09-0494          
EDWIN B. KELSOE v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND MARK R. VICKERY,
EXECUTIVE DIRECTOR AND CONCERNED CITIZENS OF RED RIVER COUNTY; from Travis County; 3rd
district
(TCEQ v. Kelsoe, No.
03-07-00720-CV, ___ SW3d ___, 04-30-09 pet. denied July 2009) (administrative law,
environmental law, solid waste landfill permit, untimely judicial review suit dismissed)
Regardless of the merits of Kelsoe's complaints related to the executive director's
decision to return the application as incomplete, Kelsoe's petition for judicial review,
filed on March 2, 2006, was untimely and did not invoke the trial court's jurisdiction
over any of his complaints. See id. We reverse the trial court's judgment and render
judgment dismissing Kelsoe's suit for lack of jurisdiction.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-07-00720-CV

Texas Commission on Environmental Quality, Mark R. Vickery, Executive Director, Concerned
Citizens for Red River County, and Edwin R. Stephenson, Appellants // Edwin B. Kelsoe,
Cross-Appellant

v.

Edwin B. Kelsoe, Appellee // Texas Commission on Environmental Quality, Mark R. Vickery,
Executive Director, Concerned Citizens for Red River County, and Edwin R. Stephenson,
Cross-Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-06-00757, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING

O P I N I O N

The opinion and judgment issued on March 11, 2009, are withdrawn and this opinion is substituted in their
place.

This case arises out of appellee and cross-appellant Edwin B. Kelsoe's application for a solid-waste landfill
permit. After returning Kelsoe's application twice for deficiencies, appellant and cross-appellee Texas
Commission on Environmental Quality determined that the application was incomplete and on December 9,
2005, returned Kelsoe's latest revised application. Kelsoe filed a motion to overturn the decision to return
the application on January 3, 2006, and that motion was overruled by operation of law on January 23, 2006.
Kelsoe filed his original petition challenging TCEQ's decision on March 2, 2006. TCEQ filed a plea to the
jurisdiction, asserting that Kelsoe's petition was filed too late to invoke the trial court's jurisdiction. The trial
court determined that Kelsoe was entitled to one more notice of deficiency before the application was
returned and that the time to file suit ran from February 2, 2006, which was the date TCEQ informed Kelsoe
that it would not review the return of his permit. The trial court therefore reversed TCEQ's determination that
the application was incomplete and should be returned and remanded the matter to TCEQ to give Kelsoe
one more notice of deficiency.

We reverse the trial court's judgment and render judgment dismissing Kelsoe's suit as untimely filed.

Discussion

An applicant seeking a landfill permit must submit an administratively complete application before it will be
submitted for technical review. See Tex. Water Code Ann. §§ 5.552-.557 (West 2008); Tex. Health & Safety
Code Ann. §§ 361.066, .068 (West 2001). TCEQ's "executive director shall determine when an application is
administratively complete." Tex. Water Code Ann. § 5.552(a); see Tex. Health & Safety Code Ann. §
361.066(a) ("applicant must submit any portion of an application that the commission determines is
necessary to make the application administratively complete"). (1) If the application is not amended to be
administratively complete, "the application is considered withdrawn, unless there are extenuating
circumstances." (2) Tex. Health & Safety Code Ann. § 361.066(b). A person "affected by a ruling, order,
decision, or other act" by TCEQ may appeal to the district court in Travis County, but the petition must be
filed "not later than the 30th day after the date of the ruling, order, decision, or other act." Id. § 361.321(a),
(c) (West 2001); see Tex. Water Code Ann. § 5.351 (West 2008) (person affected by "ruling, order,
decision, or other act" by TCEQ may seek judicial review by filing petition "within 30 days after the effective
date of the ruling, order, or decision" or, if appealing "act other than a ruling, order, or decision," within "30
days after the date [TCEQ] performed the act").

Kelsoe asserts several reasons why the filing of his petition for judicial review is not affected by or subject to
the thirty-day deadline set out in the water and health and safety codes. First, we consider Kelsoe's
argument that his suit was filed under section 5.352 of the water code. Kelsoe argues that TCEQ's decision
to return his application as incomplete was not uncontested or "final and appealable" and, therefore, he was
not bound by the thirty-day deadlines set out in the water or health and safety code provisions governing
judicial review. Kelsoe also argues that because it was the executive director, or, more accurately, his
designee, that returned the application as incomplete, Kelsoe's complaints do not fall within the statutes
governing judicial review of actions by TCEQ. (3) Instead, Kelsoe argues, his suit was filed under section
5.352, which allows a person "affected by the failure of the commission or the executive director to act in a
reasonable time on an application to appropriate water or to perform any other duty with reasonable
promptness" to petition the trial court to compel TCEQ or the executive director to act. Tex. Water Code
Ann. § 5.352 (West 2008). In other words, he contends that because no statute or rule specifically governs
an appeal from a finding of incompleteness, his complaints could only have sought mandamus relief under
section 5.352 or the common law and are not subject to the thirty-day deadline. We disagree.

Section 5.352 allows a party to seek mandamus relief for TCEQ's or the executive director's failure to act.
See id. However, Kelsoe sought to overturn the executive director's determination of administrative
incompleteness, the return of the application, and TCEQ's refusal to overturn the executive director's
decisions. Throughout his pleadings and briefs on appeal, Kelsoe complains about the executive director's
actions, arguing that the director "lacked authority to act on the application" or that he erred in making his
"actual decision." Section 5.352 does not allow for mandamus relief from TCEQ's or the executive director's
unfavorable decisions or actions, but from their failure to act at all. See id. Although Kelsoe argues that
TCEQ's return of his application "is not a 'decision' on an application, it is a refusal to consider it," we
disagree and hold that the determination that an application is administratively incomplete and the
subsequent return of the application are decisions and actions taken on the application. (4) Thus, Kelsoe's
claims do not fall within section 5.352's mandamus provision. (5) Further, because Kelsoe had an adequate
remedy by appeal, a conclusion we discuss below, his complaints were not proper subjects for common-law
mandamus relief. See In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004).

Neither the water code nor the health and safety code specifically addresses an appeal from the executive
director's decision of administrative incompleteness. Kelsoe argues that section 5.351 of the water code and
section 361.321 of the health and safety code only apply after a contested case hearing, but the plain
language of the statutes does not support that conclusion; the statutes speak of seeking review of any
"ruling, order, decision, or other act." He further argues that "if the commission had made the final decision
in this case, Kelsoe would have been afforded the contested case hearing on the issue of administrative or
technical completeness." However, the water code clearly provides that the decision of administrative
completeness is left to the executive director and does not provide for review of that decision by TCEQ.
Thus, the director's decision that the application was incomplete was a final, reviewable decision subject to
the provisions of sections 5.351 and 361.321. (6) Having reviewed the statutory schemes governing landfill
permits and TCEQ permitting in general, we hold that an applicant seeking judicial review of the executive
director's decision or act of returning an application as administratively incomplete must avail himself of the
provisions set out in sections 5.351 of the water code and 361.321 of the health and safety code.

Next, we consider Kelsoe's arguments related to the administrative rules applicable to the TCEQ permitting
process. (7) Kelsoe insists that his suit was timely because it was filed within thirty days of February 2, 2006,
the date on which TCEQ sent notice that it would not grant Kelsoe's motion to overturn the return of his
application. Essentially, he argues that the executive director's decision was not appealable until TCEQ sent
notice of its decision on Kelsoe's motion to overturn and, therefore, that Kelsoe's filing of the motion to
overturn meant his time to appeal did not begin to run until after TCEQ's notice of its decision on his motion.
(8) Kelsoe also asserts that because he contested whether his application was complete, the executive
director lacked the authority to act on the application. See 30 Tex. Admin. Code § 50.133(a) (2008)
(executive director may act on uncontested application). However, the rules Kelsoe cites, largely governing
motions to overturn, apply only to applications that are declared to be administratively complete. See id. §§
50.2(a), .102(a), .131(b), .55.1(a), 200 (2008). Further, nothing in the statutes or rules makes TCEQ's
notice of its decision on a motion to overturn a triggering event for seeking judicial review.

Instead, the rules that apply here are sections 281.3, 281.17, and 281.18, and former section 330.51, which
govern the executive director's determination of whether an application is administratively complete. See id.
§§ 281.3(a), .17(d), .18 (2008), 330.51 (2005). (9) Those rules do not allow for a motion to overturn the
director's decision of administrative incompleteness. Thus, Kelsoe's motion to overturn the director's return
of his application did not extend the time to seek judicial review. The deadline for filing his petition for judicial
review was therefore January 9, 2006, thirty days after the executive director returned Kelsoe's application
as incomplete.

Even if we were to allow Kelsoe to rely on the rules governing motions to overturn, rules that explicitly apply
only to administratively complete applications, see id. §§ 50.2(a), .102(a), .131(b), a motion to overturn must
be filed within twenty-three days of the date TCEQ mails notice of the executive director's action. Id. §
50.139(b) (West 2008). In this case, the director's letter returning the application was mailed on December
9, 2005, making Kelsoe's motion to overturn due on January 2, 2006. See id. (first Monday following
twenty-three days after December 9, 2005). Kelsoe's motion, sent to TCEQ by facsimile on January 3, was
thus untimely. Furthermore, if we overlook that defect, the motion was denied by operation of law on January
23, 2006, forty-five days after Kelsoe's application was returned. See id. § 50.139(f)(1). Thus, the very latest
date by which Kelsoe's petition for judicial review had to be filed was February 22, 2006, thirty days after
Kelsoe's motion was overruled by operation of law. We hold that Kelsoe's petition for judicial review, filed
March 2, 2006, was untimely.

Finally, we consider Kelsoe's argument that, because he alleged violations of his constitutional due-process
rights, he had a right to bring his suit when he did, citing Continental Casualty Insurance Co. v. Functional
Restoration Associates, 19 S.W.3d 393, 397 (Tex. 2000).

The supreme court has said, "It is well recognized under Texas law that there is no right to judicial review of
an administrative order unless a statute provides a right or unless the order adversely affects a vested
property right or otherwise violates a constitutional right." Id. This does not mean, however, that when a
statute does provide a right to judicial review, a person raising a constitutional claim need not comply with
the statute's requirements. See, e.g., Texas Workers' Comp. Comm'n v. Patient Advocates of Tex., 136
S.W.3d 643, 658-59 (Tex. 2004) ("[d]ue process . . . requires notice and an opportunity to be heard at a
meaningful time and in a meaningful manner," but even constitutional claims must be brought within time and
procedures set out in statutes allowing for judicial review); Walter West, P.E. v. Texas Comm'n on Envtl.
Quality, 260 S.W.3d 256, 260-61, 263 (Tex. App.--Austin 2008, pet. denied) (op. on reh'g) ("the APA
provides an independent right to judicial review when the agency's enabling act is silent," but because
"water code expressly provides a right to judicial review of Commission decisions," parties seeking review of
decision under water code must comply with statute governing review, and filing within thirty-day deadline is
"statutory prerequisite" for seeking judicial review); Texas Advocates Supporting Kids With Disabilities v.
Texas Educ. Agency, 112 S.W.3d 234, 236, 238-39 (Tex. App.--Austin 2003, no pet.) (legislature did not set
deadlines for requesting hearing or seeking judicial review and gave agency authority to "create a statewide
program to educate disabled children"; agency did not exceed authority in promulgating rule limiting time to
seek judicial review). As in Walter West, the water and health and safety codes provided Kelsoe with a
procedure for seeking judicial review, imposing a thirty-day deadline for seeking review. See 260 S.W.3d at
263 ("both petitions for judicial review were untimely because they were not filed within the thirty-day
deadline specified in section 5.351 of the water code" and "appellants' failure to comply with this statutory
prerequisite deprived the trial court of jurisdiction to consider appellants' petitions for judicial review").

Conclusion

Regardless of the merits of Kelsoe's complaints related to the executive director's decision to return the
application as incomplete, Kelsoe's petition for judicial review, filed on March 2, 2006, was untimely and did
not invoke the trial court's jurisdiction over any of his complaints. See id. We reverse the trial court's
judgment and render judgment dismissing Kelsoe's suit for lack of jurisdiction.

__________________________________________

David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Reversed and Rendered on Motion for Rehearing

Filed: April 30, 2009

1. See Tex. Water Code Ann. § 5.551(a) (West 2008) (chapter 5, subchapter M of water code applies to
permits issued under chapter 361 of health and safety code).

2. Once an application is determined to be administratively complete, it is then submitted for public notice
and technical review. See, e.g., id. §§ 5.552-.557 (West 2008); Tex. Health & Safety Code Ann. § 361.068
(West 2001).

3. A suit against TCEQ or its executive director "shall be brought in the name of the commission," Tex. Water
Code Ann. § 5.357 (West 2008), thus a suit against the executive director is a suit against TCEQ.

4. The duty or responsibility to submit an application for technical review only arises after an application is
determined to be administratively complete. See id. §§ 5.552-.557; Tex. Health & Safety Code Ann. §
361.068; see also Larry Koch, Inc. v. Texas Natural Res. Conservation Comm'n, 52 S.W.3d 833, 837-38
(Tex. App.--Austin 2001, pet. denied).

5. Kelsoe's complaints may be read as complaining that TCEQ's decision to allow his motion to overturn to
be overruled by operation of law amounted to a failure to act challengeable by mandamus under section
5.352. However, even if we apply the administrative rules in question, which govern motions to overturn or
reconsider filed in relation to administratively complete applications, because TCEQ's rules specifically allow
for a motion to be overruled by operation of law, see 30 Tex. Admin. Code § 50.139(f)(1) (2008), TCEQ
cannot be forced by mandamus to affirmatively act on a motion rather than allowing it to be overruled by
passage of time.


Kelsoe also argues that because the administrative code delegates to the executive director the power to
act on permits but does not specify whether findings of administrative incompleteness are final and
appealable, Kelsoe was entitled to appeal to TCEQ through a motion to overturn and then seek judicial
review or mandamus relief in the trial court. See Tex. Water Code Ann. § 5.122 (West 2008) (person
affected by director's decision "on a matter delegated under this section" may appeal to TCEQ unless action
is made "final and appealable by the commission rule that delegates the decision" to the director). However,
the director's authority to determine administrative completeness was not delegated by TCEQ through rule
or order but rather was statutorily granted by the legislature. Id. § 5.552(a). Thus, section 5.122(b) does not
apply.

6. We do not mean to suggest that any decision by the executive director for which the rules do not explicitly
provide review may be appealed to the trial court. We can imagine that many, if not most, interim decisions
in the permitting process will not "affect" an applicant sufficiently to warrant judicial review. See Tex. Health &
Safety Code Ann. § 361.321(a) (West 2001); Tex. Water Code Ann. § 5.351(a) (West 2008). However, in
this case, when Kelsoe's original application was submitted, the construction of solid-waste facilities was
allowed in the area in which he sought to construct a facility. After his application was submitted, the county
passed a new ordinance that barred the establishment of new landfills. After Kelsoe's application was
rejected, he was no longer grandfathered under the old ordinances and thus could no longer apply to
establish a new landfill in the area. Under these facts, the return of Kelsoe's application as administratively
incomplete was essentially a final decision that "affected" Kelsoe in a very direct and substantial way that
warranted judicial review.

7. Unless there has been a substantive change in the administrative rules that applied when Kelsoe filed his
application, we will refer to the current rules for convenience.

8. The rules governing the effectiveness of and appeal from an executive director's decision indicate that (1)
the decision is final and goes into effect immediately, see 30 Tex. Admin. Code § 50.139(d); (2) the deadline
for filing a motion to overturn runs from the date of notice of the director's action, see id. § 50.139(b); and
(3) a motion to overturn is overruled by operation of law if TCEQ does not act on it within forty-five days from
the date TCEQ sent notice of the director's action, see id.§ 50.139(f)(1).

9. Once received by the executive director, a solid-waste permit application is reviewed for administrative
completeness. Id. § 281.3(a) (2008) (initial review). If the application contains the required information, the
executive director or his designee prepares a declaration of administrative completeness. Id. § 281.17(d)
(2008). If the application is not administratively complete, the director notifies the applicant of the
deficiencies and allows the applicant to submit additional information. Id. § 281.18 (2008). If the application
is not submitted in an administratively complete form by the deadline set by the director, "the application
shall be considered withdrawn." Id. § 281.18(b). Former section 330.51 set out the information that was
required before an application was considered to be administratively complete. Id. § 330.51 (2005) (now at
id. § 330.57 (2008)).