City of San Antonio v. Texas Department of Health

738 S.W.2d 52, 1987 Tex. App. LEXIS 8616
CourtCourt of Appeals of Texas
DecidedSeptember 9, 1987
DocketNo. 3-86-142-CV
StatusPublished
Cited by6 cases

This text of 738 S.W.2d 52 (City of San Antonio v. Texas Department of Health) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of San Antonio v. Texas Department of Health, 738 S.W.2d 52, 1987 Tex. App. LEXIS 8616 (Tex. Ct. App. 1987).

Opinion

SHANNON, Chief Justice.

Appellants1 seek to set aside the judgment of the district court of Travis County which sustained the order of the Texas [54]*54Department of Health. The Department’s order permitted appellee Browning Ferris, Inc., to expand its Bexar County landfill site. This Court will affirm the judgment of the district court.

By several points of error, appellants insist that the agency erroneously closed the administrative hearing. The points are overruled.

Appellee applied to the Department for approval of a one hundred-six acre addition to its existing landfill on Tessman Road in southeast Bexar County. Appellee also requested an increase in the permissible elevation of the existing site. The Department scheduled a public hearing for the application. BEAT appeared and opposed the application. The City and County, although properly notified, elected not to appear and participate in the hearing. The hearing commenced on August 20, 1984, and closed on September 5,1984. On January 16, 1985, the hearings examiner filed his proposal for decision recommending approval of the application.

Although our record is incomplete, the parties agree that the City and the County then moved to intervene and for the agency to re-open the hearing to consider new evidence. The parties likewise agree that the agency re-opened the hearing by order in February 1985 “for the purpose of receiving evidence, not available at the time of the hearing, regarding land use in the vicinity of the site in question.” See San Diego Independent School District v. Central Education Agency, 704 S.W.2d 912 (Tex.App.1986, writ ref’d n.r.e.).

Appellee claims that the “land use” referred to in the agency’s order re-opening the hearing related to the proposed location of a large aquatic park, Sea World of Texas, near appellee’s landfill site. Sea World officials announced, thereafter, that the park would be located at a different location in Bexar County not near appellee’s land-fill site.

Following a period of discovery by the parties, appellee filed its “motion to close” the hearing pointing out that the change in land use supposedly relied on to re-open the hearing no longer existed because the aquatic park was not to be located near the landfill site and that any other “land use” evidence would be cumulative of that taken in the initial agency hearing. After hearing, the agency granted appellee’s “motion to close” on September 18, 1985.

The district court treated the agency’s action granting appellee’s “motion to close” the hearing as a reconsideration of the agency’s previous order re-opening the hearing. The district court concluded that there was no abuse of discretion in the agency’s reconsideration of its order reopening the hearing and its setting aside that order.

“The question of whether to re-open an administrative record to allow additional evidence is one addressed to the discretion of the administrative body.” City of El Paso v. Public Utility Comm’n of Texas, 609 S.W.2d 574, 578 (Tex.Civ.App.1980, no writ); Pan American Petroleum Corp. v. Railroad Comm’n, 335 S.W.2d 425 (Tex.Civ.App.1960, writ ref’d n.r.e.); Railroad Comm’n v. Herrin Transportation Co., 262 S.W.2d 426 (Tex.Civ.App.1953, writ ref’d n.r.e.). Absent such agency discretion, the almost inevitable gap between agency hearing and order would allow the continued introduction of evidence of new circumstances such that an evidentiary hearing might never be concluded. Interstate Commerce Comm’n v. Jersey City, 322 U.S. 503, 514-15, 64 S.Ct. 1129, 1134-35, 88 L.Ed. 1420 (1944). As an agency has discretion to re-open a hearing, the Court has concluded that it necessarily has discretion to reconsider its order re-opening the hearing and to set aside that order.

This Court has examined the proof adduced at the hearing to reconsider the order re-opening the evidence and is of the opinion that the district court did not err in concluding that the agency did not abuse its discretion in determining to set aside its order re-opening the hearing.

In a related point, appellants advance the curious argument that the agency should have considered the proof presented at the hearing convened in response to appellee’s motion to close in de[55]*55termining, on the merits, whether to grant appellee’s application to expand its landfill site. The point is without merit. The record makes plain that the purpose of the hearing was limited to determining whether or not to close the hearing. Once the agency exercised its discretion to close the hearing and not accept additional evidence, it would be wholly contradictory to then consider the evidence which it had just determined superfluous.

The City attacks the judgment claiming that the agency failed to include findings and conclusions directed to its order closing the hearing. In general, findings required by Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 16(b) (Supp.1987) are directed to the determinations made by the agency pursuant to its particular regulatory statute. See Frost v. Public Utility Comm’n of Texas, 672 S.W.2d 883 (Tex.App.1984, writ ref'd n.r.e.) (agency under no duty to make findings on factors not listed in regulatory statute); see also Railroad Comm’n v. Graford Oil Corp., 557 S.W.2d 946 (Tex.1977) (findings must support ultimate statutory findings required for decision). The City points to no statute or authority imposing a duty on the agency to make findings and conclusions concerning its own procedural orders. The point is overruled.

Appellant BEAT suggests that the district court erred in affirming the agency order to the extent it amends appellee’s permit to allow a twenty-nine foot increase in the allowable elevation of the landfill. As basis for its claim, BEAT claims that because the same height increase was denied in the agency order originally granting the permit (Permit 1410), the doctrine of res judicata bars the agency from considering and approving the amended request. The point of error is overruled.

In Al-Jazrawi v. Texas Bd. of Land Surveying, 719 S.W.2d 670 (Tex.App.1986, writ ref’d n.r.e.), this Court recently wrote:

A final administrative order bars subsequent agency adjudication of the same subject matter by the same party, Champlain Exploration, Inc. v. Railroad Comm’n, 627 S.W.2d 250 (Tex.App.1982, writ ref'd n.r.e.), unless allowed by statute, Sexton v. Mount Olivet Cemetery Association, 720 S.W.2d 129

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738 S.W.2d 52, 1987 Tex. App. LEXIS 8616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-san-antonio-v-texas-department-of-health-texapp-1987.