the commission." Likewise, Water Code

section 26.032, since repealed, (4) gave counties the authority to regulate sewage facilities. In

contrast to section 26.177(c), section 26.032(c) expressly stated that any local ordinance would

remain ineffective pending TNRCC approval: "Before the order, resolution, or other rule

becomes effective, the county shall submit it to the Commission and obtain the Commissioner's

written approval." Act of June 2, 1971, 62d Leg., R.S., ch. 613, § 21.084(c), 1971 Tex. Gen.

Laws 1976 , repealed by Act of June 17, 1987, 70th Leg., R.S., ch. 406, § 2, 1987 Tex. Gen.

Laws 1938 .

The Legislature chose not to include in section 26.177(c) any such express

provision limiting the effectiveness and enforceability of a city's water pollution program pending

TNRCC approval. Every word excluded from a statute must be presumed to have been excluded

for a purpose. Cameron , 618 S.W.2d at 540 . Therefore, we conclude that section 26.177(c) does

not mandate that a municipal water pollution and abatement program can only become effective

and enforceable until approved by the TNRCC. Any intent to render such ordinances void

pending TNRCC approval has not been made with "unmistaken clarity." See LCRA , 523 S.W.2d

at 645 . In concluding otherwise, the trial court erred.

In any event, section 26.177(c) of the Water Code, which requires water pollution

and abatement programs to be submitted to the TNRCC for review and approval, only applies to

programs enacted pursuant to Texas Water Code sections 26.177(a) and (b). In our discussion

under point of error three, we concluded that there exists independent statutory authority apart

from section 26.177 of the Water Code to enact the Ordinance. Therefore, section 26.177(c)'s

requirements of TNRCC approval are irrelevant to the issues on appeal. We sustain the City's

second point of error.

Applicability of Zoning Statutes

In points of error six through ten, the City complains that the trial court erred in

its conclusions regarding the applicability of Local Government Code sections 212.002 and

212.003 to the Ordinance.

Local Government Code section 212.002 provides:

After a public hearing, the governing body of a municipality may adopt rules

governing plats and subdivisions of land within the municipality's jurisdiction to

promote the health, safety, morals, or general welfare of the municipality and the

safe, orderly, and healthful development of the municipality.

Tex. Loc. Gov't Code Ann. § 212.002 (West 1988).

Local Government Code section 212.003 provides in pertinent part:

(a) The governing body of a municipality by ordinance may extend to the

extraterritorial jurisdiction of the municipality the application of municipal

ordinances adopted under Section 212.002 and other municipal ordinances

relating to access to public roads. However, unless otherwise authorized by

state law, in its extraterritorial jurisdiction a municipality shall not regulate:

(1) the use of any building or property for business, industrial, residential, or

other purposes;

(2) the bulk, height, or number of buildings constructed on a particular tract

of land;

(3) the size of a building that can be constructed on a particular tract of land,

including without limitation any restriction on the ratio of building floor

space to the land square footage; or

(4) the number of residential units that can be built per acre of land.

Tex. Loc. Gov't Code Ann. § 212.003 (West Supp. 1996).

Tracking the language of Local Government Code section 212.003(a)(1)-(4), the

trial court submitted a jury question which asked whether the Ordinance regulated certain building

specifications as enumerated in the statute. The jury answered that the Ordinance did.

The trial court concluded that (1) Local Government Code sections 212.002 and

212.003 applied to the Ordinance; (2) the Ordinance was enacted without a public hearing in

violation of section 212.002; (3) the Ordinance regulated the development of buildings in the

City's extraterritorial jurisdiction in violation of section 212.003(a)(1)-(4); and therefore (4) the

Ordinance was void.

In point of error six, the City argues that the trial court erred in concluding that

sections 212.002 and 212.003 apply to the Ordinance. In point of error seven, the City argues

that the court erred in concluding that the "public hearing" requirement of section 212.002

prevented the use of the initiative and referendum process to adopt the Ordinance. In point of

error eight, the City argues that the trial court erred in concluding that the clause "unless

otherwise authorized by state law" in section 212.003(a) did not excuse the Ordinance from the

prohibitions set forth in section 212.003(a)(1)-(4). In point of error nine, the City argues that the

court erred in permitting the jury to construe Local Government Code section 212.003. In point

of error ten, the City argues that the jury's answer is supported by neither legally nor factually

sufficient evidence.

First we must determine whether sections 212.002 and 212.003 apply to the

Ordinance. The construction of a statute is a question of law for the court, and not a question of

fact for the jury. See Cornerstone Bank, N.A. , 879 S.W.2d at 269 . Therefore, we accord no

weight to the jury's finding and consider the issue de novo .

The primary duty of any court in construing a statute is to effectuate the intent of

the Legislature. Seay , 677 S.W.2d at 25 . The intent should be determined by examining the

language used in the statute. Jones , 539 S.W.2d at 350 . A statute should be read as if every

word, phrase, and expression were deliberately chosen for a purpose. Office of Pub. Util.

Counsel , 849 S.W.2d at 868 .

In reviewing a statute, even one that is facially unambiguous, a reviewing court

may consider the legislative history of the statute. Tex. Gov't Code Ann. § 311.023 (3) (West

1988); City of Fort Worth v. Harty , 862 S.W.2d 776, 778 (Tex. App.--Fort Worth 1993, writ

denied). Furthermore, an appellate court is entitled to consider the legislative history of a statute

even if the trial court did not. Ector County v. Hollmann , 901 S.W.2d 687, 688 (Tex. App.--El

Paso 1995, no writ); In re Marriage of Roach , 773 S.W.2d 28, 30 (Tex. App.--Amarillo 1989,

writ denied).

By their express terms, sections 212.002 and 212.003 apply to ordinances that

"govern plats and subdivisions of land." Moreover, the statutes' legislative history suggests that

they concern a city's zoning authority. House Bill 3187, which amended section 212.003,

"prohibits the application of zoning regulations in ETJ areas." Committee on Urban Affairs, Bill

Analysis, Tex. H.B. 3187, 71st Leg., R.S. (1989) (emphasis added). Because Local Government

Code sections 212.002 and 212.003 apply to what are fundamentally zoning statutes, we must next

determine whether the Ordinance is a zoning statute.

The Ordinance's Declaration of Intent states:

The people of the City declare their intent to preserve a clean and safe drinking

water supply, to prevent further degradation of the water quality in Barton Creek,

Barton Springs, and the Barton Springs Edwards Aquifer, to provide for fair,

consistent, and cost-effective administration of the City's watershed protection

ordinances, and to promote the public health, safety, and welfare. The City

recognizes that the Barton Springs Edwards Aquifer is more vulnerable to pollution

from urban development than any other major groundwater supply in Texas, and

that the measures set out in this Division are necessary to protect this irreplaceable

natural resource.

Austin City Code § 13-7-36.3 (1996). The Ordinance is a water pollution control measure.

Unlike zoning statutes, the Ordinance's goal is not to shape urban development. Its end and aim

is to protect Austin area watersheds. Appellees maintain that while the Ordinance's ends might

contemplate water quality control, its means entail land use control. Therefore, appellees argue

that the Ordinance is subject to Local Government Code sections 212.002 and 212.003's

requirements. We disagree.

The statutory grants of authority permitting cities to implement water pollution

control Ordinances in their ETJ do not contain the restrictions found in Local Government Code

sections 212.002 and 212.003. See Tex. Water Code Ann. § 26.177 (b) (West Supp. 1996); Tex.

Loc. Gov't Code Ann. § 401.002 (West 1988). Any non-point source pollution ( i.e., rainwater

runoff) control measure will, by necessity, entail some type of land use control. Therefore, if the

restrictions found in Local Government sections 212.002 and 212.003 applied to all water quality

control ordinances, such restrictions would effectively nullify a city's ability to regulate non-point

source pollution in its extraterritorial jurisdiction. We do not believe the Legislature intended

such a result. We find an Attorney General's Opinion to be instructive on this point.

In Opinion H-802, the Attorney General was asked to consider whether the Texas

Water Quality Board could regulate non-point source pollution through, and condition non-point

source contaminant permits on, land use control measures. The Attorney General concluded that

the Board could not implement land use planning ( i.e. , zoning) regulations because it lacked the

statutory authority to do so. However, the Attorney General concluded that the Board could adopt

land use control measures as a means of implementing its water quality control duties. Therefore,

a water quality control measure can effect land use and still not be considered a land use measure.

See Op. Tex. Att'y Gen. No. H-802 (1976). We find this reasoning persuasive and conclude that

the Ordinance's incidental effects on land use do not make it a rule governing plats and

subdivisions of land as contemplated by Local Government Code sections 212.002 and 212.003.

Because the Ordinance is not a zoning statute, we hold that the provisions of Texas Local

Government Code sections 212.002 and 212.003 do not apply to the Ordinance. We sustain the

City's points of error six through ten.

Propriety of Initiative and Referendum Process

Points of error eleven through thirteen concern the trial court's submitting the

following question to the jury:

Was the subject matter of the SOS Ordinance an improper subject for the initiative

and referendum process?

Instructions and Definitions Initiative and referendum is the process by which

citizens propose legislation to be submitted for approval by the voters in an

election. A subject is improper for the initiative and referendum process if the

voters lack sufficient information, data, and facts so as to enable them to have an

informed judgment on the subject.

Consistent with the instruction, the City offered various pieces of evidence in order

to prove that the voters of Austin were properly informed of the Ordinance's contents. The trial

court refused to admit much of the City's evidence. The jury answered that the Ordinance was

an improper subject for the initiative and referendum process.

In point of error eleven, the City argues that the trial court erred in submitting this

question and its accompanying instructions to the jury. In point of error twelve, the City contends

that the jury's answer is unsupported by legally and factually sufficient evidence. In point of error

thirteen, the City argues that the trial court erred in refusing to admit various pieces of evidence

demonstrating that the voters of Austin were intelligently apprised of the Ordinance's contents.

The City contends that the trial court erred in asking the jury whether the

Ordinance's subject matter was too technical for the initiative and referendum process. Appellees

respond that a line of cases holds that certain matters are improper subjects for the initiative and

referendum process because of their complexity. See Dallas Ry. Co. v. Geller , 271 S.W. 1106,

1107 (Tex. 1925); Southwestern Bell Tel. & Tel. Co. v. Dallas , 134 S.W. 321, 323 (Tex. 1911);

Hancock v. Rouse , 437 S.W.2d 1, 4 (Tex. Civ. App.--Houston [1st Dist.] 1969, writ ref'd n.r.e.);

Hatten v. City of Houston , 373 S.W.2d 525, 540-41 (Tex. Civ. App.--Houston 1963, writ ref'd

n.r.e.); Denman v. Quin , 116 S.W.2d 783, 786 (Tex. Civ. App.--San Antonio 1938, writ ref'd).

These cases notwithstanding, there is no common law rule that certain issues are

too complex and technical to be adopted pursuant to the initiative and referendum process. In

each of the cases the landowners cite, the legislative function was either expressly conferred on

a governmental body exclusively or a prerequisite action required by law (such as a public

hearing) had not taken place. The Supreme Court of Texas has noted this key distinction in Glass

v. Smith , 244 S.W.2d 645 (Tex. 1951):

In all Texas cases called to our attention in which it has been held that the people

of a municipality could not validly exercise a delegated legislative power through

initiative proceedings, it will be found that authority to act was expressly conferred

upon the municipal governing body exclusively, or there was some preliminary duty

such as the holding of hearings , etc., impossible of performance by the people in

an initiative proceeding, by statute or charter made a prerequisite to the exercise

of the legislative power .

Id. at 653 (emphasis added).

In the instant cause, we have already determined that no public hearing was

required as a prerequisite to enact the Ordinance. Moreover, there is no law, state or local, which

reserves the adoption of watershed pollution control ordinances exclusively to a governmental

body such as the City Council. Therefore, the trial court erred in asking the jury whether the

Ordinance's subject matter was too technical for the initiative and referendum process. We

sustain point of error eleven. Because the court should not have submitted this issue to the jury,

we need not reach the merits of points of error twelve and thirteen.

Independent, Unchallenged Grounds to Support the Trial Court's Judgment

Appellees assert that there exist independent grounds, unchallenged on appeal, to

support the court's judgment finding that the Ordinance is null and void. Therefore, appellees

argue that, even if the City were to prevail on all of its points of error challenging the trial court's

judgment, the judgment could still be affirmed on the unchallenged grounds. Specifically,

appellees refer to three challenges to the Ordinance which they allege the City has not refuted on

appeal.

First, appellees argue that insofar as the Ordinance shortens the duration for

previously approved permit applications, the Ordinance is void because it violates Government

Code section 481.143. The version of the statute in effect at the time of the dispute provides in

pertinent part:

The approval, disapproval, or conditional approval of an application for a permit

shall be considered by each regulatory agency solely on the basis of any orders,

regulations, ordinances, or other duly adopted requirements in effect at the time

the original application for the permit is filed. If a series of permits is required for

a project, the orders, regulations, ordinances, or other requirements in effect at the

time the original application for the first permit in that series is filed shall be the

sole basis for consideration of all subsequent permits required for the completion

of the project.

Act of June 16, 1987, 70th Leg., R.S., ch. 374, § 1, 1987 Tex. Gen. Laws 1838 -39 (codified

1989) (amended 1995) (current version at Tex. Gov't Code Ann. § 481.143 (3) (West Supp.

1996)). (5) The original version of this statute was made effective September 1, 1987.

The Ordinance provides that, in affected watersheds, previously approved permits

expire on the earlier of one year after the effective date of the Ordinance or two years after the

date of the prior approval, whichever is later, subject to a 180-day period to obtain approval of

a final plat application filed before the expiration of the preliminary plan. Similarly, previously

approved site plans for projects in the affected watersheds expire on the earlier of August 8, 1993,

or three years after the prior approval, unless applications for the building permits for all

buildings are filed before the expiration date and thereafter approved and continued, with a

certificate of occupancy issued two years later. See Austin City Code § 13-7-36.7 (1996).

Appellees argue that, insofar as the Ordinance shortens the duration of previously

approved permits, it violates Government Code section 481.143 because it allows a permit to be

based on law enacted after the permit application was filed. Appellees' argument is misplaced

because the version of Government Code section 481.143 in effect at the time of the dispute did

not prevent the Ordinance from shortening the duration of previously approved permits.

Government Code section 481.143 was amended in 1995, expressly adding a provision that,

"[o]nce an application for a project has been filed, a regulatory agency shall not shorten the

duration of any permit required for the project." Tex. Gov't Code Ann. § 481.143 (West Supp.

1996). The 1995 amendments to section 481.143 changed the law and did not simply clarify it.

See Williamson Pointe Venture v. City of Austin , 912 S.W.2d 340, 345 (Tex. App.--Austin 1995,

no writ) (holding that 1995 amendments to Government Code section 481.143 changed, not

clarified, scope of statute). Because the version of section 481.143 in effect at the time did not

prohibit the Ordinance from shortening the duration of previously issued permits, the judgment

may not stand on such a basis.

Second, appellees contend that the Ordinance is void because it usurps the

TNRCC's authority, in violation of Water Code section 26.023, by setting numerical water quality

standards for the amount of contaminants found in runoff water. Water Code section 26.023

provides that the TNRCC has the sole and exclusive authority to set water quality standards for

all water in the State. Tex. Water Code Ann. § 26.023 (West Supp. 1996). The TNRCC defines

"standards" as, "[t]he designation of . . . numerical criteria deemed necessary to protect [water

bodies' desirable] uses." 31 Tex. Admin. Code § 307.3 (31) (West 1995). The Ordinance

requires water quality controls such that the amount of certain contaminants found in runoff water

in the affected areas does not increase from its former levels. Appellees argue that in mandating

that levels of contaminants not increase, the Ordinance imposes a numerical standard. We

disagree. The Ordinance does not set numerical standards. Nowhere does the Ordinance establish

a numerical quantity for contaminants; the Ordinance is devoid of numerals in this context.

Prohibiting an increase does not equal imposing a numerical quota. Therefore, the judgment

cannot stand on such a basis.

Third, appellees contend that the Ordinance violates the constitutional guarantees

of substantive due process and equal protection because its means are not rationally related to its

goals. (6) Substantive due process demands that ordinances shall not be "arbitrary," "unreasonable,"

or "capricious," or, in other words, an ordinance's means shall have a real and substantial relation

to its objective. See, e.g., Chandler , 906 S.W.2d at 202 . Similarly, under rational basis review,

to pass equal protection scrutiny, an ordinance's classification must be rationally related to a

legitimate state interest. Appellees claim that the Ordinance is unconstitutional because it places

burdens upon landowners unjustified by a legitimate state interest.

There is a strong presumption in favor of the validity of municipal legislative

action, and the burden of proof is on the parties seeking to invalidate it. Haynes v. City of

Abilene , 659 S.W.2d 638, 640 (Tex. 1983). When reviewing for constitutional unreasonableness,

the judiciary accords great deference to the legislative action and should not substitute its own

public policy judgments for that of the enacting body. See Edgewood Indep. Sch. Dist. v. Meno ,

893 S.W.2d 450, 459 (Tex. 1995). The Ordinance's goal is to protect the Barton Creek

Watershed, an invaluable natural resource for the entire community. The citizens of Austin have

determined that the most efficient way to protect the watershed is by limiting the amount of

impervious cover and contaminants in runoff rainwater in the Barton Creek Watershed zone.

Clearly, measures taken to reduce the amount of runoff rainwater contaminants filtering into the

aquifer are rationally related to the goal of protecting the watershed from pollution. Given the

deferential standard of review, we refuse to assume a legislative function and reevaluate the public

policy considerations behind the Ordinance. We hold that the Ordinance does not offend either

substantive due process or equal protection guaranties. Contrary to appellees' assertions, they

have failed to identify independent grounds, unchallenged on appeal, to support the court's

judgment finding that the Ordinance is null and void.

Applicability of the Ordinance to Circle C Land Corp.'s Property

In point of error five, the City argues that the court erred in rendering the following

order:

FURTHER, ORDERED, ADJUDGED, DECLARED and FINALLY DECREED

that any permit required by the Defendant City of Austin for Plaintiff Circle C

Corp.'s development of its property wherever located shall be considered solely

on the basis of the regulations and ordinances in effect at the time the original

application for preliminary subdivision approval was filed for any such property;

. . . .

The order is premised on Government Code section 481.143. The version of the statute in effect

at the time of the dispute provides in pertinent part:

The approval, disapproval, or conditional approval of an application for a permit

shall be considered by each regulatory agency solely on the basis of any orders,

regulations, ordinances, or other duly adopted requirements in effect at the time

the original application for the permit is filed. If a series of permits is required for

a project, the orders, regulations, ordinances, or other requirements in effect at the

time the original application for the first permit in that series is filed shall be the

sole basis for consideration of all subsequent permits required for the completion

of the project.

Act of June 16, 1987, 70th Leg., R.S., ch. 374, § 1, 1987 Tex. Gen. Laws 1838 -39 (codified

1989) (amended 1995) (current version at Tex. Gov't Code Ann. § 481.143 (3) (West Supp.

1996)). The original version of this statute was made effective September 1, 1987.

Circle C Land Corp. applied for preliminary subdivision approval permits on

various tracts of land. Some of these permit applications were filed before September 1, 1987,

and some after. The City argues that the trial court erred by applying section 481.143

retroactively to Circle C Land Corp.'s permit applications filed before September 1, 1987.

In order for section 481.143 to affect permit applications field before September

1, 1987, the statute must be applied retroactively. The Code Construction Act provides that, "a

statute is presumed to be prospective in its operation unless expressly made retroactive. " Tex.

Gov't Code Ann. § 311.021 (West 1988) (emphasis added). Furthermore, "Texas law militates

strongly against the retroactive application of laws. Houston Indep. Sch. Dist. v. Houston

Chronicle , 798 S.W.2d 580, 585 (Tex. App.--Houston [1st. Dist.] 1990, writ denied). Nowhere

does section 481.143, expressly or impliedly, indicate that it has retroactive effect. Indeed, the

statute was amended in May 1995 and the changes were expressly made retroactive to September

1, 1987, the effective date of the original act. If legislation significantly differs from existing law,

the later legislation changes rather than clarifies existing law. See Tijierina v. City of Tyler , 846

S.W.2d 825, 828 (Tex. 1992); Williamson Pointe Venture , 912 S.W.2d at 345 . Therefore,

because the 1995 version was expressly changed to make the statute retroactive, by implication,

the 1987 version, controlling in the instant cause, was not intended to be retroactive.

Because section 481.143 became effective September 1, 1987, applications for the

"first permit in [a] series of permits" must have been filed after September 1, 1987, in order to

take advantage of the statute. Therefore, only the first of a series of permit applications filed

between September 1, 1987, and August 10, 1992, the effective date of the Ordinance, are not

subject to the Ordinance's provisions.

Furthermore, the City argues that the trial court's order extends beyond the scope

of the pleadings, proof, and jury's answer. Once again the trial court's order states:

FURTHER, ORDERED, ADJUDGED, DECLARED and FINALLY DECREED

that any permit required by the Defendant City of Austin for Plaintiff Circle C

Corp.'s development of its property wherever located shall be considered solely

on the basis of the regulations and ordinances in effect at the time the original

application for preliminary subdivision approval was filed for any such property;

. . . .

(emphasis added). Thus, the judgment refers to permits required for the development of any

property owned by Circle C Land Corp. The City points out, however, that section 481.143

concerns permits to develop projects , not property . (7) A "project" applies to a single, specific

endeavor to be undertaken on a piece of property. See Tex. Gov't Code Ann. § 481.142 (3) (West

Supp. 1996). "Property" could refer to any and all projects to be undertaken on that property.

Therefore, according to the judgment as written, the City argues that Circle C Land Corp. could

(1) obtain a preliminary site approval permit for its "property" in 1985, then (2) abandon its

originally intended project for that property, and (3) start a new and different project for the same

property in 2001 that would be subject to the rules and regulations in effect in 1985. We agree.

To the extent the judgment refers to property instead of projects, it is beyond the scope of section

481.143 and therefore in error.

Finally, the City argues that, as written, the judgment applies to all of Circle C

Land Corp.'s property wherever located , and arguably whenever acquired. The City notes that

the landowners' pleadings only concern certain parcels of property owned at the time of trial.

Therefore, the City argues, to the extent the judgment refers to property wherever, and arguably

whenever, located, the judgment exceeds the scope of the pleadings. See Cunningham v. Parkdale

Bank , 660 S.W.2d 810, 813 (Tex. 1983).

This Court has the authority to modify a judgment and render judgment that the

trial court should have entered when justice requires. See Tex. R. App. P. 81(c); New Braunfels

Nat'l Bank v. Odiorne , 780 S.W.2d 313, 320 (Tex. App.--Austin 1989, writ denied). Therefore,

we sustain the City's fifth point of error and modify the portion of the judgment below pertaining

to section 481.143 of the Government Code as follows:

FURTHER, ORDERED, ADJUDGED, DECLARED and FINALLY DECREED

that any permit required by the Defendant City of Austin for Plaintiff Circle C

Land Corp.'s development of a project on property that is the subject of this suit

shall be considered solely on the basis of the regulations and ordinances in effect

at the time the original application for preliminary subdivision approval was filed

for any such project, so long as such permit application was filed after September

1, 1987; . . . .

Attorney's Fees

In point of error fourteen, the City contends that, in the event that this Court were

to reverse the judgment of the trial court, we should reverse the award of attorney's fees as well.

The City argues that it would be unreasonable to uphold an award of attorney's fees premised on

a substantial victory in the trial court if we were to largely reverse that victory on appeal.

The award of attorney's fees lies within the discretion of the trial court. Oake v.

Collin County , 692 S.W.2d 454, 455 (Tex. 1985). In the instant cause, the trial court's judgment

expressly conditioned the award of attorney's fees "on the successful defense of this judgment in

material respects in the event of appellate review . . . ." (emphasis added). On appeal, we have

reversed nearly all of the relief granted to appellees in the trial court's judgment. Consequently,

appellees have not successfully defended the trial court's judgment in material respects.

Therefore, according to the express terms of the trial court's judgment, we reverse the award of

attorney's fees and render judgment that appellees take nothing in attorney's fees. We sustain the

City's point of error fourteen.

CONCLUSION

We overrule the Coalition's first point of error and dismiss its remaining points of

error. We sustain all of the City's points of error. We reverse that portion of the trial court's

final judgment declaring the Ordinance void and prohibiting its application against appellees'

property. We render judgment that the Ordinance is a valid legislative act and need not be

approved by the TNRCC to become effective and enforceable. In accordance with this opinion,

we modify the judgment of the trial court as it pertains to the law governing Circle C Land

Corp.'s permit applications and affirm that portion of the judgment as modified. Furthermore,

we reverse the trial court's award of attorney's fees and render judgment that appellees take

nothing in attorney's fees.

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and Kidd

Modified, and as Modified, Affirmed in Part; Reversed and Rendered in Part

Filed: July 31, 1996

Publish

1. The City Council did not enact the Ordinance exactly as ratified in the referendum

election. However, the Intervenors in this cause, who are the successors in interest to the

Steering Committee, have not complained on appeal that the Ordinance as enacted does

not adequately conform to the version enacted in the referendum election.

2. We note that in Southern Canal , the statute called upon the judiciary to review an

agency order. In the instant cause, the statute calls upon the judiciary to review a legislative

action. We find this prospect equally troubling.

3. Unlike subsection (d), by its express terms subsection (c) applies only to programs

established pursuant to subsections (a) and (b). Therefore, if the Ordinance was established

pursuant to some other authority or directive, subsection (c)'s requirements would not apply.

However, for the purposes of our discussion, unless otherwise indicated, we will assume,

without deciding, that the Ordinance is subject to the requirements of subsection (c).

4. Texas Government Code section § 311.023(4) authorizes a court to construe "former

statutory provisions, including laws on the same or similar subjects" in construing a

statute. Tex. Gov't Code Ann. § 311.023 (4) (West 1988).

5. All references to this statute will be to the version in effect at the time of the dispute

unless otherwise indicated.

6. Appellees do not argue which standard of review is appropriate in evaluating their

equal protection argument: "strict scrutiny" or "rational basis." Instead, they merely

argue that the Ordinance's means must have a "rough proportion" to its goals.

Appellees' argument most closely resembles the rational basis standard of constitutional

review. Therefore, we shall employ such a standard.

Moreover, appellees do not distinguish their due process and equal protection

arguments. Instead, appellees make the consolidated argument that the Ordinance

offends both constitutional provisions because its means do not rationally relate to its

ends.

7. "Permit" means a license, certificate, approval, registration, consent, permit, or

other form of authorization required by law, rule, or regulation, ordinance that must be

obtained in order to perform a project for which the permit is sought. Tex. Gov't Code

Ann. § 481.142 (2) (West Supp. 1996).