Austin Court of Appeals holds SOAH notice provision not jurisdictional

Texas Commission on Environmental Quality, et al. v Denbury Onshore, LLC, et al. 03-11-00891-CV (Tex. App. – Austin, July 3, 2014)

This is a suit involving the granting of a permit by the TCEQ for wastewater disposal. There is a lot of administrative and procedural matters within the case, but the main one of interest to municipalities is simply the analysis of when a notice provision is considered jurisdictional.

TexCom Gulf Disposal, LLC, submitted an application for underground injection control well permits to the TCEQ to develop a commercial non-hazardous wastewater disposal facility. As part of the application, it sought to use and construct various wells for waste. TexCom asserted it owned the mineral rights, but appellee Sabine was the actual owner. Those rights were later managed by Denbury.  During a remand hearing, Denbury filed a plea to the jurisdiction asserting SOAH lacked jurisdiction because notice was not sent to Sabine. The SOAH administrative judge denied the plea and ultimately the TCEQ issued TexCom’s permit. Sabine sued alleging no notice of the application was properly given.  The TCEQ filed a plea asserting the executive rights holder was aware of the hearings and did not participate, so Sabine could not bring suit. The trial court held the notice provision was jurisdictional and denied the TCEQ’s plea.

The court started with a presumption that notice provisions are not jurisdictional in SOAH hearings. After an analysis of the language of both the administrative regulations and the statute, the court concluded Sabine did not establish the statute overcame that presumption and therefore the administrative judge properly denied Sabine’s plea. The court then examined Sabine’s failure to participate in the hearing even though she had actual notice through the executive rights holder. Noting she did not participate, as well as the fact she did not ask the TCEQ to revoke the permit after discovering the permit was issued in accordance with TAC regulations, is a failure to exhaust her administrative remedies. As a result, the trial court should have granted the plea.

If you would like to read this opinion click here. Panel: Chief Justice Jones, Justice Rose, and Justice Goodwin.  Memorandum Opinion by Justice Goodwin.  The attorneys for all parties can be found on the docket page here.