Dos Republicas Coal Partnership v. David Saucedo, as Floodplain Administrator and County Judge of the Maverick County Commissioners Court, and the Maverick County Commissioners Court ( 2015 )

ACCEPTED
13-14-00725-cv
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/6/2015 5:28:58 PM
CECILE FOY GSANGER
CLERK
NO. 13-14-00725-CV
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE COURT OF APPEALS
FOR THE 7/6/2015 5:28:58 PM
CECILE FOY GSANGER
THIRTEENTH COURT OF APPEALS DISTRICT OF TEXAS
Clerk
DOS REPUBLICAS COAL PARTNERSHIP,
APPELLANT,
— VERSUS—
DAVID SAUCEDO AS FLOODPLAIN ADMINISTRATOR AND COUNTY JUDGE OF THE
MAVERICK COUNTY COMMISSIONERS COURT AND THE MAVERICK COUNTY
COMMISSIONERS COURT,
APPELLEES.
BRIEF OF APPELLEES
ALFONSO NEVAREZ BETH WATKINS
STATE BAR NO. 24005376 STATE BAR NO. 24037675
NEVAREZ LAW GROUP, P.C. SHANNON K. DUNN
780 EAST RIO GRANDE STREET STATE BAR NO. 24074162
EAGLE PASS, TEXAS 78852 LAW OFFICE OF BETH WATKINS
(830) 776-7003– PHONE 926 CHULIE DRIVE
(830) 776-7004– FAX SAN ANTONIO, TEXAS 78216
ANC@NEVAREZLAWGROUP.COM (210) 225-6666– PHONE
(210) 225-2300– FAX
BETH.WATKINS@WATKINSAPPEALS.COM
SHANNON.DUNN@WATKINSAPPEALS.COM
ATTORNEYS FOR APPELLEES
ORAL ARGUMENT CONDITIONALLY REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. JUDGE SAUCEDO DID NOT FAIL TO PERFORM ANY MINISTERIAL DUTIES
........................................................... 8
A. Judge Saucedo Did Not Have A Ministerial Duty To Approve
DRCP’s Permit Because The Decision To Approve Or Deny A
Permit Is A Textbook Example Of A Discretionary Decision . . . . 8
B. DRCP Ignores That Judge Saucedo Complied With His Duty To
Consider The Entire Ordinance . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III. JUDGE SAUCEDO DID NOT ABUSE HIS DISCRETION BY DENYING THE
PERMIT BECAUSE THE EVIDENCE SUPPORTS A CONCLUSION THAT DRCP
DID NOT EVEN SATISFY THE TEN FACTORS ON WHICH ITS APPLICATION
RELIES, LET ALONE THE REST OF THE ORDINANCE . . . . . . . . . . . . . . . . . 12
A. Padilla’s Testimony Demonstrated That His Report’s Analysis
Was Flawed Because It Did Not Consider Numerous Factors That
Are Relevant To The Purpose Of The Ordinance . . . . . . . . . . . . . 13
-i-
1. Padilla’s testimony supports a conclusion that DRCP’s
application did not satisfy factor (a) of the Ordinance . . . . 13
2. Padilla’s testimony revealed that, at best, DRCP’s
application only raises a question of fact as to factor (b) of
the Ordinance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3. Padilla’s testimony revealed flaws in his report’s
conclusions about factor (c) of the Ordinance . . . . . . . . . . . 16
4. Padilla’s report did not even consider all of the elements
required to satisfy factor (d) of the Ordinance . . . . . . . . . . 18
5. One expert’s ipse dixit, standing alone, is not enough to
prove Judge Saucedo abused his discretion as a matter of
law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B. Judge Saucedo Considered DRCP’s Application In Light Of The
Entire Ordinance—As The Ordinance Itself Required Him To
Do—And Did Not Consider Any Irrelevant Factors . . . . . . . . . . . 20
1. Judge Saucedo considered DRCP’s application . . . . . . . . . 20
2. Judge Saucedo considered all of the relevant factors—i.e.,
the Ordinance as a whole—before he denied the permit . . . 21
3. All of the factors DRCP describe as “irrelevant” touch on
issues the Ordinance required Judge Saucedo to consider . 23
a. The quality of the floodwater flowing from the
proposed mine relates to the dangers the mine could
pose to the citizens of Maverick County, and Judge
Saucedo’s recognition of that risk does not conflict
with TCEQ’s permitting power . . . . . . . . . . . . . . . . . 23
-ii-
b. Even DRCP’s own expert conceded that “public
health and safety”—a factor the Ordinance required
Judge Saucedo to consider—could broadly be called
“the best interest of the county” . . . . . . . . . . . . . . . . . 25
c. Judge Saucedo did not consider any surface coal
mining regulations except to the extent that he
concluded DRCP’s proposed sedimentation ponds
were not sufficient to adequately protect the citizens
and property of Maverick County . . . . . . . . . . . . . . . 27
d. Judge Saucedo’s personal experiences with flooding
in Maverick County are relevant to the question of
whether DRCP’s proposed mine satisfies the
requirements of the Ordinance . . . . . . . . . . . . . . . . . 29
4. The fact that the previous floodplain administrator awarded
DRRC a permit in 1998 has no relevance to DRCP’s 2011
and 2013 applications because the evidence showed a
change in relevant circumstances between 1998 and 2013
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
C. Judge Saucedo Did Not Abuse His Discretion By Denying
DRCP’s Permit Without A Written Explanation—But Even If He
Had, DRCP’s Only Remedy Is A Remand To Judge Saucedo To
Obtain That Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
IV. DRCP RECEIVED THE PROCESS IT WAS DUE FROM JUDGE SAUCEDO AND
IN THE TRIAL COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-iii-
INDEX OF AUTHORITIES
CASES PAGE
Amtel Commc’ns, Inc. v. Public Utility Comm’n, 687 S.W.2d 95 (Tex.
App.–Austin 1985, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33, 34
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) . . . . . . . . . . . . 12
Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417 (Tex. 2004) . . . . . . 9, 12
Bd. of Adjustment for San Antonio v. Kennedy, 410 S.W.3d 31 (Tex. App.–San
Antonio 2013, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Bd. of Regents v. Roth, 408 U.S. 564 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Christopher Columbus St. Mkt. LLC v. Zoning Bd. of Adjustments of the City
of Galveston, 302 S.W.3d 408 (Tex. App.–Houston [14th Dist.] 2009, no
pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923
(Tex. Civ. App.–Corpus Christi 1968, writ ref’d n.r.e.) . . . . . . . . . . . . . . 8
City of Dallas v. Saucedo-Falls, 268 S.W.3d 653 (Tex. App.–Dallas 2008, pet.
denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (Tex. App.–Austin 1993,
writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Comm’r of Gen. Land Office v. Smith, 5 Tex. 471 (1849) . . . . . . . . . . . . . . . . . . 9
Comm’rs Court v. Agan, 940 S.W.2d 77 (Tex. 1997) . . . . . . . . . . . . . . . . . . . 7, 16
Ector Cnty. v. Stringer, 843 S.W.2d 477 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . 7
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) . . . . . . . . . . . . . . . . 20
-iv-
Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547 (Tex. 1981) . . . . . . 25, 28
In re Bailey, 975 S.W.2d 430 (Tex. App.–Waco 1998, no pet.) . . . . . . . . . . . . . 9
Madden v. Tex. Bd. of Chiropractic Exam’rs, 663 S.W.2d 622 (Tex.
App.–Austin 1983, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
McMahon v. Zimmerman, 433 S.W.3d 680 (Tex. App.–Houston [1st Dist.]
2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Morgan Drive Away, Inc. v. R.R. Comm’n of Tex., 498 S.W.2d 147 (Tex. 1973)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Tex. Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d
446 (Tex. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32, 33
Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104 (Tex. 1981) . . . . . . 7
Westergren v. Jennings, 441 S.W.3d 670 (Tex. App.–Houston [1st Dist.] 2014,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 29
STATUTES AND RULES
Tex. Gov’t Code Ann. § 311.021 (Lexis 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 24
Tex. Gov’t Code Ann. § 2001.003 (Lexis 2015) . . . . . . . . . . . . . . . . . . . . . . . . 31
Tex. Water Code Ann. § 16.312 (Lexis 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. Water Code Ann. § 16.318 (Lexis 2015) . . . . . . . . . . . . . . . . . . . . . . . 24, 32
Tex. Water Code Ann. § 26.011 (Lexis 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECONDARY AUTHORITIES
FEMA.gov, Flood Zones, https://www.fema.gov/flood-zones (last visited June
25, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-v-
John Schwartz, Scientists Warn to Expect More Weather Extremes, N.Y.
Times, May 27, 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
W. Wendell Hall et al., Hall’s Standards of Review in Texas, 42 St. Mary’s L.J.
3 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-vi-
STATEMENT REGARDING ORAL ARGUMENT
According to DRCP, the questions at issue in this case turn on “[w]hether local
political subdivisions may thwart statewide permitting regimes governing energy
extraction.” Br. of Appellant at xv. This is a misleading description of the issues at
stake in this case. DRCP ignores that the Texas Legislature has given local
governments the power to establish the exact kind of permitting regime that Maverick
County established here. Tex. Water Code Ann. § 16.318 (Lexis 2015); 2 CR 886
(noting that Maverick County established its floodplain ordinance under the auspices
of section 16.318).
In other words, despite DRCP’s “the sky is falling” insistence to the contrary,
this case does not “ha[ve] the potential of rendering state agency permitting
meaningless[.]” Br. of Appellant at xv. Instead, this case simply turns on whether
Appellees properly interpreted and applied the Maverick County ordinance at
issue—an ordinance the Texas Legislature specifically gave the County power to
administer. There are no complicated questions of law raised by this appeal, and the
factual record was well-developed below. For this reason, Appellees do not believe
oral argument will assist the Court in resolving this dispute. However, if the Court
decides to hear oral argument, Appellees will attend and present argument.
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ISSUE PRESENTED
I. The evidence shows Judge Saucedo denied DRCP’s requested permit based on
his interpretation and application of a twenty-one page Ordinance that
necessarily required him to exercise discretion. Did the trial court correctly
determine that Judge Saucedo did not have a ministerial duty to grant
DRCP its requested permit?
II. The evidence shows Judge Saucedo denied DRCP’s requested permit based on
his determination that the permit application did not adequately satisfy the
Ordinance as a whole. Did the trial court correctly determine that Judge
Saucedo did not abuse his discretion by refusing to grant DRCP’s permit?
III. DRCP submitted two lengthy applications in support of its requested permit.
It has never alleged that it lacked an adequate opportunity to present its
evidence. Furthermore, it never requested a hearing before Judge Saucedo, and
the Ordinance does not require him to hold one. Finally, after Judge Saucedo
denied its requested permit, DRCP received what even it concedes was a “full
trial on the merits” in the trial court. Did DRCP suffer a deprivation of its
due process rights, and if so, has it already received the only remedy to
which it is entitled for that alleged deprivation?
-viii-
STATEMENT OF FACTS
In 1996, Maverick County adopted a Flood Damage Prevention Ordinance (“the
Ordinance”), the stated goal of which is “to promote the public health, safety and
general welfare and to minimize public and private losses due to flood conditions in
specified areas[.]” 2 CR 886.1 The County adopted the Ordinance with the blessing
of the Texas Legislature, which wanted to give counties and other local governments
the authority to “adopt and promulgate reasonable rules which are necessary for the
orderly effectuation of the” National Flood Insurance Program. Tex. Water Code
§ 16.318. In doing so, the Legislature recognized the importance of “promoting the
public interest by providing appropriate protection against the perils of flood losses
and in encouraging sound land use by minimizing exposure of property2 to flood
losses.” Tex. Water Code Ann. § 16.312 (Lexis 2015).
1
Appellees will cite the five-volume Clerk’s Record as “[volume number] CR [page
number],” using the page numbers that appear on the lower left-hand corner of the Clerk’s Record.
Appellants will cite the single-volume Reporter’s Record as “RR [page number]” and the exhibits
presented at trial as “Trial Exh. [number].”
2
In its brief, DRCP has italicized the word “property” as it is used in this statute, presumably
to imply that the Legislature was only concerned about property damage and did not intend to give
local governments authority to consider the health and safety issues mentioned in the Ordinance.
Compare Br. of Appellant at 3 (alleging that Maverick County adopted the Ordinance “to prevent
property loss in the floodplain”) (emphasis added), and Br. of Appellant at 56 (“The purpose of the
Ordinance is to prevent property losses”) (emphasis added), with Tex. Water Code § 16.312
(recognizing “the perils of flood losses”), and 2 CR 886 (identifying the need to “[p]rotect human
life and health” as one purpose of the Ordinance). Nevertheless, DRCP concedes that the Ordinance
“is in accord” with the Legislature’s mandate. Br. of Appellant at 4.
-1-
The Ordinance accomplishes its goals by, inter alia, “[r]estrict[ing] and
prohibit[ing] uses that are dangerous to health, safety and property in times of flood,”
“[c]ontrol[ling] the alteration of natural floodplains, stream channels, and natural
protective barriers,” and “[c]ontrol[ling] filling, grading, dredging and other
development which may increase flood damage.” 1 CR 296 (emphasis added). To this
end, the Ordinance creates a permitting regime that must be utilized by those who
wish to build in a floodplain. 2 CR 894, 896-99. Under this permitting regime,
“[a]pproval or denial of a Development Permit . . . shall be based on all of the
provisions of this ordinance,” as well as ten “relevant factors.” 2 CR 897 (emphasis
added). The Ordinance vests the responsibility for making permitting decisions in a
county floodplain administrator, a job it assigns to the Maverick County Judge. 2 CR
896. That position is currently held by one of the Appellees3 in this case, Maverick
County Judge David Saucedo. Trial Exh. 10 at 6.
In October of 1994, Dos Republicas Resources Company (“DRRC”)—the
predecessor to Appellant Dos Republicas Coal Partnership (“DRCP”)—obtained a
permit from the Railroad Commission of Texas to operate an open pit coal mine in
Maverick County near the city of Eagle Pass. 2 CR 852; Br. of Appellant at 2. If the
3
The second appellee in this case is the Maverick County Commissioners Court. Br. of
Appellant at iii. However, as Appellees’ trial counsel pointed out to the trial court, the Maverick
County Commissioners Court did not take any actions related to the denial of DRCP’s requested
permit. RR 94.
-2-
Railroad Commission permit—part of what DRCP refers to as “state-required
permits”—were all that was required, DRRC could have begun mining then. See Br.
of Appellant at 2 (“To accomplish its goal [of mining in Maverick County], DRCP
obtained all state-required permits to operate its proposed mine.”). But the Railroad
Commission permit, standing alone, was not sufficient to allow DRRC to mine its
land, because a substantial portion of the mine permit area is located in a parcel the
Federal Emergency Management Agency (“FEMA”) has designated as a Special
Flood Hazard Area.4 2 CR 853; 2 CR 882. As a result, DRRC’s use of the property
was subject to the Ordinance. 2 CR 853; 2 CR 882; 2 CR 894 (“The ordinance shall
apply to all areas of special flood hazard within the jurisdiction of Maverick
County.”). DRRC therefore applied for and received a floodplain development permit
from the previous Maverick County floodplain administrator in 1998. 1 CR 478.
In 2009, DRRC transferred its Railroad Commission mine permit to DRCP.5 2
CR 852; Br. of Appellant at 2. After it obtained the mining permit, DRCP made some
changes to the mine plan for the portion of the property that lay within the flood zone
4
FEMA defines Special Flood Hazard Areas—which are more commonly known as flood
zones or floodplains—as “those that will be inundated by the flood event having a 1-percent chance
of being equaled or exceeded in any given year. The 1-percent annual chance flood is also referred
to as the base flood or 100-year flood.” 2 CR 853 (internal quotation marks omitted); 2 CR 884; see
also FEMA.gov, Flood Zones, https://www.fema.gov/flood-zones (last visited June 25, 2015).
5
DRCP received an additional permit to renew, revise, and expand the existing 1994 permit
in January of 2013. 2 CR 852-53.
-3-
and, in 2011, applied for a new county floodplain permit to reflect these changes. 2
CR 853; Br. of Appellant at 2; see also 1 CR 171-258 (DRCP’s 2011 floodplain
development permit application). DRCP’s plan for the site included the diversion of
a unnamed tributary of Elm Creek and the construction of several sedimentation
ponds. 1 CR 171; 1 CR 174; 1 CR 296 (the Ordinance is intended, inter alia, to
“[c]ontrol the alteration of natural floodplains, stream channels, and natural protective
barriers”).
DRCP correctly notes that Judge Saucedo did not act on its 2011 permit at that
time. Br. of Appellant at 6; but see generally 2 CR 886-905 (the Ordinance does not
require the floodplain administrator to act on a permit application within any certain
period of time). Even if he had, however, DRCP still would have had to file an
additional permit application based on its 2013 discovery that FEMA had issued a new
Digital Flood Insurance Rate Map (“DFIRM”) for the area. 2 CR 854; RR 35. As a
result, after FEMA issued the new DFIRM, DRCP filed a supplemental floodplain
development permit application. 2 CR 854; 1 CR 261-452; see also 5 CR 3207 (trial
court finding of fact number 5).
In reviewing DRCP’s floodplain development permit application, Judge
Saucedo considered all of the provisions and factors listed in the Ordinance. Trial Exh.
10 at 27. In particular, he took note of the fact that the flood zones within the permit
-4-
area are located approximately two-and-a-half miles from the Elm Creek subdivision,
which is home to several hundred people and has seen extreme levels of flooding in
recent years. 2 CR 864; see also 2 CR 1036-38 (pictures of flooding near Elm Creek
in 2004, 2013, and 2014). He also relied on his personal experience with and
knowledge of significant flooding in the area, noting that this flooding was a “big
concern” for him. Trial Exh. 10 at 20-22. He did not consider any factors that were not
listed in the ordinance. Trial Exh. 10 at 27. Based on his consideration of the relevant
factors and provisions—particularly factors (a), (b), and (c)—Judge Saucedo decided
to deny DRCP’s requested permit. Trial Exh. 10 at 22; 1 CR 454.
After receiving Judge Saucedo’s denial, DRCP filed a petition for writ of
mandamus in the 293rd Judicial District Court of Maverick County (“the trial court”)
seeking an order compelling Judge Saucedo to grant the permit. 1 CR 4; 1 CR 41.
After a bench trial that even DRCP concedes constituted a “full trial on the merits,”
the trial court denied DRCP’s request for mandamus relief and issued findings of fact
and conclusions of law that are consistent with Judge Saucedo’s decision to deny
DRCP’s permit. Br. of Appellant at xiv; 5 CR 2940; 5 CR 3207-12. This appeal
followed. 5 CR 3179.
-5-
SUMMARY OF THE ARGUMENT
Throughout its brief, DRCP relies on a single assumption: that its permit
application complied with the Ordinance and Judge Saucedo was therefore required
to grant the requested permit. This assumption is based primarily on its insistence that
Judge Saucedo (a) only had discretion to consider ten factors listed on two pages of
the twenty-one-page Ordinance and (b) either failed to considered some of those
factors or improperly considered other “irrelevant” factors.
But both Judge Saucedo and the trial court concluded that DRCP’s application
did not demonstrate that all the factors and provisions set forth in the Ordinance—the
standard that actually applies under the Ordinance’s plain terms—supported granting
the requested permit. Furthermore, the trial court concluded that Judge Saucedo
considered all of the relevant provisions and factors and did not consider any
irrelevant factors. Because there is some evidence to support this conclusion, the
standard of review requires this Court to affirm the trial court’s refusal to grant
DRCP’s petition for writ of mandamus.
-6-
ARGUMENT AND AUTHORITIES
I. STANDARD OF REVIEW
“An appeal directed toward demonstrating an abuse of discretion is one of the
tougher appellate propositions.” W. Wendell Hall et al., Hall’s Standards of Review
in Texas, 42 St. Mary’s L.J. 3, 16 (2010) (internal quotation marks omitted). In order
to overcome this barrier in the trial court, DRCP needed to demonstrate that Judge
Saucedo either (a) refused to perform a purely ministerial act or (b) entered a ruling
that was arbitrary, capricious, or unsupported by substantial evidence. Ector Cnty. v.
Stringer, 843 S.W.2d 477, 479 (Tex. 1992); Vondy v. Comm’rs Court of Uvalde Cnty.,
620 S.W.2d 104, 109 (Tex. 1981).
However, in reviewing Judge Saucedo’s decision for abuse of discretion, the
trial court had no power to substitute its own judgment and discretion for Judge
Saucedo’s. See Comm’rs Court v. Agan, 940 S.W.2d 77, 79 (Tex. 1997). As a result,
in order to prevail in this Court, DRCP must demonstrate that the trial court’s
conclusion that Judge Saucedo (a) did not have a ministerial duty to issue the
requested permit and (b) did not abuse his discretion by refusing to do so was wrong
as a matter of law. Cf. Christopher Columbus St. Mkt. LLC v. Zoning Bd. of
Adjustments of the City of Galveston, 302 S.W.3d 408, 416 (Tex. App.–Houston [14th
Dist.] 2009, no pet.) (“A party attacking the legality of the Zoning Board’s order must
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establish that the Zoning Board could have reached but one decision, and not the
decision it made.”). “As long as the record contains some evidence of substantive and
probative character to justify” Judge Saucedo’s decision, this Court must affirm the
trial court’s judgment. Id.; see also Bd. of Adjustment for San Antonio v. Kennedy, 410
S.W.3d 31, 35 (Tex. App.–San Antonio 2013, pet. denied) (“With regard to factual
matters, the reviewing court must not put itself in the position of the board and
substitute its findings for those of the board, even if the overwhelming preponderance
of the evidence is against the board’s decision.”).
II. JUDGE SAUCEDO DID NOT FAIL TO PERFORM ANY MINISTERIAL
DUTIES.
A. Judge Saucedo Did Not Have A Ministerial Duty To Approve
DRCP’s Permit Because The Decision To Approve Or Deny A
Permit Is A Textbook Example Of A Discretionary Decision.
DRCP correctly notes that this Court has held that “‘[w]here the [applicant] has
done all that the statutes and law demands, the authorized granting of a building
permit becomes a mere ministerial duty.’” Br. of Appellant at 21 (quoting City of
Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923, 927 (Tex.
Civ. App.–Corpus Christi 1968, writ ref’d n.r.e.). However, as even DRCP
acknowledges in its brief, an act is not ministerial unless “‘the law clearly spells out
the duty to be performed by the official with sufficient certainty that nothing is left
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to the exercise of discretion.’” Br. of Appellant at 20 (quoting In re Bailey, 975
S.W.2d 430, 432 (Tex. App.–Waco 1998, no pet.)) (emphasis added).
DRCP asks this Court to ignore that deciding the question of whether it “has
done all that the statutes and law demands” required Judge Saucedo to consider the
Ordinance’s twenty-one pages’ worth of provisions and factors and decide whether
DRCP’s permit application—which is itself hundreds of pages long—met those
requirements. See generally 2 CR 886-905; see also 1 CR 171-258 (DRCP’s 2011
application); 1 CR 261-452 (DRCP’s 2013 application). The Ordinance required
Judge Saucedo to exercise discretion almost by definition. See, e.g., 2 CR 897-98
(listing factors for Judge Saucedo’s consideration, but also providing that he must
consider the Ordinance as a whole). This is because if an act—here, the decision about
whether to issue DRCP’s requested permit—“involves personal deliberation, decision,
and judgment . . . it is discretionary.” Ballantyne v. Champion Builders, Inc., 144
S.W.3d 417, 425 (Tex. 2004); see also Comm’r of Gen. Land Office v. Smith, 5 Tex.
471, 479 (1849) (“[W]here the act to be done involves the exercise of discretion or
judgment in determining whether the duty exists, it is not to be deemed merely
ministerial.”). Because the Ordinance required Judge Saucedo to exercise discretion
as a matter of law, he did not have a ministerial duty to approve DRCP’s permit
application. Compare 2 CR 886-905, with Ballantyne, 144 S.W.3d at 425.
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B. DRCP Ignores That Judge Saucedo Complied With His Duty
To Consider The Entire Ordinance.
DRCP has attempted to show that Judge Saucedo failed to perform a ministerial
duty because—at least according to DRCP—he did not consider “a list of ten factors
the Floodplain Administrator must consider in evaluating a permit application.” Br.
of Appellant at 22; but see Trial Exh. 10 at 27 (Judge Saucedo testified that he did
consider the required factors).6 It is true, as DRCP argues, that the Ordinance required
Judge Saucedo to consider ten specific factors listed in the Ordinance. See Br. of
Appellant at 22; 2 CR 897-98. However, DRCP’s insistence that “when those [ten]
factors . . . are met, only the ministerial duty of issuing the permit remains” is
incorrect. Br. of Appellant at 23. This is because the Ordinance specifically provides
that “[a]pproval or denial of a Development Permit . . . shall be based on all of the
provisions of this ordinance and the following [ten] relevant factors.” 2 CR 897
(emphasis added).
6
DRCP insists that Judge Saucedo “submitted no evidence and offered no witnesses at trial.”
Br. of Appellant at 10. While this is superficially true, it is also misleading. DRCP itself entered the
transcript of Judge Saucedo’s deposition into evidence at trial. See generally Trial Exh. 10. In that
deposition, Judge Saucedo explained exactly why he denied DRCP’s requested permit. Id. at 20; Id.
at 22 (specifically referencing factors (a), (b), and (c) as a basis for his decision). The trial court
credited Judge Saucedo’s explanation. 5 CR 3208-10. Furthermore, as explained more fully below,
Judge Saucedo’s trial counsel exposed serious weaknesses in DRCP’s evidence on cross
examination. Finally, DRCP’s insistence that “Appellees failed to even introduce any evidence
supporting [Judge Saucedo’s] alleged personal experiences” with local flooding is false because
Judge Saucedo’s testimony is evidence. Compare Br. of Appellant at 63 n.4, with Westergren v.
Jennings, 441 S.W.3d 670, 682 (Tex. App.–Houston [1st Dist.] 2014, no pet.).
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DRCP’s interpretation wholly ignores the conjunctive “and” that instructed
Judge Saucedo to consider the entire Ordinance—including the provisions intended
to “promote the public health, safety and general welfare and to minimize public and
private losses due to flood conditions” and “[p]rotect human life and health”—not just
the ten factors DRCP repeatedly presents as the alpha and the omega of this dispute.
Compare 2 CR 897, with Br. of Appellant at 11 (denoting the ten listed factors as
“exclusive”), and Br. of Appellant at 49 (same), and Br. of Appellant at 54 (same),
and Br. of Appellant at 59 (same), and Br. of Appellant at 61 (same), and Br. of
Appellant at 63 (same). In fact, DRCP has argued at length that it would have been an
abuse of discretion for Judge Saucedo to rely on any factors other than the ten listed
factors, even though the Ordinance itself commands him to do just that. Compare
2 CR 897, with Br. of Appellant at 11, and Br. of Appellant at 49, and Br. of
Appellant at 54, and Br. of Appellant at 59, and Br. of Appellant at 61, and Br. of
Appellant at 63.
In considering all the factors and provisions set out in the Ordinance—not just
the ones DRCP emphasized in its application and its brief in this Court—Judge
Saucedo used his discretion to conclude that DRCP did not meet its required burden.
See, e.g., Trial Exh. 10 at 20, 23-24, 32. Because the Ordinance gave him the
discretion to do so, he did not have a ministerial duty to grant DRCP’s requested
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permit. See Ballantyne, 144 S.W.3d at 425 (identifying “deliberation, judgment, and
decision” as “the very hallmarks of discretion”); 2 CR 896 (providing that reviewing,
approving, and denying permit applications like DRCP’s is part of Judge Saucedo’s
duties and responsibilities as floodplain administrator). As a result, this Court should
affirm the trial court’s conclusion that Judge Saucedo did not have a ministerial duty
to grant DRCP’s requested permit. See Ballantyne, 144 S.W.3d at 425.
III. JUDGE SAUCEDO DID NOT ABUSE HIS DISCRETION BY DENYING THE
PERMIT BECAUSE THE EVIDENCE SUPPORTS A CONCLUSION THAT
DRCP DID NOT EVEN SATISFY THE TEN FACTORS ON WHICH ITS
APPLICATION RELIES, LET ALONE THE REST OF THE ORDINANCE.
It is black-letter Texas law that “a writ of mandamus will not issue to compel
a public official to perform an act which involves an exercise of discretion [except]
to correct a clear abuse of discretion.” Anderson v. City of Seven Points, 806 S.W.2d
791, 793 (Tex. 1991). As noted above, Judge Saucedo’s approval or denial of DRCP’s
permit application was a discretionary act. See Ballantyne, 144 S.W.3d at 425. As a
result, in order to prevail in the trial court, DRCP needed to demonstrate that Judge
Saucedo committed a clear and unmistakable abuse of discretion by refusing to grant
the requested permit. See Anderson, 806 S.W.2d at 793. Because it failed to do so,
however, this Court should affirm the trial court’s judgment. Cf. Christopher
Columbus St. Mkt., 302 S.W.3d at 416.
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A. The Trial Court Heard Evidence That Paul Padilla’s Analysis
Was Flawed Because It Did Not Consider Numerous Factors
That Are Relevant To The Purpose Of The Ordinance.
DRCP insists that its expert, Paul Padilla, presented the trial court with an
“unchallenged, expert opinion” that DRCP’s application satisfied the ten factors in the
Ordinance as a matter of law. Br. of Appellant at 24-25. As noted above, this
contention ignores that the ten factors on which DRCP relies so heavily are not the
only factors the Ordinance commanded Judge Saucedo to consider. 2 CR 897. But
even if they were, DRCP is wrong that Padilla’s opinions entitle DRCP to mandamus
relief because his own trial testimony demonstrates that he did not consider evidence
that was relevant to at least four of the ten factors listed in the Ordinance.
1. Padilla’s testimony supports a conclusion that DRCP’s
application did not satisfy factor (a) of the Ordinance.
On its very first page, the Ordinance provides that one of its primary purposes
is to “[p]rotect human life and health.” 2 CR 886. This purpose is consistent with
factor (a) of the Ordinance, which directs Judge Saucedo to consider “[t]he danger to
life and property due to flooding or erosion damage” related to DRCP’s proposed use
of the floodplain. 2 CR 897. In his report’s analysis of factor (a), Padilla concluded
that “[s]ince the existing flood waters are being channelized into proposed
sedimentation ponds there is a decreased risk of damage caused by flooding or
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erosion.” Compare 2 CR 897 (the Ordinance), with 1 CR 268 (Padilla’s report).
In his trial testimony, however, Padilla conceded that he did not consider the
effect that back-to-back storms might have on the capacity of the sedimentation ponds
and their potential to overflow. RR 56. Instead, his models only considered the effect
of a single storm on the ponds’ capacity and overflow. Id. Furthermore, Padilla
testified that he was not aware that in June of 2013—just a few months before he
compiled his report—Maverick County received 17 inches of rain in 10 hours, an
amount well in excess of both the “25-year storm” and the “100-year storm” on which
Padilla’s analysis relied. RR 66; 1 CR 112-20 (25-year storm was 7.13 inches in 24
hours); RR 55 (100-year storm was 11.9 inches in 24 hours); see also 1 CR 261
(Padilla sent Judge Saucedo his report on September 4, 2013). Finally, Padilla
admitted that he did not have any opinion or expertise on contaminants that might be
deposited into the sedimentation ponds and eventually carried downstream from
DRCP’s mine if the ponds were to overflow. RR 61.
In other words, Padilla’s own testimony demonstrated the fallibility of his
conclusion that the proposed sedimentation ponds would lead to a decreased risk of
danger to life and property due to flooding. Compare 2 CR 897 (the Ordinance), with
1 CR 268 (Padilla’s report), and RR 55, and RR 66, and RR 56. This evidence does
not support granting DRCP’s requested permit and therefore cannot demonstrate that
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“[Judge Saucedo] could have reached but one decision, and not the decision [he]
made.” Christopher Columbus St. Mkt., 302 S.W.3d at 416. For this reason, the
evidence supports the trial court’s conclusion that Judge Saucedo did not abuse his
discretion by resolving factor (a) against DRCP’s requested permit. See id.
2. Padilla’s testimony revealed that, at best, DRCP’s
application only raises a question of fact as to factor (b) of
the Ordinance.
With regard to factor (b) of the Ordinance—“[t]he susceptibility of the
proposed facility and its contents to flood damage and the effect of such damage on
the individual owner”—Padilla opined that “[b]ased on the channel HEC-RAS
models, the 100-year flood waters will primarily be contained within the channels and
there is very minimal risk of property damage or other damage to the property owner.”
Compare 2 CR 897 (the Ordinance), with 1 CR 268 (Padilla’s report).
As noted above, however, Padilla’s projections failed to take into account the
fact that Maverick County experienced rainfall far in excess of a 100-year storm just
three months before Padilla submitted his report. RR 55; RR 66. And because Padilla
did not consider the fact that Maverick County actually did experience a rain event
in excess of a 100-year storm, he did not offer either Judge Saucedo or the trial court
any reason to believe that his projections were valid under those circumstances.
Compare RR 55, and RR 66, with 1 CR 268. For this reason, Padilla’s report at best
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raises a fact question as to factor (b)—a fact question that Judge Saucedo was within
his discretion to resolve against DRCP’s requested permit. See id.; Agan, 940 S.W.2d
at 79 (“[I]n reviewing a Commissioners Court judgment for abuse of discretion, the
district court has no right to substitute its own judgment and discretion for that of the
Commissioners Court judgment.”).
3. Padilla’s testimony revealed flaws in his report’s
conclusions about factor (c) of the Ordinance.
With regard to factor (c) of the Ordinance—“[t]he danger that materials may
be swept onto other lands to the injury of others”—Padilla’s report contends that
“[s]ince the existing flood waters are being channelized into proposed sedimentation
ponds, foreign debris is less likely to be swept downstream because the flow is
contained within the channel.” Compare 2 CR 897 (the Ordinance), with 1 CR 268
(Padilla’s report).
However, as noted above, Padilla agreed during his trial testimony that his
analysis did not consider the effect of back to back storms on the sedimentation
ponds’ capacity. RR 56. Nor did he consider the fact that Maverick County has
actually experienced rainfall amounts far in excess of a “100-year storm.” RR 55; RR
66. Furthermore, Padilla conceded at trial that his analysis on factor (c) did not
consider the possibility that the sulfur produced by DRCP’s mining operations would
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become poisonous sulfuric acid when it comes into contact with the water of Elm
Creek, its tributaries, and the proposed sedimentation ponds, or that this sulfuric acid
might eventually make its way downstream to the Elm Creek subdivision. RR 78-79.
Finally, the plain language of Padilla’s report demonstrates that he substituted the
much narrower phrase “foreign debris” for the Ordinance’s arguably broader
“materials.” Compare 2 CR 897 (the Ordinance), with 1 CR 268 (Padilla’s report).
This discrepancy between Padilla’s report and the plain language of the Ordinance is
not consistent with DRCP’s repeated insistence that Padilla’s report satisfies the
Ordinance as a matter of law. See, e.g., Br. of Appellant at 24-30.
This evidence does not support granting DRCP’s requested permit and therefore
cannot demonstrate that “[Judge Saucedo] could have reached but one decision, and
not the decision [he] made.” Christopher Columbus St. Mkt., 302 S.W.3d at 416. For
this reason, Judge Saucedo did not abuse his discretion by resolving factor (c) against
DRCP’s requested permit. See id.
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4. Padilla’s report did not even consider all of the elements
required to satisfy factor (d) of the Ordinance.
Finally, with regard to factor (d)7 of the Ordinance—“[t]he compatibility of the
proposed use with existing and anticipated development”—Padilla’s report concluded:
The proposed, and approved use, for the land is the development of a
surface coal mine. However, surface mining is a temporary use for the
land. The land will be reclaimed, after mining, to appropriate original
contours and to the current use of the land per the requirements of the
Railroad Commission of Texas.
Compare 2 CR 897 (the Ordinance), with 1 CR 268 (Padilla’s report). Padilla’s report
completely ignores, however, that “existing and anticipated development”
encompasses more than just the proposed coal mine. 2 CR 897. That phrase also
plainly includes the “existing” development near the proposed mine—most obviously,
the large residential subdivision just two-and-a-half miles downstream. 2 CR 864.
DRCP ignores that Padilla’s report cannot satisfy this factor as a matter of law
because it does not even consider the mine’s compatibility with any development
other than the mine itself—even though, as DRCP itself has conceded numerous times
throughout this litigation, the residents of the nearby Elm Creek subdivision do not
7
In its brief, DRCP contends “the trial court did not find that the Permit Application failed
to meet” any factors other than factors (a)-(c). Br. of Appellant at 29. This assertion is misleading.
While the trial court did specifically find that Padilla’s testimony failed to meet factors (a)-(c), it did
not issue any express findings, either positive or negative, about DRCP’s satisfaction of the
remaining factors. 5 CR 3207-11. However, it did find that “DRCP’s expert Paul Padilla failed to
demonstrate through his testimony that all ten factors contained in Article 4, Section C (2) (a)-(j)
of the Ordinance were satisfied, so as to support the granting of the Permit.” 5 CR 3209.
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want DRCP to begin a surface mining operation near their homes. See, e.g., Br. of
Appellant at 1 (“It is no secret that a number of Maverick County residents are
opposed to DRCP’s proposed 2,700-acre coal-mining project near the City of Eagle
Pass.”). DRCP cannot seriously contend that Judge Saucedo abused his discretion by
considering whether the residents’ opposition offered valuable insight into “[t]he
compatibility of the proposed use with existing and anticipated development,”
especially when DRCP’s own evidence did not even recognize that the “existing
development”—i.e., people’s homes—was a factor worthy of consideration. 2 CR
897; 1 CR 268.
5. One expert’s ipse dixit, standing alone, is not enough to
prove Judge Saucedo abused his discretion as a matter of
law.
Neither Judge Saucedo, the trial court, nor this Court are required to accept
Padilla’s ipse dixit that a particular result is certain. See, e.g., McMahon v.
Zimmerman, 433 S.W.3d 680, 686-87 (Tex. App.–Houston [1st Dist.] 2014, no pet.)
(“Something is not true simply because an expert says it is so.”). But that is exactly
what DRCP thinks should have happened here. Br. of Appellant at 7 (“In Mr. Padilla’s
expert opinion, DRCP’s Permit Application satisfies each requirement and factor
outlined in the Ordinance.”). According to DRCP, the fact that Padilla said there is no
danger means that there is no danger as a matter of law. See id. However, because
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Padilla’s own testimony demonstrates the limits of the conclusions contained within
his report, the evidence supports the trial court’s conclusion that Judge Saucedo did
not abuse his discretion by rejecting Padilla’s conclusions on at least four of the
Ordinance’s ten factors. See, e.g., Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601
(Tex. 2004) (“We have repeatedly held that more than a scintilla of evidence exists
if the evidence rises to a level that would enable reasonable and fair-minded people
to differ in their conclusions.”) (internal quotation marks omitted). And, as Judge
Saucedo’s counsel pointed out in the trial court, while the Ordinance required Judge
Saucedo to consider all ten factors, it did not prohibit him from giving some of the
factors more weight than the others. RR 94. For this reason, this Court should hold
that the trial court did not err by refusing to grant DRCP’s requested mandamus relief.
Cf. Christopher Columbus St. Mkt., 302 S.W.3d at 416.
B. Judge Saucedo Considered DRCP’s Application In Light Of
The Entire Ordinance—As The Ordinance Itself Required
Him To Do—And Did Not Consider Any Irrelevant Factors.
1. Judge Saucedo considered DRCP’s application.
Throughout its brief, DRCP emphatically insists that Judge Saucedo never
actually considered the contents of its permit application before he denied it. Br. of
Appellant at 33, 41-42. It bases this contention on one isolated fragment of Judge
Saucedo’s deposition testimony—testimony that, in different sections of its brief, it
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also insists amounts to “no evidence.” Compare id., with Br. of Appellant at 63 n.4
(contending that Judge Saucedo’s deposition testimony is no evidence of his personal
experiences with flooding in Maverick County).
However, the rest of Judge Saucedo’s deposition testimony confirms that he
actually did review DRCP’s application, just as the Ordinance required him to do. 2
CR 896. For example, he testified that “as far as [he] could tell, it was a complete
application.” Trial Exh. 10 at 15. He was familiar with the application’s contents and
answered questions about those contents. Id. at 16-18. He knew DRCP’s plans called
for the construction of sedimentation ponds. Id. at 23. He identified the factors “that
[he] found lacking” in DRCP’s application. Id. at 28. In short, the record demonstrates
that Judge Saucedo properly reviewed DRCP’s application, and this Court should
reject DRCP’s assertions to the contrary. Compare Br. of Appellant at 33, 41-42, with
Trial Exh. 10 at 15, 16-18, 23, 28.
2. Judge Saucedo considered all of the relevant factors—i.e.,
the Ordinance as a whole—before he denied the permit.
The Ordinance specifies that Judge Saucedo had a duty to consider “all of the
provisions of this ordinance and the following [ten] relevant factors.” 2 CR 897
(emphasis added). DRCP has emphasized this language over and over again
throughout this litigation. Br. of Appellant at 5; 1 CR 7 (DRCP’s original petition for
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writ of mandamus); 1 CR 44 (DRCP’s amended petition for writ of mandamus); 1 CR
92 (DRCP’s brief in support of its amended petition).
Despite its near-constant reference to this provision, however, DRCP seems to
have not read it very closely. This is because DRCP believes that Judge Saucedo only
had power to consider “the following [ten] relevant factors” and not a single word that
appeared on any of the other nineteen pages of the ordinance. Compare 2 CR 897,
with Br. of Appellant at 11 (denoting the ten listed factors as “exclusive”), and Br. of
Appellant at 49 (same), and Br. of Appellant at 54 (same), and Br. of Appellant at 59
(same), and Br. of Appellant at 61 (same), and Br. of Appellant at 63 (same). As
explained more fully above, the plain terms of the Ordinance demonstrates that DRCP
is wrong. 2 CR 897.
Judge Saucedo considered DRCP’s application in light of the ten factors DRCP
has focused on as well as the rest of the Ordinance. Trial Exh. 10 at 20, 23-24, 33-35.
He denied DRCP’s permit based on his interpretation and application of those factors.
See id. This is all the Ordinance required him to do. 2 CR 896-97. Judge Saucedo did
not abuse his discretion by doing exactly what the Ordinance required of him. Cf.
Christopher Columbus St. Mkt., 302 S.W.3d at 416. As a result, this Court should
affirm the trial court’s denial of DRCP’s requested mandamus relief. See id.
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3. All of the factors DRCP describe as “irrelevant” touch on
issues the Ordinance required Judge Saucedo to consider.
a. The quality of floodwater flowing from the proposed
mine relates to the dangers the mine could pose to
the citizens of Maverick County, and Judge
Saucedo’s recognition of that risk does not conflict
with TCEQ’s permitting power.
DRCP contends that “floodwater quality” is not specifically listed in the
Ordinance and is therefore not a relevant factor that Judge Saucedo could properly
consider. Br. of Appellant at 55-58. It also contends that only the Texas Commission
on Environmental Quality (“TCEQ”) has the authority to set water quality standards
in Texas. Br. of Appellant at 57-58.
But, as noted above ad nauseaum, the Ordinance specifically required Judge
Saucedo to consider the Ordinance as a whole, including its stated purpose “to
promote the public health, safety and general welfare and to minimize public and
private losses due to flood conditions in specified areas” and its goal of “[r]estrict[ing]
or prohibit[ing] uses that are dangerous to health, safety or property in times of
flood[.]” 2 CR 886; 1 CR 296; 2 CR 897. Nothing in DRCP’s lengthy diatribe about
the “irrelevance” of the quality of the floodwater flowing from its mine disputes that
contaminants in that floodwater could potentially harm “the public health, safety and
general welfare” of the people of Maverick County. Br. of Appellant at 55-58; Trial
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Exh. 10 at 34 (Judge Saucedo’s testimony that “I’m just looking at the possibility of
any contamination that can fall into that creek and that would go into people’s
homes.”); see also RR 67-68 (Padilla’s testimony that coal has sulfur in it and that
sulfur is “without a doubt” a contaminant). As a result, DRCP’s description of
floodwater quality as an “irrelevant” factor is wholly inconsistent with the plain
language of the Ordinance. See 2 CR 886; 1 CR 296; 2 CR 897.
Furthermore, nothing about Judge Saucedo’s compliance with his mandatory
duties to safeguard the lives and property of Maverick County’s residents conflicts
with TCEQ’s duties to set water quality standards. Both Judge Saucedo’s duties and
TCEQ’s arise from the same place: the Texas Water Code. See Tex. Water Code
§ 16.318 (allowing Maverick County to enact the Ordinance); see Tex. Water Code
Ann. § 26.011 (Lexis 2015) (establishing TCEQ’s duties regarding water quality).
This Court must presume that the Legislature was aware of both statutes and intended
them to operate in harmony with one another. Tex. Gov’t Code Ann. § 311.021 (Lexis
2015). This Court must also presume that the Legislature intended for public
interest—i.e., the interests of Maverick County—to prevail over private interests like
those DRCP advocates here. Tex. Gov’t Code § 311.021(5). Finally, if—as DRCP
implies in its brief—TCEQ’s permitting process essentially “trumps” the Ordinance’s,
then the Ordinance is all but meaningless, because under those circumstances a
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landowner with a TCEQ permit would not need to seek a floodplain permit under the
Ordinance. See, e.g., Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex.
1981) (“[T]he legislature is never presumed to do a useless act.”). For these reasons,
this Court should not overturn the trial court’s judgment on the basis of an imaginary
conflict between Judge Saucedo’s order and DRCP’s TCEQ permit. See id.
b. Even DRCP’s own expert conceded that “public
health and safety”—a factor the Ordinance required
Judge Saucedo to consider—could broadly be called
“the best interest of the county.”
DRCP complains that Judge Saucedo abused his discretion by denying its
requested permit based on the best interests of Maverick County. See, e.g., Br. of
Appellant at 58-60. However, as with DRCP’s complaints about Judge Saucedo’s
consideration of the quality of the floodwater flowing out of the mine, DRCP’s
insistence that the “best interest of the county” is not relevant is directly contrary to
the Ordinance’s plain language. 2 CR 897 (requiring Judge Saucedo to consider “all
the factors and provisions of this ordinance”); 2 CR 886 (providing that the Ordinance
is intended to protect human life and health). As DRCP’s own expert conceded in the
trial court, issues of public health and safety—which are among the reasons Judge
Saucedo mentioned for denying the permit—are included under the umbrella of “best
interest of the county.” RR 72-73; Trial Exh. 10 at 33.
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Furthermore, several of the ten factors that DRCP insists are the “exclusive”
valid considerations also implicate what could broadly be termed the “best interest of
the county.” See 2 CR 897 (commanding Judge Saucedo to consider, inter alia,
“danger to life and property,” “danger that materials may be swept onto other lands
to the injury of others,” and “[t]he compatibility of the proposed use with existing and
anticipated development”). Additionally, DRCP’s insistence that these factors cannot
possibly implicate a “best interest of the county” standard is directly contrary to the
unambiguous rules of interpretation set out within the four corners of the Ordinance
itself:
2 CR 894. If the trial court had accepted DRCP’s interpretation of the Ordinance—that
the best interest of the county is irrelevant—it would have strictly construed the
Ordinance against Judge Saucedo. Trial Exh. 10 at 33 (Judge Saucedo’s testimony
that he was concerned about the mine’s effect on “the health and welfare . . . of the
residents who live in that area”). Under the Ordinance’s plain terms, however, the trial
court must do the exact opposite and construe the application and interpretation of this
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ordinance liberally in favor of Judge Saucedo. See 2 CR 894. As a result, there is some
evidence to support the trial court’s conclusion that Judge Saucedo’s reliance on “the
best interest of the county” was not an abuse of discretion. 2 CR 894; 2 CR 897; Trial
Exh. 10 at 33; Christopher Columbus St. Mkt., 302 S.W.3d at 416.
c. Judge Saucedo did not consider any surface coal
mining regulations except to the extent that he
concluded DRCP’s proposed sedimentation ponds
were not sufficient to adequately protect the citizens
and property of Maverick County.
DRCP appears to believe that Judge Saucedo usurped the authority of the Texas
Railroad Commission by considering his own prior experience with sedimentation
ponds like the ones DRCP plans to construct. See Br. of Appellant at 61 (citing Judge
Saucedo’s testimony that he “ha[s] problems with sedimentation ponds”). This belief
appears to arise out of DRCP’s assumption that Judge Saucedo’s refusal to rubber-
stamp the county flood permit required by the Ordinance, standing alone, amounts to
a usurpation of the Railroad Commission’s statewide authority. See Br. of Appellant
at xv (“Notwithstanding that DRCP has obtained the requisite mining and wastewater
discharge permits from the Railroad Commission of Texas . . . and the Texas
Commission on Environmental Quality . . . the Floodplain Administrator defied the
state permitting regime[.]”). As noted above, however, if successfully obtaining a
state-required permit turns the county’s own permitting process into a foregone
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conclusion, then the Ordinance will cease to have any meaning at all. See, e.g.,
Hunter, 620 S.W.2d at 551.
Furthermore, Judge Saucedo testified that his concerns about the sedimentation
ponds arise out of his personal experience with similar ponds that have overflowed
and adversely affected people who live in the area. Trial Exh. 10 at 23-24. This
concern is not, as DRCP implies, a usurpation of the Railroad Commission’s own
permitting process, but is instead consistent with Judge Saucedo’s duties to consider,
inter alia, “danger to life and property,” “danger that materials may be swept onto
other lands to the injury of others,” and “[t]he compatibility of the proposed use with
existing and anticipated development.” 2 CR 897. Because this allegedly “irrelevant”
factor is consistent with Judge Saucedo’s duties under the Ordinance, there is some
evidence to support the trial court’s conclusion that Judge Saucedo did not abuse his
discretion by considering it. See id. As a result, this Court should affirm the trial
court’s judgment. Christopher Columbus St. Mkt., 302 S.W.3d at 416.
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d. Judge Saucedo’s personal experiences with flooding
in Maverick County are relevant to the question of
whether DRCP’s proposed mine satisfies the
requirements of the Ordinance.
DRCP complains that Judge Saucedo’s reference to his own personal
experience is an “irrelevant factor” in the permitting process. Br. of Appellant at 63-
64. But Judge Saucedo did not rely on his personal experience as a “factor” to support
granting or denying the permit. Instead, he relied on his personal experiences with
flooding in Maverick County as evidence to support his conclusion that the proposed
mine project could potentially endanger the lives and property of the residents of
Maverick County. Furthermore, while DRCP insists that Judge Saucedo “failed to
even introduce any evidence supporting these alleged personal experiences,” it wholly
ignores that Judge Saucedo’s deposition testimony—which DRCP itself introduced
into evidence at trial—is, in fact, evidence. See Westergren, 441 S.W.3d at 682; RR
21 (“MR. COBB: And, Your Honor, I’d also at this time like to admit Exhibit Number
9, Judge Saucedo’s deposition transcript.”). Judge Saucedo’s deposition testimony is
some evidence to support the trial court’s conclusion. See Christopher Columbus St.
Mkt., 302 S.W.3d at 416.
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4. The fact that the previous floodplain administrator awarded
DRRC a permit in 1998 has no relevance to DRCP’s 2011
and 2013 applications because the evidence showed a
change in relevant circumstances between 1998 and 2013.
Finally, DRCP insists that Judge Saucedo should have approved its 2011 permit
application and its 2013 supplemental application because—according to
DRCP—those applications are virtually identical to DRRC’s 1998 permit application,
which the then-floodplain administrator approved. Br. of Appellant at 5; Br. of
Appellant at 48. Judge Saucedo testified, however, that “there are factors . . . that I’ve
seen that I don’t believe apply now that were there in 1998” such as “[f]looding issues
that we seen since—since then.” Trial Exh. 10 at 32; see also John Schwartz,
Scientists Warn to Expect More Weather Extremes, N.Y. Times, May 27, 2015, at A18
(noting “the enormous building boom that Texas has enjoyed in recent decades has
led to greater problems with water runoff and higher costs of storm damage”). In other
words, Judge Saucedo specifically testified that the changed conditions in the area
since 1998 contributed to his decision to deny the new permit. See Trial Exh. at 32.
Judge Saucedo’s conclusions were bolstered by DRCP’s own expert, who also
testified to a significant change since 1998: FEMA’s changes to the applicable
floodplain maps. RR 35. Because both Judge Saucedo and DRCP’s own expert
identified relevant changes that have taken place since 1998 that change the analysis
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of this situation, DRCP’s contention that the 1998 permit is at all relevant in this
dispute is without merit. Trial Exh. 10 at 31-32; RR 35.
C. Judge Saucedo Did Not Abuse His Discretion By Denying
DRCP’s Permit Without A Written Explanation—But Even
If He Had Abused His Discretion, DRCP’s Only Remedy Is A
Remand To Judge Saucedo To Obtain That Explanation.
DRCP contends that Judge Saucedo “was required to provide an explanatory
order with reasons for his denial” and that his failure to do so demonstrates that his
denial was arbitrary and capricious. Br. of Appellant at 42, 46. To support this
proposition, it has cited a number of cases involving judicial review of administrative
decisions. See generally Br. of Appellant at 42-49. But Judge Saucedo’s permit denial
is not, strictly speaking, an “administrative decision” because Judge Saucedo is not
a state agency subject to the provisions of the Texas Administrative Procedure Act.
See Tex. Gov’t Code Ann. § 2001.003(7) (Lexis 2015) (defining “state agency”).
None of the cases DRCP has cited hold that permitting decisions made by a county
judge like Judge Saucedo are subject to the same rules as a statewide administrative
agency’s rulemaking or adjudicatory processes. See id.
Even if Judge Saucedo were a “state agency,” however, the Texas Supreme
Court has held that the scope of judicial review of administrative decisions “is
governed by the enabling statute in the area under adjudication.” Tex. Health
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Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 449 (Tex. 1984).
Here, the “enabling statute in the area under adjudication” is section 16.318 of the
Texas Water Code, which allowed Maverick County to promulgate the Ordinance. See
Tex. Water Code § 16.318. However, neither section 16.318 nor the Ordinance itself
specify that judicial review of a floodplain administrator’s permit denial is limited to
the reasons, if any, expressed in the denial order. See Tex. Water Code § 16.318; 2 CR
886-905.
Furthermore, DRCP has repeatedly cited the Austin Court of Appeals’s decision
in Amtel Communications, Inc. v. Public Utility Commission to support its contention
that a reviewing court may only judge a challenged agency action based on “the
grounds invoked by the agency.” Br. of Appellant at 43, 44 (citing Amtel Commc’ns,
Inc. v. Public Utility Comm’n, 687 S.W.2d 95, 106 (Tex. App.–Austin 1985, no writ))
(emphasis in original). What DRCP has failed to tell this Court, however, is that the
Amtel Communications Court wanted to remand an agency order it considered
insufficient but concluded it could not do so because it was bound by the Texas
Supreme Court’s contrary decision in Texas Health Facilities. See Amtel Commc’ns,
687 S.W.2d at 106 (citing Tex. Health Facilities, 665 S.W.2d at 453). In Texas Health
Facilities, the Texas Supreme Court recognized that the applicable statutes required
the agency to include written findings of fact in its order. Tex. Health Facilities, 665
-32-
S.W.2d at 450. Nevertheless, the Supreme Court “chose [notwithstanding an
insufficient agency order] not to remand the case but to affirm the agency order on a
basis that the Court itself could construct a saving rationale from the seven valid
findings of basic fact alone.” Amtel Commc’ns, 687 S.W.2d at 106 (citing Tex. Health
Facilities, 665 S.W.2d at 453).
Although the Amtel Communications Court went on to cite several “generally
accepted rules that apply to the judicial review of an administrative order,” it did so
to explain why it disagreed with the Texas Supreme Court’s decision in Texas Health
Facilities, not—as DRCP has implied here—because those “generally accepted rules”
formed the basis of its opinion. Compare Amtel Commc’ns, 687 S.W.2d at 110
(affirming the district court’s approval of the Commission’s final order despite the
Austin Court’s reluctance to do so), with Br. of Appellant at 43, 44. Because all of the
quotations DRCP’s brief pulls from Amtel Communications come from the portion of
the opinion that explains why that Court disagreed with the Supreme Court, those
quotations are dicta and do not mandate overturning the trial court’s judgment.
Compare Br. of Appellant at 43-44, with Amtel Commc’ns, 687 S.W.2d at 106.
Finally, even if Judge Saucedo had been required to provide a list of reasons for
his denial, DRCP ignores that the sole remedy for this error, if any, is a remand to
Judge Saucedo to allow him to supply an explanation—as even DRCP’s own cited
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authority recognizes.8 See, e.g., City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896,
899-900 (Tex. App.–Austin 1993, writ denied) (affirming the district court’s judgment
“remand[ing] the case to the Commission to supply an explanation” for its action);
Madden v. Tex. Bd. of Chiropractic Exam’rs, 663 S.W.2d 622, 623 (Tex. App.–Austin
1983, writ ref’d n.r.e.) (“We will reverse the judgment below and order that the
proceedings be remanded to the Board.”). However, because DRCP has not presented
this Court with any evidence to support a conclusion that Judge Saucedo would reach
a different decision on remand, a remand for a “more complete” order that
nevertheless reaches the exact same result would be a waste of judicial resources, and
this Court should refuse to order it. Cf. Amtel Commc’ns., Inc., 687 S.W.2d at 105
(noting the Austin Court of Appeals’s desire to remand a case to the Public Utility
Commission after finding “apparent defects” in the Commission’s findings of fact
because “[w]e are not reasonably satisfied that the Commission would have made the
same decision based upon its remaining [unchallenged] findings of ultimate fact.”).
8
It is true that DRCP cited one case where the Texas Supreme Court rendered judgment
vacating a Railroad Commission order because it lacked sufficient explanation for the Commission’s
decision. Morgan Drive Away, Inc. v. R.R. Comm’n of Tex., 498 S.W.2d 147, 152 (Tex. 1973). In
that case, however, the statute that imposed the requirement of written fact-finding—a fact which,
as noted above, does not exist in this case—also provided that an order entered without the required
fact-finding “shall be void.” Id. at 150 (internal quotation marks omitted).
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IV. DRCP RECEIVED THE PROCESS IT WAS DUE FROM JUDGE SAUCEDO
AND IN THE TRIAL COURT.
DRCP contends that it was denied due process of law because—at least
according to DRCP—“[p]rior to depriving DRCP of its property interests, [Judge
Saucedo] provided DRCP with no hearing or opportunity to be heard.” Br. of
Appellant at 65. As a threshold matter, it is essential to note that this argument
assumes DRCP has a property interest in a permit it has requested but not yet been
granted. See, e.g., Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (“To have a
property interest in a benefit [that stems from state law], a person clearly must have
more than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it.”).
DRCP has not cited any authority to support this proposition. Compare generally Br.
of Appellants, with Roth, 408 U.S. at 577. Nor has DRCP contended that Judge
Saucedo’s actions stripped it of its ability to use its land in accordance with its
existing permits. See generally id.
In any event, DRCP has not pointed toward any provisions in the Ordinance
that require a floodplain administrator to hold a hearing before granting or denying a
floodplain development permit, nor does it contend that it ever requested a hearing
during the two years that Judge Saucedo was considering its permit application. See
-35-
generally Br. of Appellant at 64-65. In fact, even DRCP’s own cited authority points
out that all procedural due process requires is “an opportunity for a hearing
appropriate to the nature of the case.” City of Dallas v. Saucedo-Falls, 268 S.W.3d
653, 660 (Tex. App.–Dallas 2008, pet. denied). Here, the “hearing appropriate to the
nature of the case” is set out in the Ordinance itself, and it matches the process DRCP
received from Judge Saucedo. 2 CR 897-98 (promulgating the applicable “permit
procedures”); 2 CR 896-97 (setting out the “duties & responsibilities of the floodplain
administrator,” none of which involve holding full hearings on permit applications).
Finally, DRCP has not contended that the trial court denied it the process it
was due. See Br. of Appellant at 64-65. Instead, it complains simply—and with no
citation to any authority—that “the trial court erred when it determined that due
process was not at issue in this matter.” Br. of Appellant at 65. But even if DRCP’s
due process rights had been violated in the initial permitting process—which they
were not—that violation was remedied when DRCP received what even it calls “a full
trial on the merits.” Br. of Appellant at 10. DRCP has not presented this Court with
any argument or authority to support a conclusion that it was entitled to process more
extensive than the full trial on the merits it actually received. See generally Br. of
Appellant at 64-65. The fact that the trial ended in a result that DRCP is unhappy with
does not amount to a violation of its due process rights.
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CONCLUSION AND PRAYER
Judge Saucedo denied DRCP’s requested permit because he believed DRCP
had not satisfied its burden under all of the provisions of the Ordinance. Because this
is all that is required under the Ordinance or any other Texas law, Judge Saucedo did
not have a ministerial duty to grant DRCP’s permit, and he did not abuse his
discretion by refusing to do so. Furthermore, because there is some evidence to
support Judge Saucedo’s refusal to grant the permit, the trial court did not err by
refusing to compel Judge Saucedo to issue the permit in spite of his own misgivings
about its impact on the citizens of Maverick County. See 2 CR 897 (commanding
Judge Saucedo to consider, inter alia, “danger to life and property,” “danger that
materials may be swept onto other lands to the injury of others,” and “[t]he
compatibility of the proposed use with existing and anticipated development”).
Finally, DRCP has already received all of the process it was due in this dispute.
For these reasons, Appellees David Saucedo as Floodplain Administrator and
County Judge of the Maverick County Commissioners Court and the Maverick
County Commissioners Court pray that this Court will affirm the trial court’s
judgment in its entirety. Appellees further pray for any additional relief to which they
may be entitled in law or equity.
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Respectfully submitted,
/s/ Shannon K. Dunn
Beth Watkins
Texas Bar No. 24037675
Shannon K. Dunn
Texas Bar No. 24074162
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666– phone
(210) 225-2300– fax
ATTORNEYS FOR APPELLEES
DAVID SAUCEDO AS FLOODPLAIN
ADMINISTRATOR AND COUNTY JUDGE
OF THE MAVERICK COUNTY
COMMISSIONERS COURT AND THE
MAVERICK COUNTY COMMISSIONERS
COURT
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CERTIFICATE OF SERVICE
I hereby certify that on [date] a true and correct copy of this brief was
forwarded in accordance with rule 9.5 of the Texas Rules of Appellate Procedure to
the following counsel of record:
Leonard Dougal
Mallory Beck
JACKSON WALKER LLP
100 Congress Avenue, Suite 1100
Austin, Texas 78701
ldougal@jw.com
Bill Cobb
Matthew Ploeger
Jenny Lee Smith
COBB & COUNSEL
401 Congress Avenue, Suite 1540
Austin, Texas 78701
bill@cobbxcounsel.com
/s/ Shannon K. Dunn
Shannon K. Dunn
ATTORNEY FOR APPELLEES
DAVID SAUCEDO AS FLOODPLAIN
ADMINISTRATOR AND COUNTY JUDGE OF
THE MAVERICK COUNTY
COMMISSIONERS COURT AND THE
MAVERICK COUNTY COMMISSIONERS
COURT
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CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2).
1. Exclusive of the portions exempted by Tex. R. App. P. 9.4(i)(1), this brief
contains 8,985 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Times New
Roman 14 point font in text and Times New Roman 12 point font in footnotes produced
by Corel WordPerfect X6 software and converted to PDF format by Acrobat Distiller
10.1.3.
/s/ Shannon K. Dunn
Shannon K. Dunn
ATTORNEY FOR APPELLEES
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