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 , 477 S.W.3d 828 ( 2015 )

NUMBER 13-14-00725-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DOS REPUBLICAS COAL PARTNERSHIP, Appellant,
v.
DAVID SAUCEDO, AS FLOODPLAIN
ADMINISTRATOR AND COUNTY JUDGE
OF THE MAVERICK COUNTY COMMISSIONERS
COURT, AND THE MAVERICK COUNTY
COMMISSIONERS COURT, Appellees.
On appeal from the 293rd District Court
of Maverick County, Texas.
OPINION
Before Justices Rodriguez, Garza, and Longoria
Opinion by Justice Rodriguez
Appellant Dos Republicas Coal Partnership (Dos Republicas) challenges the order
of the 293rd District Court of Maverick County denying its petition for writ of mandamus
to compel appellees David Saucedo, as Floodplain Administrator and County Judge of
the Maverick County Commissioners Court, and the Maverick County Commissioners
Court to grant its floodplain development permit application.1 By three issues, which we
address out of order, Dos Republicas asserts that the trial court erred in denying its
petition for writ of mandamus because: (1) Judge Saucedo failed to perform a ministerial
duty; (2) Judge Saucedo committed an abuse of discretion in denying its permit
application; and (3) Judge Saucedo violated its due process rights. We agree with Dos
Republicas that the trial court erred when it concluded that Judge Saucedo did not abuse
his discretion when he considered floodwater quality as a basis for his decision to deny
Dos Republicas’ development permit. We reverse and remand.
I. BACKGROUND
This case involves unique issues pertaining to the purpose and scope of a local
Maverick County, Texas ordinance and the authority of the Maverick County Floodplain
Administrator in reviewing and issuing development permits. It also involves an
extensive factual history dating back to 1994.
A. Maverick County’s Flood Damage Prevention Ordinance
In 1977, the Federal Insurance Administrator designated areas of Maverick County
as “special flood hazards.” See 44 C.F.R. § 64.6; Maverick County, Tex., Flood Damage
Prevention Ordinance art. 3, § B (Aug. 12, 1996). In order to obtain flood insurance in
areas designated as “special flood hazards,” Maverick County was required to implement
1 This case is before the Court on transfer from the Fourth Court of Appeals in San Antonio
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE
ANN. § 73.001 (West, Westlaw through 2015 R.S.).
2
a flood plain management plan for flood-prone areas. See 44 C.F.R. § 60.3. The Texas
Legislature authorized political subdivisions qualifying for federal flood insurance under
the National Flood Insurance Program (NFIP) to adopt and promulgate reasonable rules
necessary to comply with the provisions of the Texas Water Code. See TEX. W ATER
CODE ANN. § 16.318 (West, Westlaw through 2015 R.S.). Specifically, the legislature
enacted chapter 16 of the Texas Water Code for the express purpose of “securing flood
insurance coverage under [the National Flood Insurance Act of 1968].” Id. § 16.312
(West, Westlaw through 2015 R.S.).
Pursuant to section 16.318 of the Texas Water Code, the Maverick County
Commissioner adopted a Flood Damage Prevention Ordinance (the Ordinance) on
August 12, 1996, for the express purpose of minimizing flood losses. 2 Id. § 16.318
(West, Westlaw through 2015 R.S.); Maverick County, Tex., Flood Damage Prevention
Ordinance art. 1, §§ A–D. The Ordinance complies with the requirements of the Federal
Emergency Management Agency (FEMA), as codified in the code of federal regulations3
and provides the following “Statement of Purpose”:
It is the purpose of this ordinance to promote the public health, safety and
general welfare and to minimize public and private losses due to flood
conditions in specific areas by provisions designed to:
(1) Protect human life and health;
2 The Ordinance provides that “[t]he Legislature of the State of Texas has in (statutes) VTS-Water
Code 16.318 delegated the responsibility of local governmental units to adopt regulations designed to
minimize flood losses.” Maverick County, Tex., Flood Damage Prevention Ordinance art. 1, § A (Aug. 12,
1996). Section 16.318 of the Texas Water Code provides that “[p]olitical subdivisions which qualify for the
National Flood Insurance Program, . . . may adopt and promulgate reasonable rules which are necessary
for the orderly effectuation of the respective authorizations herein.” See TEX. W ATER CODE ANN. § 16.318
(West, Westlaw through 2015 R.S.).
3 See 44 C.F.R. § 60.3
3
(2) Minimize expenditure of public money for costly flood control
projects;
(3) Minimize the need for rescue and relief efforts associated with
flooding and generally undertaken at the expense of the
general public;
(4) Minimize prolonged business interruptions;
(5) Minimize damage to public facilities and utilities such as water
and gas mains, electric, telephone and sewer lines, streets and
bridges located in floodplains;
(6) Help maintain a stable tax base by providing for the sound use
and development of flood prone areas in such a manner as to
minimize future flood blight areas; and
(7) Insure that potential buyers are notified that property is in a
flood area.
Maverick County, Tex., Flood Damage Prevention Ordinance, art. 1, § C.
Under the ordinance, Judge Saucedo, as the current County Judge of the Maverick
County Commissioners Court, also serves as the County’s Floodplain Administrator. Id.
art. 1, § A. Pursuant to the authority conveyed in the Ordinance, Judge Saucedo acts
under a different capacity as Floodplain Administrator than in his role as county judge.
See id. art. 1. As the Floodplain Administrator, Judge Saucedo reviews permits for
development in the floodplain and determines whether to grant or deny the same pursuant
to the provisions set forth in the Ordinance. See id. art. 1 § A; see also id. art. 4, § B(2).
B. Facts Regarding Dos Republicas’ Permit Application
In 1992, Dos Republicas Resources Co. (DRRC) applied for a surface mining
permit for a 2,700 acre coal-mining project near Eagle Pass, Texas, which the Railroad
4
Commission of Texas (TRRC) granted in 1994 and issued April 11, 2000.4 Portions of
the property lay within the FEMA designated floodplain boundaries of Elm Creek and two
of its tributaries. In 1998, DRRC submitted a floodplain development permit application
to the Floodplain Administrator of Maverick County. The Floodplain Administrator, Judge
Saucedo’s predecessor, approved the permit.
In January 2009, DRRC transferred its mining permit to Dos Republicas. 5 Shortly
thereafter, in November of 2009, Dos Republicas sought to “renew, revise, and expand”
the existing permit and began the permitting process with the TRRC. The new permit
covers a 6,346-acre area and provides approximately 2,569 acres for mining during the
seven-year “life-of-mine.” The permit proposed other “disturbances”—including office
and shop facilities, a railroad loop, a coal load-out area, and diversions and ponds—
include an additional 1,821 acres. The residents of Maverick County, Maverick County,
the City of Eagle Pass, and several federally designated Native American Tribes
contested Dos Republicas’ planned coal mining expansion before the TRRC.
Nonetheless, in January 2014 the TRRC granted Dos Republicas a mining permit.
While its permit application was still pending before the TRRC, in November 2011,
Dos Republicas sought a new floodplain development permit from Judge Saucedo. Nine
months after Dos Republicas submitted its application, and before Judge Saucedo acted
on the application, FEMA revised its floodplain designations and issued a new floodplain
map. On September 4, 2013, Dos Republicas filed a supplemental permit application to
4 This permit, although not the basis of this appeal, was involved in litigation of its own. See R.R.
Com’m of Tex. v. Coppock, 215 S.W.3d 559 (Tex. App.—Austin 2007, pet. denied).
5 Dos Republicas is not organizationally related to the former permittee, DRRC.
5
address FEMA’s revisions.
Judge Saucedo did not make a decision on Dos Republicas’ application for over a
year, and on March 25, 2015, Dos Republicas filed a petition for writ of mandamus in the
293rd District Court of Maverick County, seeking to compel Judge Saucedo to act on its
application. Approximately two weeks later, Judge Saucedo issued an order stating “I
am in receipt of Dos Republicas[’] Request for Floodplain Permit. After reviewing the
Request, I am hereby denying it.” Dos Republicas then amended its petition for writ of
mandamus, seeking to compel Judge Saucedo to issue the floodplain development
permit. Dos Republicas contended before the trial court that mandamus was appropriate
to compel Judge Saucedo to perform a ministerial function and, in the alternative, that
Judge Saucedo abused his discretion by denying Dos Republicas’ application and by
failing to provide findings of fact and conclusions of law with the denial. Dos Republicas
also contended that the permitting process violated its rights to procedural due process.
On October 9, 2014, after a full evidentiary hearing, the trial court denied Dos Republicas’
petition for writ of mandamus and later entered specific findings of fact and conclusions
of law. This appeal followed.
II. STANDARD OF REVIEW
“A writ of mandamus will issue to compel a public official to perform a ministerial
act.” Withers v. Comm’rs Ct. of Bandera County, 75 S.W.3d 528, 529 (Tex. App.—San
Antonio 2002, no pet.) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 793
(Tex. 1991); Medina County Comm'rs Ct. v. Integrity Group, Inc., 21 S.W.3d 307, 309
(Tex. App.—San Antonio 1999, pet. denied)). Generally, mandamus will not issue to
compel a public official to perform an act which involves an exercise of discretion.
6
Anderson, 806 S.W.2d at 793. However, mandamus may issue in a proper case to
correct a clear abuse of discretion by a public official. Id. Mandamus may also issue to
correct a due process violation. Milikin v. Jeffrey, 299 S.W. 397, 398 (Tex. 1927) (orig.
proceeding) (“Mandamus is an available remedy where the elements of due process have
not been accorded to one rightfully entitled thereto.”).
An action for a writ of mandamus initiated in the trial court is a civil action subject
to appeal as any other civil suit. Anderson, 806 S.W.2d at 792 n.1. In such an action,
we determine whether the trial court erred by reviewing the trial court's findings of fact
and conclusions of law in accordance with standards generally applicable to a trial court's
findings and conclusions. Id. at 794 n.2; see also Moffitt v. Town of South Padre Island,
No. 13-14-00453-CV, 2001 WL 34615363, at *2 (Tex. App.—Corpus Christi Nov. 1, 2001,
no pet.) (mem. op.). We review findings of fact for legal and factual evidentiary support,
and we review conclusions of law de novo.6 Dallas Area Rapid Transit v. Dallas Morning
News, 4 S.W.3d 469, 473 (Tex. App.—Dallas 1999, no pet.); see also Moffitt, 2001 WL
34615363, at *2–3.
While findings of fact have the same force and dignity as a jury's verdict upon jury
6 The following standards are used when reviewing a trial court’s fact findings. For a legal
sufficiency challenge, we consider the evidence in the light most favorable to the fact-finder's decision and
indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). When performing a factual sufficiency review of the trial court’s fact findings, we consider all
evidence to determine if the trial court’s finding is “so against the great weight and preponderance of the
evidence that it is clearly wrong and unjust.” Id. at 826.
When reviewing the trial court's legal conclusions, we evaluate them independently, determining
whether the trial court correctly drew the legal conclusions from the facts. Dallas Morning News v. Bd. of
Trs., 861 S.W.2d 532, 536 (Tex. App.—Dallas 1993, writ denied). Conclusions of law will be upheld on
appeal if the judgment can be sustained on any legal theory supported by the evidence. Mack v. Landry,
22 S.W.3d 524, 528 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Spiller v. Spiller, 901 S.W.2d
553, 556 (Tex. App.—San Antonio 1995, writ denied)).
7
questions, they are not conclusive when a complete reporter's record appears in the
record, as here. See Tucker v. Tucker, 908 S.W2d 530, 533 (Tex. App.—San Antonio
1995, writ denied). The legal conclusions of the trial court are not binding upon an
appellate court; instead, the appellate court is free to draw its own legal conclusions.
See Pegasus Energy Group, Inc. v. Cheyenne Pet. Co., 3 S.W.3d 112, 121 (Tex. App.—
Corpus Christi 1999, pet. denied).
III. DUE PROCESS
By its third issue, which we address first, Dos Republicas contends that the trial
court erred when it determined that Judge Saucedo did not abuse his discretion when he
denied Dos Republicas’ permit application without a hearing. The trial court entered a
“conclusion of law” that
the Ordinance does not deprive [Dos Republicas] of the use of its property
because [Judge Saucedo’s] denial of [Dos Republicas’s] Development
Permit Application does not deprive it of all economically viable uses of its
property, therefore due process is not an issue, and the denial was not
arbitrary or capricious or an abuse of discretion.
We review the trial court’s conclusion de novo. Dallas Area Rapid Transit, 4 S.W.3d at
473. The trial court’s conclusion of law will be upheld if it can be sustained on any legal
theory supported by the evidence. Mack, 22 S.W.3d at 528; Spiller, 901 S.W.2d at 556.
“A deprivation of personal property without due process violates the United States
and Texas Constitutions.” Tex. Workers' Comp. Comm'n v. Patient Advocates of Tex.,
136 S.W.3d 643, 658 (Tex. 2004); see Smith v. City of League City, 338 S.W.3d 114, 127
(Tex. App.—Houston [14th Dist.] 2011, no pet.). The right to procedural due process
requires notice and an opportunity to be heard at a meaningful time and in a meaningful
manner with respect to a decision affecting an individual's property rights. Tex. Workers'
8
Comp. Comm'n, 136 S.W.3d at 658; see Smith, 338 S.W.3d at 127.
Under Texas common law, property ownership comes with a “bundle of rights”
which includes, among other things, the rights of possession and use. Evanston Ins. Co.
v. Legacy of Life, Inc., 370 S.W.3d 377, 382–83 (Tex. 2012). However, property owners
do not have a constitutionally protected, vested right to use property in any certain way
without restriction. City of La Marque v. Braskey, 216 S.W.3d 861, 863 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied). Thus, limitations on property rights may be
imposed by appropriate government action under its police power. Severance v.
Patterson, 370 S.W.3d 705, 710 (Tex. 2012).
A right is “vested” when it “has some definitive, rather than merely potential
existence.” Braskey, 216 S.W.3d at 864 (citing Tex. S. Univ. v. State Street Bank & Trust
Co., 212 S.W.3d 893, 903 (Tex. App.—Houston [1st Dist.] 2007, no pet.); BLACK'S LAW
DICTIONARY 1595 (8th ed. 2004) (defining “vested” as “[h]aving become a completed,
consummated right for present or future enjoyment; not contingent; unconditional;
absolute”)). Dos Republicas’ asserted harms—the denial of the permit and subsequent
inability to commence operations—concern the potential use of its property for mining,
which is not a constitutionally protected vested right. See id. (finding that the plaintiff had
no vested property right when a city ordinance restricted plaintiff’s use of her property as
a cat shelter). We therefore determine the trial court drew the correct legal conclusion
from the facts and did not err when it concluded that due process was not at issue. See
Dallas Area Rapid Transit, 4 S.W.3d at 473. We overrule Dos Republicas’ third issue.
IV. MINISTERIAL OR DISCRETIONARY DUTY TO GRANT PERMIT APPLICATION
By its first issue, Dos Republicas challenges the trial court's denial of its petition
9
for writ of mandamus by contending that Judge Saucedo, as the Floodplain Administrator,
had a purely ministerial duty to grant its permit application. In denying the petition, the
trial court concluded that, “[t]he Floodplain Administrator was not required, and did not
have a ministerial duty to grant [Dos Republicas’s] Development Permit Application and
Supplemental Application if the Floodplain Administrator found that the application did not
meet the provisions of the Ordinance and relevant factors.” We review the trial court’s
conclusion de novo. See Dallas Area Rapid Transit, 4 S.W.3d at 473.
Ministerial acts are those for which “the law prescribes and defines the duty to be
performed with such precision and certainty as to leave nothing to the exercise of
discretion or judgment.” Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425
(Tex. 2004) (citing Comm'r of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)). “If
the public official must obey an order, without having any choice in complying, the act is
ministerial.” Id. (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)).
If an action involves personal deliberation, decision, and judgment, however, it is
discretionary. Id.
The County Judge of Maverick County, as the designated floodplain administrator,
oversees the requirements of the Ordinance. Maverick County, Tex., Flood Damage
Prevention Ordinance art. 1, § A. As part of that responsibility, the Floodplain
Administrator is tasked with “[r]eview[ing] permit application[s] to determine whether
proposed building site[s] . . . will be reasonably safe from flooding” and is also required to
“review, approve, or deny all applications for development permits required by adoption
of this ordinance.” Id.
The Ordinance sets forth the required permit procedures for building or
10
development in a FEMA designated floodplain. See generally id. art 4, § C. For
instance, section C(1) of the Ordinance requires an individual to submit forms “showing
the location, dimensions, and elevation of proposed landscape alterations, existing and
proposed structures, . . . and the location of the foregoing in relation to areas of special
flood hazard.” Id. art. 4, § C(1). That section also requires information pertaining to
elevation, a certificate from a registered professional engineer regarding floodproofing
criteria, and a “description of the extent to which any watercourse or natural drainage will
be altered or relocated as a result of proposed development.” Id.
Approval or denial of a permit is further based on “all of the provisions of this
[O]rdinance” and ten enumerated factors. Id. art. 4, § C(2). Those ten factors are:
(a) The danger to life and property due to flooding or erosion damage;
(b) The susceptibility of the proposed facility and its contents to flood
damage and the effect of such damage on the individual owner;
(c) The danger that materials may be swept onto other lands to the injury
of others;
(d) The compatibility of the proposed use with existing and anticipated
development;
(e) The safety of access to the property in times of flood for ordinary and
emergency vehicles;
(f) The costs of providing governmental services during and after flood
conditions including maintenance and repair of streets and bridges,
and public utilities and facilities such as sewer, gas, electrical and
water systems;
(g) The expected heights, velocity, duration, rate of rise and sediment
transport of the flood waters and the effects of wave action, if
applicable, expected at the site;
(h) The necessity to the facility of a waterfront location, where
applicable;
11
(i) The availability of alternative locations, not subject to flooding or
erosion damage, for the proposed use; [and]
(j) The relationship of the proposed use to the comprehensive plan for
that area.
Id. art. 4, §§ C(2)(a)–(j). The above ten factors are not simple “check-the-box” factors,
but instead require the Floodplain Administrator to consider the impact that the
development would have on both the individual applying for the permit and the community
at large. See id.
Given the decision-making powers the Ordinance grants to Judge Saucedo, we
are not persuaded by Dos Republicas’ argument that Judge Saucedo had a ministerial
duty to grant its application. Dos Republicas asserts that the Ordinance lists all
necessary requirements to obtain a permit and that because it fulfilled those
requirements, Judge Saucedo had only one option—to grant the permit. We agree with
Dos Republicas that it met the stated requirements set forth in article 1, subsection C(1),
however, the requirements for a development permit do not begin and end with
subsection C(1). See id. art. 4, § C(1)–(2). The factors enumerated in art. 4 section
C(2) must also be considered by Judge Saucedo when granting or denying a
development permit. See id. The subsection C(2) factors Judge Saucedo is directed to
consider require him to utilize his discretion and judgment in analyzing whether the permit
application should be granted or denied. See id. art. 4, § C(2).
As such, Floodplain Administrator Judge Saucedo’s duty to “determine whether
proposed building site[s] . . . will be reasonably safe from flooding” is a discretionary one.
See id. art. 4, § B(2); Ballantyne, 144 S.W.3d at 425. The decision to grant or deny a
development permit is not one for which “the law prescribes and defines the duty to be
12
performed with such precision and certainty as to leave nothing to the exercise of
discretion or judgment.”7 See Ballantyne, 144 S.W.3d at 425. Judge Saucedo’s grant
or denial of a development permit is an action that involves personal deliberation,
decision, and judgment: it is therefore discretionary. See id.
We determine the trial court drew the correct legal conclusion from the facts before
it when it concluded that Judge Saucedo’s duty was discretionary. See id.; Mack, 22
S.W.3d at 528; Dallas Area Rapid Transit, 4 S.W.3d at 473; Spiller, 901 S.W.2d at 556.
Therefore, the trial court did not err in reaching its conclusion. See Mack, 22 S.W.3d at
528; Dallas Area Rapid Transit, 4 S.W.3d at 473; Spiller, 901 S.W.2d at 556. We
overrule Dos Republicas’ first issue.
VII. SCOPE OF FLOODPLAIN ADMINISTRATOR’S CONSIDERATION AND REVIEW
By its second issue, Dos Republicas contends alternatively that the trial court erred
in finding that Judge Saucedo did not abuse his discretion in denying its development
permit. Dos Republicas asserts via three subissues that the trial court’s findings of fact
and conclusions of law were made in error because Judge Saucedo abused his discretion
by: (a) failing to consider the Ordinance’s mandatory factors; (b) failing to provide any
reason or explanation for denying the permit; and (c) considering irrelevant factors outside
of the Ordinance’s exclusive list. We review the contested findings of fact for legal and
7 In its briefing, Dos Republicas argues that, because it conclusively established that it was entitled
to have the permit granted, the permitting process was ministerial. This argument incorrectly assumes
that the strength of the permit application itself, as opposed to the provisions of the Ordinance, dictate
whether an action is ministerial or discretionary. We disagree with Dos Republicas—whether Judge
Saucedo’s review was discretionary or ministerial depends on the authority granted to him by the Ordinance
and not on the strength of the permit application. See Ballantyne v. Champion Builders, Inc., 144 S.W.3d
417, 425 (Tex. 2004) (noting that ministerial acts are those for which “the law prescribes and defines the
duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or
judgment”).
13
factual evidentiary support, and we review conclusions of law de novo. See Dallas Area
Rapid Transit, 4 S.W.3d at 473; see also Moffitt, 2001 WL 34615363, at *2.
A. Order Requirements
Dos Republicas asserts in its subissue (b) that Judge Saucedo abused his
discretion by denying its permit application via a two sentence letter and claims that Judge
Saucedo was required to provide his reasons for denying Dos Republicas’ permit.8 The
trial court found that the Ordinance does not require the Floodplain Administrator’s written
denial to specifically address the requirements and/or factors considered as the basis for
the decision.9 The trial court also concluded that Judge Saucedo was “not required to
provide the reasons for denying [Dos Republicas’s] Development Permit Application and
Supplemental Application at the time of issuing the denial, and the failure to do so did not
constitute an abuse of discretion.” We review the trial court’s conclusion of law de novo
and determine whether the trial court correctly drew its legal conclusions from the facts.
See Dallas Area Rapid Transit, 4 S.W.3d at 473.
In support of its argument, Dos Republicas cites Alabama case law from the 1970s
for the proposition that it is an abuse of discretion to deny a permit application “without
any statement of the reasons for denying the building permit.” Pritchett v. Nathan
Rodgers Const. & Realty Corp., 379 So. 2d 545, 547 (Ala. 1979). We disagree with Dos
Republicas that Pritchett stands for that proposition. We note that the portion of the
8 Because Dos Republicas’ argument in support of sub-issue (a) depends in part on our
determination of its sub-issue (b), we address sub-issue (b) first.
9 Dos Republicas did not specifically contest the trial court’s finding that the Ordinance does not
require the written order to contain the basis for the decision.
14
opinion cited in Dos Republicas’ brief was a recitation of the party’s contention and was
not the holding of the Alabama Supreme Court. See Pritchett, 379 So. 2d at 547. In
Pritchett, the Alabama Supreme Court held that the City abused its discretion by arbitrarily
exercising its authority on a “case-by-case” basis. Id. at 548.
Dos Republicas proceeds to argue that the power of Texas courts to judicially
review Judge Saucedo’s decision necessarily implies a power to require Judge Saucedo
to supply any reasons or explanations necessary for understanding the final order. The
Texas Supreme Court has stated that an explanatory order is essential for judicial review
of an agency order, stating that appellate courts “may only consider what was written by
the Commission in its order, and we must measure its statutory sufficiency by what it
says.” Morgan Drive Away, Inc. v. R.R. Comm’n of Tex., 498 S.W.2d 147, 152 (Tex.
1973) (recognizing that the enabling legislation required the commission to enter written
findings of fact to support its order); see City of El Paso v. El Paso Elec. Co., 851 S.W.2d
896, 900 (Tex. App.—Austin 1993, writ denied) (holding that judicial review “implies a
power to require the Commission to supply any reasons or explanations necessary for
the reviewing court to understand the Commission’s final order” so that there may be
“meaningful judicial review” rather than a “charade of the real thing”). But see Webster
v. Tex. Water Rights Comm’n, 518 S.W.2d 607, 610 (Tex. App.—Austin 1975, writ ref’d
n.r.e.) (recognizing that “[u]nder the administrative procedure of the State, the courts have
not required an agency to include findings and conclusions in an administrative order
when such were not required by statute”).
We note that the cases relied on by Dos Republicas involve Texas administrative
agencies. The Texas Government Code defines a “state agency” as: “a state officer,
15
board, commission, or department with statewide jurisdiction that makes rules or
determines contested cases.” TEX. GOV’T CODE ANN. § 2001.003(7) (West, Westlaw
through 2015 R.S.). Judge Saucedo, as Floodplain Administrator of Maverick County,
does not qualify as a state agency as defined in the government code and neither the
enabling legislation nor the Ordinance require more than the approval or denial of permit
applications. See id.; TEX. W ATER CODE ANN. § 16.318; see also South Plains Lamesa
R.R., Ltd., v. High Plains Underground Water Conservation Dist. No. 1, 52 S.W.3d 770,
777 (Tex. App.—Amarillo 2001, no pet.) (recognizing that the Administrative Procedure
and Practice Act does not apply to a water district because it is not a state agency with
statewide jurisdiction, but is instead a regional political subdivision). Therefore, the
above cases detailing agency procedure are helpful, but they are not controlling.
However, assuming without deciding that a meaningful judicial review from the
denial of a permit by a floodplain administrator is required, we disagree that Dos
Republicas has been denied its opportunity for judicial review as a result of Judge
Saucedo’s two sentence denial. The parties had a full evidentiary hearing before the
trial court—Dos Republicas even referred to it as a “trial on the merits” in its briefing. Dos
Republicas also submitted the deposition transcript of Judge Saucedo as evidence where
Judge Saucedo was questioned at length about the basis of his ruling. The record before
this Court fully discloses Judge Saucedo’s reasons for denying Dos Republicas’
development permit. See, e.g., Morgan Drive Away, 498 S.W.2d 152; c.f. Village of Tiki
Island v. Premier Tierra Holdings, Inc., 464 S.W.3d 435, 442 (Tex. App.—Houston [14th
Dist.] 2015, no pet. h.) (recognizing that the plaintiff’s request for declaratory relief failed
to present a justiciable controversy because the record did not disclose the reasons why
16
the City denied the permit). Requiring the record to show Judge Saucedo’s basis for the
denial preserves the court’s ability to engage in a meaningful judicial review without
adding requirements not included in the Ordinance.
Because the basis for Judge Saucedo’s ruling was apparent from the record before
the trial court we agree with the trial court’s legal conclusion that Judge Saucedo was not
required to provide his reasons for denying the permit at the time of issuing the denial.
See Morgan Drive Away, 498 S.W.2d 152. We conclude that the trial court did not err
when it determined that Judge Saucedo did not abuse his discretion by issuing a two
sentence denial letter instead of explaining his reasons in more detail. See Dallas Area
Rapid Transit, 4 S.W.3d at 473; see also Moffitt, 2001 WL 34615363, at *2. We overrule
subsection (b) of Dos Republicas’ second issue.
B. Consideration of Mandatory Factors
Dos Republicas also asserts that Judge Saucedo abused his discretion because
he failed to consider factors the legislature directed him to consider. The trial court
entered a “finding of fact” that Judge Saucedo “based his decision to deny [Dos
Republicas’] Development Permit on all of the provisions of the Ordinance and the
relevant factors, as he was authorized to do by article 4 of the Ordinance” and entered a
“conclusion of law” that Judge Saucedo “considered all of the provisions of the Ordinance
as well as the relevant factors as per article 4, section C(2) of the Ordinance, and denial
of [Dos Republicas’] Development Permit did not constitute an abuse of discretion.”
We review the trial court’s fact finding that Judge Saucedo properly based his
decision on the provisions of the Ordinance and all relevant factors for legal and factual
evidentiary support. See Dallas Area Rapid Transit, 4 S.W.3d at 473; see also Moffitt,
17
2001 WL 34615363, at *2. We review de novo the trial court’s legal conclusion that
Judge Saucedo did not abuse his discretion. See Dallas Area Rapid Transit, 4 S.W.3d
at 473; see also Moffitt, 2001 WL 34615363, at *2
A public official acting pursuant to statutory authority abuses its discretion when it
fails to consider a factor the legislature directs it to consider. See City of El Paso v.
Pub. Util. Comm’n, 883 S.W.2d 179, 184 (Tex. 1994); see also Stolte v. County of
Guadalupe, No. 04-04-00083-CV, 2004 WL 2597443, at *4 (Tex. App.—San Antonio Nov.
17, 2004, no pet.) (mem. op.) (recognizing that a commissioners court cannot add
substantive requirements not contained within a statute). The legislature delegated its
rule-making authority, through section 16.318 of the water code, to political subdivisions
qualifying for the National Flood Insurance Program. See TEX. W ATER CODE ANN.
§ 16.318. Maverick County, as a qualifying political subdivision, adopted the Ordinance
to control floodplain development. The Ordinance controls the considerations and
requirements involved in the permit application process. See Maverick County, Tex.,
Flood Damage Prevention Ordinance art. 4, § C(2). Judge Saucedo abused his
discretion if he did not comply with the requirements of the Ordinance in reviewing and
deciding Dos Republicas’ permit application.
1. Factors to be Considered
As a preliminary matter, we must determine which parts of the Ordinance Judge
Saucedo was required to consider in making his decision to grant or deny development
permits. Dos Republicas contends that Judge Saucedo was limited to consider only the
factors and requirements contained in the permitting section, which is article 4, section C.
However, Judge Saucedo responds that article 4, section C(2) directs him to consider “all
18
of the provisions” of the Ordinance. To determine the scope of Judge Saucedo’s review,
as set by Maverick County under the rule-making authority delegated from the Texas
Legislature, we will construe the Ordinance pursuant to the rules of statutory construction.
The same rules that govern statutory construction apply to the construction of
municipal ordinances. Greater Houston German Shepherd Dog Resuce, Inc. v. Lira, 447
S.W.3d 365, 370 (Tex. App.—Houston [14th Dis.] 2014, pet. filed) (citing Seawall E.
Townhomes Ass'n, Inc. v. City of Galveston, 879 S.W.2d 363, 364 (Tex. App.—Houston
[14th Dist.] 1994, no writ)). “Our primary objective is to give effect to the enacting body's
intent.” Id. (citing TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.
2011)). When construing an ordinance, we presume “the ordinance is intended to be
effective, a just and reasonable result is intended, a result feasible of execution is
intended, and the public interest is favored over private interest.” Id. The literal text of
the provision is the most reliable expression of the intent of an ordinance. See Alex
Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006).
We also presume that the language of the ordinance was carefully selected and
that every word and phrase was used for a purpose. See Tex. Lottery Comm'n v. First
State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We avoid treating any
language as surplusage where possible. Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d
578, 580 (Tex. 2000). In addition, we consider the ordinance as a whole rather than its
isolated parts. See Edwards v. City of Tomball, 343 S.W.3d 213, 221 (Tex. App.—
Houston [1st Dist.] 2011, no pet.).
Both parties agree that Judge Saucedo was required to consider the requirements
and factors set out in article 4, section C. However, the parties dispute the meaning of
19
the following text from section C(2): “Approval or denial of a Development Permit by the
Floodplain Administrator shall be based on all of the provisions of this ordinance and the
following relevant factors[.]” Maverick County, Tex., Flood Damage Prevention
Ordinance art. 4, § C(2) (emphasis added). Our primary objective is to give effect to the
County Commissioner’s Court’s intent in enacting the Ordinance. See Lira, 447 S.W.3d
at 370. The stated purpose of the ordinance is “to promote the public health, safety and
general welfare and to minimize public and private losses due to flood conditions in
specific areas . . . .” Id. art. 1, § C. We presume the Ordinance is effective, just,
reasonable, feasibly executed, and that public interest is favored over private interest.
See id. In reviewing the literal text of the Ordinance, which is the most reliable
expression of intent, we note the conjunctive use of “and” between “the provisions of this
ordinance” and “the following relevant factors.” See Johnson, 209 S.W.3d at 651. We
presume that the conjunctive “and” was carefully and purposefully used. See Tex.
Lottery Comm’n, 325 S.W.3d at 635. A logical reading of the section’s use of the
conjunctive therefore requires Judge Saucedo to consider both the general provisions of
the Ordinance and the specific relevant factors and requirements set forth in article 4,
section C. See Maverick County, Tex., Flood Damage Prevention Ordinance art. 4, § C.
Otherwise, the language in specifying that the approval or denial of a permit be based on
“all of the provisions of this ordinance” would be rendered surplusage. See Spradlin, 34
S.W.3d at 580 (recognizing that courts should avoid treating language as surplusage).
Further, reviewing permits for compliance with the Ordinance as a whole favors the public
interest. See Lira, 447 S.W.3d at 370. Considering the Ordinance as a whole, we
construe the Ordinance to require Judge Saucedo to consider the whole Ordinance and
20
the relevant enumerated factors in granting or denying a development permit. See
Edwards, 343 S.W.3d at 221.
2. Factors Actually Considered
Now that we have determined that Judge Saucedo was required to look to the
whole Ordinance, including the permitting provisions of article 4, section C, we next
address Dos Republicas’ contention that Judge Saucedo did not consider any of the ten
factors set out in article 4, section C(2) of the Ordinance. In support of its position, Dos
Republicas raises the following arguments: (1) Judge Saucedo’s two sentence denial
letter is evidence he failed to consider the required factors; (2) Judge Saucedo testified
that he did not consult with an expert prior to denying the permit application; and (3) Judge
Saucedo testified that he did not consider the permit application or the attached expert
report.
Initially, as we determined above, Judge Saucedo was not required to include the
reasons he denied the permit in the denial itself. While Judge Saucedo admitted that he
did not consult with an engineer in reviewing the permit, we do not find any provision in
the Ordinance that would require him to do so—failure to consult an engineer does not
equate to a failure to consider the Ordinance’s mandatory factors. Additionally, Judge
Saucedo testified that: (1) he reviewed Dos Republicas’ permit application; (2) the
application met the criteria in article 4, section C(1); (3) he disagreed that the application
met the criteria of article 4, section C(2) (a)–(c); and (4) he considered all factors and the
Ordinance as a whole in making his determination.
We find there was both factually and legally sufficient evidence in the record to
support the trial court’s finding of fact that Judge Saucedo based his decision to deny the
21
permit on all of the provisions of the Ordinance. See Dallas Area Rapid Transit, 4 S.W.3d
at 473; see also Moffitt, 2001 WL 34615363, at *3. We further find that the trial court
correctly drew its legal conclusions from the facts in its conclusion of law that Judge
Saucedo considered all provisions of the Ordinance as well as the relevant factors, and
that the denial of Dos Republicas’s development permit on that basis did not constitute
an abuse of discretion. See Dallas Area Rapid Transit, 4 S.W.3d at 473; see also Moffitt,
2001 WL 34615363, at *3. We overrule subissue (a) of Dos Republicas’ second issue.
C. Consideration of Irrelevant Factors
Dos Republicas also asserts that Judge Saucedo abused his discretion because
he considered irrelevant factors in denying Dos Republicas’ permit. Specifically, Dos
Republicas points to Judge Saucedo’s statements and discovery responses where he
indicates that he based his decision on the best interest of Maverick County, his personal
experiences, coal mining regulations, and floodwater quality concerns. The trial court
entered a “conclusion of law” that Judge Saucedo “did not consider any irrelevant factors
when denying [Dos Republicas’s] Development Permit Application” and that he did not
abuse his discretion. The trial court also entered “findings of fact” that the “best interest”
of Maverick County, Judge Saucedo’s personal experiences, the Texas Coal Mining
Regulations, and floodwater quality were not bases for Judge Saucedo’s decision,
standing alone, but were mere references when considering factors (a)–(c) of article 4,
subsection C(2). We review the trial court’s fact findings that Judge Saucedo did not
consider irrelevant factors for legal and factual evidentiary support. See Dallas Area
Rapid Transit, 4 S.W.3d at 473; see also Moffitt, 2001 WL 34615363, at *2. We review
the trial court’s legal conclusion that Judge Saucedo did not abuse his discretion de novo.
22
See Dallas Area Rapid Transit, 4 S.W.3d at 473; see also Moffitt, 2001 WL 34615363, at
*2.
1. Applicable Law
A political subdivision may not exceed the powers granted it when exercising its
authority. See S. Plains Lamesa R.R., Ltd., 52 S.W.3d at 779 (recognizing that “a district
can exercise no authority that has not been clearly granted by the Legislature.”). If a
political subdivision considers factors beyond those found in the relevant enabling
legislation, then it is acting beyond its delegated authority. See id. Such action is
therefore arbitrary, capricious and constitutes an abuse of discretion. See id.; see also
Tex. Dep’t of Ins. v. State Farm Lloyds, 260 S.W.3d 233, 256 (Tex. App.—Austin 2008,
no pet.).
In State Farm Lloyds, the Austin Court of Appeals determined that the Department
of Insurance acted arbitrarily and capriciously when it considered a factor not listed in the
code as a basis for denying an insurance rate requested by State Farm Lloyds. See 260
S.W.3d at 256. The Austin Court held:
[E]ven if some of the factors on which the order was based were relevant,
at least one of the factors was irrelevant. In other words, even if the
commissioner also considered other legally relevant factors, the order was
based in part on at least one legally irrelevant factor. . . . Because the
commissioner considered at least one legally irrelevant factor in issuing his
order, we agree that the order is arbitrary and capricious.
Id.; see also State of Tex.’s Agencies and Inst. of Higher Learning v. Pub. Utility Comm’n
of Tex., 450 S.W.3d 615, 625 (Tex. App.—Austin 2014, pet. filed) (recognizing that an
agency’s decision is arbitrary and capricious or results from an abuse of discretion if the
agency considers an irrelevant factor); Stolte, No. 04-04-000083-CV, 2004 WL 2597443,
23
at *4 (holding that the Guadalupe Commissioners Court abused its discretion when it
reviewed two factors that it was not directed to when reviewing a plat application).
The Amarillo Court of Appeals has also addressed this issue. See S. Plains
Lamesa R.R., 52 S.W.3d at 774. In that case, a landowner sought and received a permit
to drill a well on its property. Id. After the permit issued, other neighboring landowners
complained to the water district, causing the water district to revoke the permit. Id. The
district stated that the property description was insufficient to establish that well spacing
regulations were met. Id. The landowner filed another permit application that remedied
alleged deficiencies and complied with the district’s spacing requirements. Id. The
second permit application was denied though the district admitted that the landowner
complied with the spacing requirements. Id. After the neighboring landowners filed suit,
the district admitted that it denied the permit to “prevent disproportionate taking of water.”
Id. The court found that “[t]he rule contains no provisions that would authorize the denial
of a permit because a well would produce a disproportionate amount of water . . . .” and
held that “the district’s action in revoking the well permit and denying the other application
for a well permit was improper.” Id. at 778.
Because considering even one legally irrelevant factor in issuing an order makes
it arbitrary and capricious, we must determine if Judge Saucedo considered factors and/or
provisions not contemplated by the Ordinance when he denied Dos Republicas’ permit
application. See State Farm Lloyds, 260 S.W.3d at 256; S. Plains Lamesa R.R., 52
S.W.3d at 778.
2. Discussion
24
As the Floodplain Administrator, Judge Saucedo had only the authority conveyed
to him pursuant to the Ordinance. The Ordinance delegated to Judge Saucedo the
authority to grant or deny permit applications for development in the Maverick County
floodplain. Maverick County, Tex., Flood Damage Prevention Ordinance art. 4, § B(2).
The Ordinance also set forth the guidelines Judge Saucedo was required to follow in
granting or denying permits—consideration of factors not found in the ordinance would
constitute an abuse of discretion. See id.; see also State Farm Lloyds, 260 S.W.3d at
256.
Judge Saucedo stated, via his deposition and his response to interrogatories, that
he considered the best interest of the community, his personal experiences dealing with
flooding in the past, the Texas Mining Code, and floodwater quality in determining that
Dos Republicas’ permit application did not satisfy factors (a)–(c) of article 4, section C(2)
of the Ordinance. Though the above considerations are not expressly contained in the
Ordinance, the trial court found that they were not a basis for Judge Saucedo’s decision,
but were instead references Judge Saucedo used in considering enumerated factors (a)–
(c). The trial court also entered a separate fact finding that Judge Saucedo “denied [Dos
Republicas’s] permit based upon the concern that if the permit was approved, the
occurrence of a flooding event (such as the flooding events experienced by Maverick
County in the past) will carry sediment and/or contaminants downstream into homes of
Maverick County citizens and into Elm Creek.”
We agree with the trial court that Judge Saucedo’s personal knowledge of past
flooding events was relevant as a reference in considering factors (a)–(c) and that “the
best interest of the community” is appropriate when considering the designated factors in
25
light of the stated purpose of the Ordinance. We also agree with the trial court that the
Texas Mining Code was relevant to a determination of factors (a)–(c) because it provided
important guidelines for the planning and construction of sediment ponds in flood zones.
It is clear that Judge Saucedo had a number of concerns regarding Dos Republicas’
planned sediment ponds and their ability to contain a sufficient capacity of storm water in
a severe storm or in the face of concurrent storms.
However, Judge Saucedo also considered the effect the sediment ponds might
have on floodwater quality and potential downstream contamination. This is referenced
in the trial court’s finding that Judge Saucedo based his denial on the potential that a
flooding event would carry “sediment and/or contaminants” downstream into homes of
Maverick County citizens. The use of “and/or” in the trial court’s finding suggests as
possible the conclusion that Judge Saucedo denied Dos Republicas’ permit based solely
on his concern that contaminants could be carried downstream in a flooding event. See
In re United Scaffolding, Inc., 377 S.W.3d 685, 689–90 (Tex. 2012) (orig. proceeding)
(recognizing that the use of “and/or” “inherently leads to ambiguity and confusion” and
leaves open the possibility that one factor is the sole rationale). Though the trial court
could have found that the Ordinance requires Judge Saucedo to consider the transport
of sediment in granting or denying a permit application, at no point does the Ordinance
address “floodwater quality” or “contaminants.” See generally Maverick County, Tex.,
Flood Damage and Prevention Ordinance art. 1, § A, et. seq.
The Ordinance, when read as a whole, does not give Judge Saucedo the authority
to regulate “floodwater quality” or possible sources of water “contamination.” See id.
This limitation on the Ordinance’s scope is supported by its stated purpose and the history
26
behind its enactment. First, the purpose of the ordinance, as evidenced by its title and
provisions, is to prevent flood damage in Maverick County. See id. Second, Maverick
County adopted the Ordinance solely to ensure that its citizens were entitled to receive
FEMA flood insurance pursuant to the NFIP.10 See id. art. 1, § A (recognizing that the
Texas Legislature delegated rule making authority to local governmental units to “adopt
regulations designed to minimize flood losses”). In fact, the Ordinance is a form
document promulgated by FEMA for that very purpose. See TEXAS WATER DEVELOPMENT
BOARD, SAMPLE FEMA ORDINANCES, available at
http://www.twdb.texas.gov/flood/insurance/participation.asp (last visited September 15,
2015). We note that FEMA, acting pursuant to the NFIP, does not regulate floodwater
quality. See 42 U.S.C.A. § 4012. In Texas, the Texas Commission for Environmental
Quality (TCEQ) is tasked with regulating and permitting for floodwater quality. See 33
U.S.C.A. § 1342(b); TEX. W ATER CODE ANN. §§ 26.011, .027 (West, Westlaw through
2015 R.S.).
Judge Saucedo argues that floodwater quality and the potential for contamination
are important and relevant under the Ordinance because the purpose of the Ordinance
is, in part, to “promote the public health, safety and general welfare.” Therefore, he
claims that he is authorized to consider potential water contamination because it would
be detrimental to the health, safety, and general welfare of the community. However, we
10 See Remund v. State Farm Fire & Cas. Co. 483 Fed. Appx. 403, 405 (10th Cir. 2012)
(“Established under the National Flood Insurance Act of 1968, the [National Flood Insurance Program] NFIP
is designed to make flood insurance available “on a nationwide basis through the cooperative efforts of the
Federal Government and the private insurance industry” by “pooling risks, minimizing costs, and distributing
burdens equitably among those who will be protected by flood insurance and the general public. FEMA
administers the program . . . .”) (internal citations omitted).
27
disagree that this general statement included in the Ordinance’s “Statement of Purpose”
can be applied so broadly as to allow Judge Saucedo to consider a factor beyond the
scope of the Ordinance. As discussed above, floodwater quality is not a consideration
contemplated by the Ordinance, and we do not read the Ordinance to grant such
expansive power to the Floodplain Administrator: instead we find that the Floodplain
Administrator is required to consider the health, safety, and general welfare of the
community by fulfilling his specific task of ensuring that Maverick County will be
reasonably safe from flood damage. See Maverick County, Tex., Flood Damage
Prevention Ordinance art. 4, § B(2).
Nor do we read article 4, section C(2)(c) of the Ordinance that requires Judge
Saucedo to consider, as one factor, “[t]he danger that materials may be swept onto other
lands to the injury of others,” to include potential water contamination or floodwater
quality. See id. art. 4, § C(2)(c) (emphasis added). Our review of the language in
subsection C(2)(c), read alone or considered as part of the Ordinance as a whole, neither
creates additional areas of authority for Judge Saucedo nor expands his review to
considerations beyond flood damage prevention. Instead, we determine that the FEMA
form Ordinance directed Judge Saucedo to consider potential flooding hazards created
when materials are swept downstream in the course of a flood. See id.
Moreover, to the extent Judge Saucedo is concerned that floodwater quality is a
danger to the health and safety of the community, the Ordinance provides that he is
required to ensure that all permitting, including permitting for floodwater quality pursuant
to the Federal Water Pollution Control Act, is in place before he grants a permit for
development in the floodplain. See id. art. 4, § B(4). In Texas, the TCEQ provides the
28
required permitting and has jurisdiction and control over water quality in the State of
Texas. See 33 U.S.C.A. § 1342(b); TEX. WATER CODE ANN. §§ 26.011, .027. It is
undisputed that Dos Republicas applied for and received the necessary permits from the
TCEQ, including permits that pertain to discharge storm water and mine seepage and the
Texas Pollutant Discharge Elimination System (TPDES) permit.
We determine that the Ordinance does not give Judge Saucedo, as Floodplain
Administrator, the authority to base his determination to deny Dos Republicas’ permit
application on floodwater quality when the TCEQ had already issued the requisite permits
regulating the same. In fact, by the terms of the Ordinance, to the extent the authority
provided to Judge Saucdeo intersects with the authority of the TCEQ, the Ordinance
provides that “in the interpretation and application of this ordinance, all provisions shall
be . . . deemed neither to limit nor repeal any other powers granted under state statutes.”
Maverick County, Tex., Flood Damage Prevention Ordinance art. 3, § F. The TCEQ
retains the responsibility for permitting and controlling floodwater quality and potential
water contamination, and no provision of the Ordinance can, by the Ordinance’s own
terms, limit or repeal the authority given to the TCEQ by the Texas Legislature. See id.;
see also TEX. W ATER CODE ANN. §§ 26.011, .027.
We disagree with the trial court’s fact finding that floodwater quality was considered
as a “mere reference” to factors in the Ordinance because floodwater quality is beyond
the scope of the Ordinance’s purview and does not refer to one of the enumerated
factors.11 See City of Keller, 168 S.W.3d 822. Because Judge Saucedo considered
11 Moreover, Judge Saucedo may be preempted from considering water contamination or
floodwater quality in reference to his review of factors (a)–(c) by the Texas Legislature’s grant of authority
to the TCEQ. See Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 679 (Tex. 2013)
29
floodwater quality, an irrelevant factor not contained within the Ordinance, we determine
the trial court erred when it concluded that Judge Saucedo did not abuse his discretion in
considering floodwater quality. See Dallas Morning News, 861 S.W.2d at 536; see also
S. Plains Lamesa R.R., Ltd., 52 S.W.3d at 774. We sustain subsection (c) of Dos
Republicas’ second issue.
VIII. CONCLUSION
We reverse the order of the trial court denying Dos Republicas’ petition for writ of
mandamus on the ground that the trial court erred when it found that Judge Saucedo, as
Floodplain Administrator of Maverick County, did not abuse his discretion by considering
an irrelevant factor in denying Dos Republicas’ permit application. We remand to the
trial court for further proceedings in accordance with this opinion.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 8th
day of October, 2015.
(recognizing that the City of Houston could not pass an ordinance that effectively moots a decision of the
TCEQ to approve a permit under the Texas Clean Air Act).
30