Texas Water Commission v. Lindsey

850 S.W.2d 183
CourtCourt of Appeals of Texas
DecidedOctober 21, 1992
Docket09-91-300 CV
StatusPublished
Cited by3 cases

This text of 850 S.W.2d 183 (Texas Water Commission v. Lindsey) 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
Texas Water Commission v. Lindsey, 850 S.W.2d 183 (Tex. Ct. App. 1992).

Opinions

OPINION

WALKER, Chief Justice.

This appeal results from a lawsuit filed by P.E. Lindsey, F.M. Martindale and Jack Martindale, appellees, against the Texas Water Commission (TWC), appellant. Suit was filed in the 1st Judicial District Court in and for Jasper County, Texas, Judge Joe Bob Golden, presiding.

Appellees tell us that their original suit is a suit for declaratory judgment, however, we view Plaintiffs’ Original Petition as more of a request to the trial court to hold 68 statutory provisions of the Texas Solid Waste Disposal Act (TSWDA), unconstitutional, for the most part without reason. Succinctly stated, appellees’ pleadings as well as their Motion for Summary Judgment are rather “scatter barrelled,” taking no direct aim at each statutory provision. The particular sections requested to be determined unconstitutional were virtually all of the enforcement provisions found in Tex. Health & Safety Code §§ 361.181 through 361.405 (Vernon 1992). The trial court, upon motion for summary judgment and without articulation, struck dead 63 of. the 68 statutory provisions as being void and [185]*185violative of the Texas and United States Constitutions. The sections determined to be unconstitutional were Texas Health and Safety Code § 361.181 through 361.345, inclusive. Appellant, TWC, appeals the trial court’s final judgment setting forth six points of error. We shall only address appellant’s first and sixth, points of error for reasons hereinafter set forth.

Point of error six complains that the trial court’s judgment is advisory. We agree. The trial court’s judgment holds as unconstitutional a number of statutory provisions which are clearly inapplicable to appellees and the very limited factual presentation by appellees makes this clear.

Article V, Section 8 of the Texas Constitution does not empower district courts to render advisory opinion. Firemen’s Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333 (Tex.1968).

In setting aside the trial court’s judgment as hereinafter ruled, we shall afford the trial court the opportunity of explaining its basis for application of each statutory provision to the facts of this case. Point of error six is sustained.

In arriving at our decision to abate this appeal we believe a brief rendition of facts will be helpful.

By deed dated September 11,1974, appel-lees purchased a tract of land in Lufkin, Angelina County, Texas, from Higgins Creosoting Company, Inc. The grantor in that deed previously operated a business on that property which required the use of creosote, a mixture of chemicals used to preserve wood.

On or about April 4, 1975, appellees sold this property to K.K. Green, K.W. Smith, and D.M. Vines and since that conveyance appellees have owned no interest in said property.

The present problem began when appel-lees received written notice that the subject property was being proposed for listing on the “state registry.” This notice was sent to appellees sometime in September 1990. The “state registry” is a list of facilities identified by the TWC that pose an immediate and substantial endangerment to the public health and safety or to the environment due to a release or threatened release of hazardous substances. Tex.Health & Safety Code Ann. § 361.181 (Vernon 1992). On November 26, 1991, the TWC published notice in the Texas Register that it was proposing the property, now known as the Higgins Wood Preserving Site, for listing on the state registry. Tex.Water Comm’n, 16 Tex.Reg. 6875 (1991). The notice letters apparently designated appellees to be “potentially responsible persons” as that term is used in Section 361.271. It is however because of this designation that appellees filed suit claiming that the mere designation constitutes a finding that appellees are guilty and responsible for the cleanup of this facility. Appellees contend that the cleanup of this facility, which is now a shopping center, could cost up to thirteen million dollars even though there is no present estimation of cost.

Procedurally, appellees filed their Plaintiffs’ Original Petition on June 10, 1991. Appellant filed its Defendant’s Original Answer consisting of a general denial and motion to transfer venue on July 25, 1991. On September 20, 1991, appellees filed Plaintiffs’ Motion for Summary Judgment which was subsequently set for hearing on October 10, 1991. On October 7, 1991, appellant (TWC) filed its Plea to the Jurisdiction alleging that venue was exclusive in Travis County, Texas. On October 10, 1991, the trial court heard the plaintiffs’ motion for summary judgment and on October 16,1991, the trial court signed a final judgment declaring Health and Safety Code §§ 361.181 through 361.345 to be void and violative of the Constitution of the United States and the Constitution of the State of Texas. Further, on October 16, 1991, the trial court signed an order denying appellant’s motion for leave of court to shorten time for notice of hearing on defendant’s motion to transfer venue and alternative motion for continuance of hearing on plaintiffs’ motion for summary judgment. On October 18,1991, the trial judge signed an order denying appellant’s plea to the jurisdiction.

[186]*186We have little to work with as far as the Final Judgment of the trial court is concerned. Appellees simply made a request that Sections 361.181 through 361.405 be held void as violative of the United States and Texas Constitutions and without rhyme or reason or any application to these parties the trial court granted same. We set forth the final judgment in its entirety:

FINAL JUDGMENT
On this 10th day of October, 1991, came on to be considered the Motion for Summary Judgment of Plaintiffs, P.E. Lindsey, F.M. Martindale and Jack Mar-tindale. Plaintiffs appeared by and through their attorney. Defendant appeared by and through its attorney. After considering the Motion for Summary Judgment, the Pleadings, the evidence and the argument of counsel, the Court determines that Texas Health and Safety Code Sections 361.181 through 361.345 violate U.S. Constitution Amendment 14, Texas Constitution Article 1, Sections 13, 16 and 19 and Texas Constitution Article 2, Section 1.
IT IS THEREFORE ORDERED that Texas Health and Safety Code Sections 361.181 through 361.345 be, and they are hereby declared void as being violative of the Constitution of the United States and of the Constitution of the State of Texas.
IT IS FURTHER ORDERED that cost in this cause is hereby taxed and assessed against Defendant.
SIGNED this day of October, 1991.
/s/ Judge Joe Bob Golden
JUDGE PRESIDING

Obviously, our trial court confused an action brought pursuant to the Uniform Declaratory Judgment Act, Tex.Civ.PRAC. & Rem.Code §§ 37.001 et seq. (Vernon 1986) and a Motion for Summary Judgment brought under Tex.R.Civ.P. 166a.

As precedent for the abatement of this appeal we rely upon the case of Bellegie v. Texas Board of Nurse Examiners, 685 S.W.2d 431 (Tex.App.—Austin 1985, writ ref’d n.r.e.).

In Bellegie,

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Texas Water Commission v. Lindsey
850 S.W.2d 183 (Court of Appeals of Texas, 1992)

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850 S.W.2d 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-water-commission-v-lindsey-texapp-1992.