Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009),
No. 06-0911 (Tex. Jun. 26, 2009)(Hecht)(effective date of decision on appeal) (administrative law, water law,
attorney's fees under the UDJA aka DJA)
EDWARDS AQUIFER AUTHORITY, ET AL. v. CHEMICAL LIME, LTD.; from Comal County; 3rd district
(03-04-00379-CV, 212 SW3d 683, 09-14-06)(op. on 2nd motion for rehearing in the court below)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, [22 page pdf opinion], in which Chief Justice Jefferson,
Justice O’Neill, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, Justice Johnson and Justice
Willett joined. [pdf] Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
View Electronic Briefs in Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009)
EXCERPTS FROM THE MAJORITY OPINION BY JUSTICE HECHT
Whether, as a general matter, an appellate court’s decision takes effect the moment the court
issues its opinion, order, or judgment, or later when rehearing is denied or the time for rehearing
expires, or still later when the clerk issues the mandate, is a difficult question under Texas law and
procedure, as reflected by the competing arguments in JUSTICE BRISTER’s and JUSTICE WILLETT’s
separate opinions, and one we need not answer today. We all agree that if an appellate court
expressly states the time for its decision to take effect, that statement controls. That rule applies
In Barshop v. Medina County Underground Water Conservation District, we prescribed a
filing deadline “six months after the [Edwards Aquifer] Authority becomes effective”.1 As it
happened, the Authority began operations the day we issued our opinion and thus became effective.
The deadline was set at six months from that date. We hold that the Authority correctly applied
Barshop, and therefore we reverse the judgment of the court of appeals.2 We remand the case to the
trial court for further proceedings.
The parties have devoted much attention to the problems in determining when, as a general
matter, an appellate court decision takes effect. The concurring opinions shed helpful light on these
problems and strongly suggest that this is an aspect of Texas appellate procedure that could well
benefit from more definite rules and procedures. We conclude, however, that this case turns not on
when our decision in Barshop became effective, but when the Authority became effective. On that
issue, the facts leave no doubt that the Authority permissibly set the permit application filing
deadline at December 30, 1996.
* * *
The only penalty the EAAA suggests is that late applications will not be considered.
We recognize the hardship of this penalty to Chemical Lime, but we believe the EAAA
requires a firm deadline. Chemical Lime’s late filing did not substantially comply with the statute’s
* * *
While section 36.251
does provide for suit against the Authority,67 section 36.254 states that that remedy “do[es] not affect
other legal or equitable remedies that may be available.” The Authority has not advanced an
argument why we should not take section 36.254 at its word. Nor does the Authority argue that the
DJA permits an award of attorney fees only to a prevailing party, an issue on which we express no
opinion.68 The Authority does not challenge the reasonableness or necessity of the fees awarded by
the trial court.69 But an award must be equitable and just,70 considerations addressed to the trial
court’s discretion.71 Now that Chemical Lime is no longer the prevailing party, the trial court should
have the opportunity to reconsider its award.
* * *
Because the Authority has prevailed, it is entitled to attorney fees under section 36.066(g)
of the Water Code. The parties stipulated below to the amount of those fees.
Accordingly, the court of appeals’ judgment is reversed and the case is remanded to the trial
court for further proceedings consistent with this opinion.