# City of San Angelo, Texas and Menard County Water Control and Improvement District No. 1 v. Texas Natural Resource Conservation Commission

> Texas Court of Appeals, 3rd District (Austin) · December 5, 2002

URL: https://www.frixlaw.com/law-library/cases/2864580

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** December 5, 2002
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2864580

## How later opinions describe it (automated extraction)

- holding that tailored notice is not required for individuals with specific interest in proposed action, only general notice to the public

## Opinion text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00289-CV

City of San Angelo, Texas and Menard County Water Control and
Improvement District No. 1, Appellants

v.

Texas Natural Resource Conservation Commission, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. GV2-01207, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

This case involves an Open Meetings Act challenge to the December 5, 2001, meeting of

the Texas Natural Resource Conservation Commission (Athe Commission@).1 Appellants City of San

Angelo and Menard County Water Control and Improvement District No. 1 appeal the trial court=s denial

of their request for mandamus, refusal to grant an injunction, and finding that the Commission provided

1
By statute effective September 1, 2001, the legislature changed the name of the Texas Natural
Resource Conservation Commission to the Texas Commission on Environmental Quality, to be effective
January 1, 2004. The statute granted the TNRCC authority to adopt a timetable for phasing in the change
of the agency's name, so that until January 1, 2004, the agency may perform any act authorized by law
under either title. See Act of April 20, 2001, 77th Leg., R.S., ch. 965, ' 18.01, 2001 Tex. Gen. Laws
1985. On September 1, 2002, the agency began using its new name, while continuing to recognize the
former. Because the parties have referred to the agency as the Commission in the briefs and at oral
argument, we will as well in this opinion.
adequate notice to the public pursuant to the Open Meetings Act. See Tex. Gov=t Code Ann. '' 551.001-

.146 (West 1994 & Supp. 2002). Appellants contend that the Commission=s posted agenda violated the

notice requirements of the Open Meetings Act because it was both vague and insufficient. Therefore, they

argue, the trial court erred in not enjoining the Commission from acting under the interim orders adopted at

the meeting. Because the agenda items were sufficiently specific to satisfy the Open Meeting Act=s notice

requirements, we will affirm the trial court=s judgment.

BACKGROUND

This dispute arises from a series of petitions requesting that the Commission appoint

watermasters for the San Saba River and the Concho River Basin.2 Chapter 11 of the Water Code allows

the Commission to appoint a Awatermaster.@ Tex. Water Code Ann. ' 11.452 (West 1994). A

watermaster is a Commission employee who administers and enforces water right decisions in a given

geographic area. See Tex. Water Code Ann. '' 11.325, 11.333 (West 1994). The Commission can

appoint a watermaster on either the petition of twenty-five or more holders of water rights in an area, or on

its own motion. Tex. Water Code Ann. '11.451 (West 1994). Upon receiving a petition, the Commission

must hold an evidentiary hearing to determine if a threat exists to the rights of senior water right holders in

2
The Commission received three petitions for appointment of a watermaster on the Concho River
and assigned them Docket No. 2000-0344-WR. The first petition was signed primarily by persons
claiming to be domestic and livestock water users. The second petition was signed by thirty-four
individuals who were paper water right holders. The third petition was signed by three paper right holders
and approximately 104 persons claiming to be domestic and livestock water users. The Commission also
received a petition concerning the San Saba River and assigned it Docket No. 2001-0993-WR. This
petition was signed by twelve individuals who were paper water right holders and forty-three who were
domestic and livestock water users.

2
the river basin sufficient to require the Commission to appoint a watermaster. Tex. Water Code Ann. '

11.452(a), (c).

Instead of conducting this evidentiary hearing during a full commission meeting, the

Commission may refer the matter to the Natural Resource Conservation Division of the State Office of

Administrative Hearings (ASOAH@). Tex. Gov=t Code Ann. ' 2003.047 (West 2000). In the instant case,

however, before referring the filed petitions for an evidentiary hearing, the Commission chose to address in

an open meeting whether domestic and livestock water users were water right holders for purposes of

signing a petition requesting the appointment of a watermaster.3 The executive director of the Commission

filed a letter with the Commission=s Office of Chief Clerk requesting that the Commission consider four legal

issues regarding the filed petitions before sending the fact issues to SOAH for evidentiary hearings:

1. Are persons who take and use state water without a permit for domestic and livestock
use (d&ls) included in the designation in Tex. Water Code ' 11.452(b) as Apersons

3
Because both water right holders and domestic and livestock users of water diverted from Texas
streams signed these petitions, the petitions= validity depended on whether the water code recognizes the
domestic and livestock water users as water right holders. The Commission can issue to persons written
water rights (permits or certificates of adjudication). These persons are then classified as Apaper water right
holders.@ See Tex. Water Code Ann. '' 11.121-.186 (West 1994). By contrast, domestic and livestock
water users claim rights to use state water for domestic and livestock purposes based on either a statutory
exemption or common law right. See Tex. Water Code Ann. ' 11.142 (West 1994).

3
who hold water rights in the river basin or segment of the river basin@ who may
therefore present evidence at the hearing?

2. Are d&ls Asenior water right holders@ under Tex. Water Code '' 11.451 and
11.452(c)?

3. Are d&ls Aholders of water rights@ under Tex. Water Code ' 11.329 who may be
assessed fees to pay for the watermaster?

4. For the San Saba petition, are d&ls Aholders of water rights@ under Tex. Water Code
' 11.451 who may petition for a watermaster?

The Commission sent a copy of the executive director=s letter to the persons most directly

affected, including all petitioners and paper water right holders for both rivers. Appellants are governmental

entities charged with authority and responsibility for water-related matters, and therefore received a copy.

The letter stated that the Commission intended to consider the executive director=s legal issues and consider

the executive director=s request to send the petitions to SOAH for an evidentiary hearing at the next

meeting.4 The letter also described the petitions the Commission had received and catalogued whether the

signatories of the petitions were water right holders or domestic and livestock water users. Most

importantly, the recipients were invited to submit legal briefs on the four legal issues prior to the meeting.

The City of San Angelo chose to respond to the letter by submitting a brief addressing the four issues.

4
The Commission intended to discuss the petitions on October 10, but, because of time
constraints, delayed consideration until the December 5 meeting. The agenda for the December 5 meeting
constituted the second time the identical agenda notices were published.

4
Having provided exhaustive notice to the specially interested parties, the Commission also

provided notice to the general public that it intended to address these petitions for watermaster appointment

and the related legal issues at its next meeting. Before the December 5 meeting, the Commission delivered

its agenda to the Secretary of State, who published it in the November 26 Texas Register pursuant to the

statutory notice requirements. See Tex. Gov=t Code Ann. '' 551.044, .048 (West Supp. 2002). The

agenda included the following paragraphs:

Item 1. Docket No. 2000-0344-WR. Consideration of the four legal issues raised by the
Executive Director with regard to the petitions for a watermaster for the Concho River and
its tributaries under Texas Water Code ch. 11. These legal issues concern whether
domestic and livestock users on the Concho River and its tributaries are Awater right
holders@ and Asenior water right holders.@ The Concho River and its tributaries cover Irion,
Tom Green, Concho, Runnels, Coke, Schleicher, and Sterling Counties.

Item 2. Docket No. 2001-0993-WR. Consideration of the four legal issues raised by the
Executive Director with regard to the petitions for a watermaster for the San Saba River
and its tributaries under Texas Water Code ch. 11. These legal issues concern whether
domestic and livestock users on the Concho River [sic] and its tributaries and Awater right
holders@ and Asenior water right holders.@ The San Saba River and its tributaries cover
Schleicher, Menard, McCulloch, Sutton, Mason, and San Saba Counties.5

On December 10, 2001, the Commission issued two interim orders reflecting the actions

taken at the December 5 meeting. The interim order regarding the Concho River Basin read:

(1) the petitions were filed by 25 or more water right holders on the Concho River;

5
The second agenda item initially addresses the Commission=s intent to consider the San Saba
petition. In the second of three mentions of the river in question, however, the word AConcho@ was
inadvertently substituted for ASan Saba.@ Despite this clerical error, it is clear that, read together, the two
agenda items indicate that the same issues were to be discussed regarding both river areas.

5
(2) domestic and livestock users are affected persons who may participate in and present
evidence at a hearing on the petitions;

(3) there is no statutory authority to require the payment of fees by domestic and livestock
users for watermaster operations; and

(4) the petitions are referred to SOAH for a hearing on whether the rights of senior water
rights holders in the basin or segment of the basin are threatened.6

Appellants filed suit seeking both mandamus and injunction in the Travis County District

Court, complaining that the interim orders manifested a violation of the Open Meetings Act because the

agenda for the meeting at which they were adopted failed to put the public on notice that the Commission

would Atake action.@ The trial court, finding that the notice satisfied the Open Meetings Act requirements,

denied appellants relief. Appellants argue that the trial court erred in determining that the Commission=s

notice to the public was sufficient. They contend that the notice was inadequate when read in light of the

Commission=s interim orders. The Commission counters that the agenda items adequately described the

Asubject@ of the meeting as the Open Meetings Act requires and, therefore, that the interim orders were

within the scope of their notice.

DISCUSSION

6
The interim order concerning the San Saba River is substantially similar to the Concho River Basin
interim order. However, the Commission did not decide whether the petition had been filed by twenty-five
or more water right holders. Rather, the Commission ordered that Athe petition merits a hearing at SOAH.@

6
Because the content of the notice is undisputed, determining its adequacy is a question of

law. Rettberg v. Texas Dep=t of Health, 873 S.W.2d 408, 413 (Tex. App.CAustin 1994, no writ). In

reviewing notices under the Open Meetings Act, we must determine if the notice was sufficiently specific to

alert the general public to the topic to be considered. City of San Antonio v. Fourth Court of Appeals,

820 S.W.2d 762, 765 (Tex. 1991). Appellants argue that: (1) because Aconsideration@ does not mean

Aaction@ these agenda items did not give notice of the possibility that the Commission would take action; and

(2) the Commission gave a narrow and restricted notice which failed to fairly identify the substance of the

four legal issuesCtherefore, the subject-matter of the meeting was limited to those issues. We disagree.

We will first consider whether the Commission=s actions exceeded the notice given.

Appellants first challenge the agenda items= descriptions of the action the Commission would

take at the meeting; in essence, they challenge the use of the verb Ato consider.@ The Open Meetings Act

requires that the Commission give Awritten notice of the date, hour, place, and subject of each meeting

held.@ Tex. Gov=t Code Ann. ' 551.041 (West 1994). Most cases addressing the statutory notice

requirement concern whether the subject-matter of a meeting has been adequately identified. See, e.g.,

Cox Enter., Inc. v. Board of Tr. of the Austin Indep, Sch. Dist., 706 S.W.2d 956 (Tex. 1986) (the

AOpen Meetings Act requires a full disclosure of the subject matter of the meetings@); Hays County Water

Planning P=ship v. Hays County, 41 S.W.3d 174, 180 (Tex. App.CAustin 2001, pet. denied) (holding

that notice must convey substance of meeting); Friends of Canyon Lake, Inc. v. Guadalupe-Blanco

River, No. 03-02-00221-CV, slip op. at 8, 2002 Tex. App. LEXIS 7756, at *29 (Tex. App.CAustin

Oct. 31, 2002, no pet. h.) (holding notice sufficient even though agenda description Amight not inform the

7
casual reader of the precise consequences@). When the notice specifically discloses the subject to be

considered at the upcoming meeting, the statute=s notice requirement is met and the described meeting is

considered an open meeting where the Commission can take final action, decide, or vote on a matter. See

Cox Enter., 706 S.W.2d at 959; Tex. Gov=t Code Ann. ' 551.102 (West 1994).

The Texas Supreme Court has addressed the extent to which a governmental entity must

specify the type of action it will take in an open meeting in Texas Turnpike Authority v. City of Fort

Worth, 554 S.W.2d 675, 676 (Tex. 1977). Texas Turnpike involved a challenged notice which stated

that the Texas Turnpike Authority would Aconsider a request . . . to determine feasibility of a bond issue to

expand and enlarge the Dallas-Fort Worth Turnpike.@ Id. (emphasis added). After Aconsidering@ the

request, the Authority authorized a feasibility study and expended funds for the study. The City sued to

enjoin the study and expenditure of funds, claiming that the notice should have stated that the board was

reversing its prior declaration that the turnpike would be a toll-free road. The court rejected this argument,

pointing out that it was not necessary Ato state all of the consequences which may necessarily flow from the

consideration of the subject stated.@ Id. Initiating the feasibility study was a probable consequence of

considering the request; the court allowed the Turnpike Authority to proceed with its study although its

agenda had only provided that it would Aconsider a request.@7 Id.

7
Appellants argue that Texas Turnpike is no longer the law. We disagree. Although we now

8
apply a literal compliance standard under the Open Meetings Act, the principle established in Texas
Turnpike regarding the necessity of giving notice of all of a meeting=s potential consequences is still
consistently applied. See Cox Enter., Inc. v. Board of Tr. of the Austin Indep, Sch. Dist., 706 S.W.2d
956, 958 (Tex. 1986); Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River, No. 03-02-00221-
CV, slip op. at 7, 2002 Tex. App. LEXIS 7756, at *25 (Tex. App.CAustin Oct. 31, 2002, no pet. h.).

9
Appellants make a similar argument that by using the word Aconsideration@ in its agenda, the

Commission has constrained its ability to act. Appellants read the word Aconsideration@ to preclude the

possibility of Aaction@; they would require the Commission=s agenda to have included a specific statement

that the Commission would Atake action@ during the December 5 meeting. We do not read Aconsideration@

so narrowly. AConsideration@ necessarily encompasses Aaction.@ The word Aconsideration@ alone was

sufficient to put the general public on notice that the Commission might act during the meeting. As in Texas

Turnpike, the question is not whether the Commission has detailed all possible outcomes of addressing a

particular topic, but whether the public is notified that the topic will be part of the meeting. The Open

Meetings Act does not require the Commission to list the precise consequences of the consideration of a

topic. Friends of Canyon Lake, slip op. at 8, 2002 Tex. App. LEXIS 7756, at *29. We hold, then, that

the Commission did not have to include additional language indicating that it might act on issues under

consideration. Next, we address whether the agenda is specific enough to alert a reader to the subject-

matter of the meeting.

Appellants argue that the Commission considered and acted upon issues at the meeting that

were outside the scope of the subject-matter referenced in the agenda. They contend that the agenda only

gives notice that the meeting would address four legal issues raised by the executive director and that the

Commission considered and decided other, more general issues with regard to the watermaster petitions. In

reviewing notices under the Open Meetings Act, we must ensure that the notice fulfills the act=s primary

purposes of enabling public access to and increasing public knowledge of government decision-making.

City of San Antonio, 820 S.W.2d at 765. The Open Meetings Act Asafeguard[s] the public=s interest in

10
knowing the workings of its governmental bodies.@ Cox Enter., 706 S.W.2d at 960. The Act=s intent is to

give the public opportunity to inform itself of the topic of each given meeting. Rettberg, 873 S.W.2d at

411. The notice has to be sufficiently descriptive to alert readers to the particular issue the governing body

will address. Hays County, 41 S.W.3d at 180.

Appellants argue that: (1) the notice was not sufficient because it did not adequately

describe the legal issues the Commission would consider and (2) the notice did not indicate the Commission

would consider the ultimate validity of the petitions.8 They contend that the Commission=s agenda only

provided a vague description of an intent to consider unspecified legal issues. Appellants argue that the

Commission could have provided notice that it would consider the watermaster petitions generally, but

instead it narrowed its subject matter to just the legal issues surrounding the petitions. Because of its

specificity, appellants argue that the agenda did not give notice that the Commission would consider the

watermaster petitions generally. We do not read the agenda=s description so narrowly.

Our inquiry into the sufficiency of notice is whether a reader was alerted to the substance of

the proposed meeting. See Hays County, 41 S.W.3d at 180. The agenda informs readers that for the

8
We note that each appellant was given specific notice regarding all pertinent issues; the City of
San Angelo even accepted the opportunity to brief these issues before attending the meeting. Appellants
now complain that the public did not receive specific notice. See City of San Antonio v. Fourth Court
of Appeals, 820 S.W.2d 762, 765 (Tex. 1991) (holding that tailored notice is not required for individuals
with specific interest in proposed action, only general notice to the public).

11
Concho and San Saba River: (1) petitions for watermaster had been filed; (2) the executive director had

raised four legal issues regarding these petitions; (3) these legal issues were governed by chapter 11 of the

Water Code; (4) the legal issues concerned whether domestic and livestock water users were Awater right

holders@ and Asenior water right holders;@ and (5) the rivers and tributaries covered by the petitions.

Appellants argue that the agenda was restricted to: Aconsideration of four legal issues raised by the

Executive Director.@ However, the agenda=s description of the topic does not end with this phrase, but

instead continues: Awith regard to the petitions for a watermaster.@ Read in its entirety, the agenda

sufficiently notifies an interested reader that the Commission would be considering issues related generically

to the watermaster petitions at the December 5 meeting.

Although the agenda could have been less specific, its specificity does not make the notice

less informative than if the Commission had omitted the additional descriptions. As the supreme court

recognized in City of San Antonio, there can be situations where the degree of specificity Awould so

overwhelm readers that it would prove even less informative@ than a general notice; the present agenda

items do not reach that point. City of San Antonio, 820 S.W.2d at 766. Therefore, we hold that the

agenda items were sufficiently descriptive to inform a reader of the broad topics to be addressed at the

meeting and that it was not necessary for the agenda to enumerate the legal issues in the public agenda as it

had done in the mailed notices.

Appellants attempt to bolster their challenge to the description of the meeting=s subject-

matter by arguing that, because it referred the petitions to SOAH for a hearing, the Commission is now

precluded from arguing that the petitions were not sufficient to warrant a hearing on the merits. In

12
challenging the interim orders specifically, appellants would confer on the Commission=s decision to refer to

SOAH its questions regarding the watermaster petitions the binding legal effect of a final agency action. We

disagree with this assessment. An evidentiary hearing before SOAH is a means for determining the

underlying facts in an administrative dispute while protecting the rights of all parties. The administrative law

judge may consider any issue he determines material and supported by evidence; he can revisit any issue

provisionally resolved by the Commission. Tex. Gov=t Code Ann. ' 2003.047(e), (f)(1)-(2). In referring

the question, the Commission actually afforded appellants= interests greater procedural protection.

Because we hold that the agenda was sufficient, we overrule appellants= issue.

CONCLUSION

Having overruled appellants= issues, we hold that the notice for the December 5, 2001,

meeting was sufficient to meet the requirements of the Open Meetings Act. Accordingly, we affirm the trial

court=s judgment.

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed

Filed: December 5, 2002

Publish

13
14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2864580. Public record. Not legal advice.