Texas Supreme Court gives state district courts jurisdiction over water rights disputes

FILE: Brazos River in McLennan County (Photo by Elliot Wilson for KWTX)
FILE: Brazos River in McLennan County (Photo by Elliot Wilson for KWTX)(KWTX)
Published: May. 27, 2022 at 9:46 PM CDT
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WACO, Texas (KWTX) - In a significant decision governing water rights issues, the Supreme Court of Texas has ruled in a McLennan County case that state district courts – not the Texas Commission on Environmental Quality - has jurisdiction over water rights ownership disputes in Texas.

The opinion reverses a split decision by the 10th Court of Appeals in Waco and sends the case back to Waco’s 74th State District Court for further proceedings consistent with the Supreme Court opinion.

The sole issue on appeal in the case involving Pape Partners, Glenn R. Pape and Kenneth W. Pape vs. DRR Family Properties was whether the TCEQ has jurisdiction to adjudicate conflicting claims to ownership of surface-water rights.

The court ruled such claims must be decided in court, which overturns decisions by 74th State District Judge Gary Coley Jr., who dismissed the case, and Waco’s intermediate appellate court, which affirmed Coley’s order. Chief Justice Tom Gray of the 10th Court of Appeals dissented to the opinion signed off on by former justices Rex Davis and Al Scoggins.

While the case was pending in the Supreme Court, a number of groups, including the TCEQ, the Texas Farm Bureau, the Texas Water Conservation Association and the Texas & Southwestern Cattle Raisers Association, filed amicus briefs supporting the Pape’s argument that the issue should be decided in court, not by the TCEQ.

The opinion, submitted by Chief Justice Nathan L. Hecht, even cites the TCEQ’s amicus brief, saying “the commission explains that the term ‘water rights adjudication’ referenced … is a term of art under the Texas Water Code and relates to the commission’s issuance of certificates of adjudication” that entail the commission’s “determining the amount of use, place of use, purpose of use, point of diversion, rate of diversion, and where appropriate, the acreage to be irrigated.’

“That is, in TCEQ’s own words, an ‘administrative record-keeping function.’ Only a judicial process can determine property ownership,” the opinion states.

In a statement issued Friday, the Texas Farm Bureau said it is pleased with the ruling.

“Texas Farm Bureau was pleased that the Texas Supreme Court reversed the Waco Court of Appeals and determined – as we argued in our amicus brief – that the district courts, not the TCEQ, have jurisdiction over water rights title disputes.”

In a summary of the case, the Supreme Court opinion notes that in 2014, the Papes bought an 1,086-acre farm in McLennan County, including the right to use water diverted from the Brazos River for irrigation under a permit issued by the TCEQ.

TCEQ issued a surface-water use permit called a certificate of adjudication to a person whose ownership of “rights to the waters of a stream’ has been finally determined by a district court after both an initial administrative process and then a final judicial process,” according to the opinion.

The Papes recorded their purchase of water rights with the TCEQ, and the agency contacted other potentially interested landowners that they might own an interest in the water rights, including an adjacent landowner, DRR. DRR filed a change of ownership form, and the TCEQ determined that DRR owned a portion of the water rights.

The Papes appealed the decision, which was denied, prompting their lawsuit seeking a declaration that it owns all the water rights on the property it bought.

DRR filed a motion for summary judgment, claiming the Papes had not exhausted their administrative remedies. Coley granted the motion to dismiss, which the Papes appealed.

In an amicus brief filed with the Texas Supreme Court, the Texas Water Conservation Association asserted the Texas Water Code does not give the TCEQ exclusive jurisdiction to resolve conflicting claims of surface water rights ownership and that the separation of powers doctrine prohibits the TCEQ from adjudicating such disputes.

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