In 2007 the TCEQ proposed listing on the registry of state Superfund sites property owned by Woodward Industries, Inc. in Nacogdoches County. TCEQ notified the owners of the property, which had been used as a wood-treatment facility, and provided them with an opportunity to fund or conduct a remedial investgation. When the owners did not reply, TCEQ conducted a remdiation study in 2009 and, in 2011, notfied the potentially responsible parties, the Myrows and Union Pacific. the need to conduct the removal action. Once again, the owners demurred, so TCEQ proceeded to clean up the site.
Subsequently, in 2017 TCEQ brought suit against the owners to recover nearly $1.7 million in cleanup costs. The owners raised several defenses, including TCEQ’s failure to obtain a final agency/administrative order authorizing the cleanup and to mitigate its damages. Union Pacific alleged further that TCEQ improperly scored the site, failed to attempt to obtain funding from the federal government, third parties, or potentially responsible parties, and failed to provide adequate notice of its unauthorized cleanup activities. TCEQ filed a motion for partial summary judgment, asserting that the district court did not have jurisdiction over defendants’ defenses because they did not timely file suit for judicial review under § 361.321, Health & Safety Code, and waived their challenge to the propriety of TCEQ’s actions. The district court the motion and denied it. TCEQ appealed.
In an opinion by Justice Triana, the court of appeals affirmed, holding that it did not have jurisdiction over TCEQ’s interlocutory appeal. Section 51.014(a)(8), CPRC, authorizes an interlocutory appeal from an order that “grants or denies a plea to the jurisdiction by a governmental unit…” Defendants argued that TCEQ’s motion for partial summary judgment did not constitute a “plea to the jurisdiction” because it did seek to “defeat a cause of action without regard to whether the claims asserted have merit” (citations omitted). Analysing “the nature of the motion to determine whether it constitutes a plea to the jurisdiction,” the court concluded that TCEQ’s summary judgment motion “did not attempt to defeat any cause of action without regard to its merit.” Rather, the court held, “TCEQ’s motion … challenged certain defenses that Union Pacific and the Myrows raised in their answers to TCEQ’s cost-recovery suit againt them…. Neither the substance nor purpose of TCEQ’s motion show that it was, effectively, a plea to the jurisdiction, and this motion may not be recast as a plea to the jurisdiction on appeal to allow interlocutory review of the district court’s ruling.”
This case is particularly interesting because here the court of appeals rebuffed a state agency’s attempt to evade review of whether it acted within its statutory authority in a matter involving private property rights. It also, at least to us, demonstrates how capable and experienced the Austin Court of Appeals in deciding administrative appeals. Why we require a statewide court of appeals to apply well-settled principles of law, particularly administrative law, escapes us. Our existing courts of appeals do it all the time, and there was not a shred of evidence offered during the session that we need a specialized court of appeals for that purpose. In any event, we will soon have one, and an expensive one at that, but not because it improves the administration of justice in any appreciable way.
