TSPS MAR 2025 FINAL REV - Flipbook - Page 24
ATTORNEY’S ANGLE
TEXAS REAL ESTATE
LAW RECENT CASES
The following is a summary of the recent Texas real estate law cases as
prepared by the Real Estate Section of the State Bar of Texas.
The Papes purchased a tract of land. The purchase included irrigation water rights recognized by the State of Texas in two
Certi昀椀cates of Adjudication. The Papes attempted to record their
purchase of water rights with TCEQ. TCEQ noti昀椀ed DRR and
other potentially interested landowners of their possible interest
in the water rights. DRR 昀椀led a change of ownership form, and
the TCEQ eventually concluded that DRR owned a portion of
the water rights. The TCEQ changed its records to re昀氀ect DRR’s
ownership.
The Papes moved to reverse the TCEQ’s decision, and the motion was overruled by operation of law. The Papes did not pursue
an administrative appeal and brought the present suit seeking a
declaration that it owns all of the water rights in the tract. The
Papes further asserted claims against DRR for breach of contract, fraud, adverse possession, and to quiet title. DRR moved
to dismiss the Papes’ claims against it for lack of subject matter
jurisdiction, asserting that the Papes had failed to exhaust their
administrative remedies. The trial court granted DRR’s motion.
A divided Court of Appeals af昀椀rmed. The majority concluded,
with no supporting analysis, that “the regulatory scheme behind
surface water permits is pervasive and indicative of the Legislature’s intent that jurisdiction over the adjudication of surface water permits is ceded to the TCEQ.” It thus agreed with DRR that
Pape’s only remedy was a suit for judicial review under Chapter
5 of the Water Code, which by then was time-barred.
. . .
[The Texas Supreme Court began] with the basic, constitutional rule that “a district court has
subject-matter jurisdiction to resolve disputes unless the Legislature divests it of that jurisdiction.”
“District Court jurisdiction consists of exclusive,
appellate, and original jurisdiction of all actions,
proceedings, and remedies, except in cases where
exclusive, appellate, or original jurisdiction may be
conferred by this Constitution or other law on some
other court, tribunal, or administrative body.”
Thus, . . . “the district court has subject-matter jurisdiction” to resolve a claim. And historically, “the
power to determine controverted rights to property”
has been “vested in the judicial branch.”
22 THE TEXAS SURVEYOR March 2025
By contrast, “there is no presumption that administrative agencies are authorized to resolve disputes. Rather, they may exercise
only those powers the Legislature, in clear and express statutory
language, has conferred upon them.” “Courts will not imply additional authority to agencies, nor may agencies create for themselves any excess powers.” Because of the presumption in favor
of jurisdiction and the narrowness of administrative-agency jurisdiction, “the burden to demonstrate that exclusive jurisdiction
rests with an administrative agency falls on the party resisting the
district court’s jurisdiction.”
“Whether an agency has exclusive jurisdiction depends on
statutory interpretation.” Speci昀椀cally, we courts look for either
an express grant of exclusive original jurisdiction to the agency
or a “pervasive regulatory scheme” indicating that the Legislature intended “the administrative process to be the exclusive
means of remedying the problem” presented. The relevant statutes here are in Chapters 5 and 11 of the Water Code.
Id. at *3 (internal citations omitted).
[The court reviewed both chapters and concluded that n]othing in that act gives TCEQ authority to decide con昀氀icting claims
to water rights acquired with the title to land. Indeed, the administrative process that Pape initiated after purchasing Robinson’s farm is provided for not by statute but by two of the commission’s administrative rules. All the rules say is that “an owner
of a water right shall promptly inform the executive director of any
transfer of water right or change of the owner’s address” and then
昀椀le a form, chain-of-title documents, and a fee with the director.
Id. at *6 (internal citations omitted).
The court noted TCEQs agreement. In TCEQ’s
amicus brief, it referred to these provisions as an
administrative record-keeping function.
The court held that TCEQ lacks jurisdiction to
decide con昀氀icting claims of ownership to surface-water rights.
MARK J. HANNA
practices law in Austin,
Texas and serves as TSPS
Legal and Legislative
Counsel. In addition
to providing legal and
legislative representation
for the Society, Mr. Hanna
specializes in representing
the interests of business and
professional clients located
throughout the State.
For more information regarding these cases or other legal issues of signi昀椀cance to the surveying profession, contact TSPS Legal Counsel, Mark J. Hanna,
2414 Exposition Boulevard, Suite A-1, Austin, Texas
78703; telephone: (512) 477-6200; fax: (512) 4771188
