Appeals Court Rules Texas County Not Immune from Water Fees

The Texas State Fourteenth Court of Appeals ruled on Thursday that Harrison County, Texas, needs to pay the $5,626 penalty for violations of the Texas Water Code and Texas Administrative Code because it did not perform the required annual leak and piping tests on underground storage tanks that the county owns and operates. This decision that the Texas legislature waived governmental immunity from the penalty reversed the ruling of the 353rd district court in Travis County, Texas. 

The Opinion, which was delivered by Chief Justice Frost, said, “[w]e presume that, absent a waiver, governmental immunity applies in this context. Concluding that the Texas Legislature  has waived the county’s presumed governmental immunity as to enforcement actions seeking  imposition of an administrative penalty under Water Code section 7.051, we reverse and remand.” 

The County of Harrison, Texas, was represented by Joshua Humphreys and James P. Allison. 

The Texas Commission on Environmental Quality and its Executive Director Richard A. Hyde P.E. were represented by Rance Lamar Craft and Kristofer S. Monsoon, respectively. The commission sought an appeal after the court determined that the county had governmental immunity under Texas Water Code section 7.051. They argued that the immunity did not apply in this context and was waived in regards to enforcement actions and penalties. 

The county filed the initial district court complaint after the commission ruled that it should pay the fine, against the commission and its director. The district court agreed with the county, claiming that “the Water Code did not clearly and unambiguously waive immunity,” so the county was not liable to pay the penalty. However, the commission appealed the decision. 

The appeals court evaluated the Texas statutes and determined that the definition of “person,” which included governmental agencies, as applied in the applicable Water Code section showed “clear legislative intent to waive governmental immunity against assessment of an administrative penalty.” 

The order remanded the case to the district court to further rule on Harrison County’s complaints against the commission.