Reversed and Remanded and Opinion filed July 30, 2020.
`
`
`
`
`
`
`
`
`In The
`
`Fourteenth Court of Appeals
`
`
`NO. 14-18-00628-CV
`
`
`RICHARD A. HYDE, P.E., IN HIS OFFICIAL CAPACITY AS EXECUTIVE
`DIRECTOR OF THE TEXAS COMMISSION ON ENVIRONMENTAL
`QUALITY AND THE TEXAS COMMISSION ON ENVIRONMENTAL
`QUALITY, Appellants
`
`V.
`
`HARRISON COUNTY, TEXAS, Appellee
`
`
`On Appeal from the 353rd District Court
`Travis County, Texas
`Trial Court Cause No. D-1-GN-17-002026
`
`
`O P I N I O N1
`
`
`The Texas Commission on Environmental Quality and its executive director
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`appeal the district court’s vacatur and dismissal of the commission’s final decision
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`in a contested enforcement action against a Texas county based on the district
`
`1 Justice Hassan joins this opinion except for subsection 6 of section II.A. Justice Wise joins the
`opinion in its entirety.
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`

`

`court’s determination that the county enjoyed governmental immunity as to the
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`enforcement action and the imposition of an administrative penalty under Texas
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`Water Code section 7.051. The commission and its executive director assert that
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`governmental immunity does not apply in this context or that the Texas Legislature
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`has waived the county’s governmental immunity as to enforcement actions seeking
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`imposition of an administrative penalty under this provision. We presume that,
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`absent a waiver, governmental immunity applies in this context. Concluding that
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`the Texas Legislature has waived the county’s presumed governmental immunity
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`as to enforcement actions seeking imposition of an administrative penalty under
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`Water Code section 7.051, we reverse and remand.
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`I. FACTUAL AND PROCEDURAL BACKGROUND
`
`Appellee/petitioner Harrison County (the “County”) owns and operates
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`underground storage tanks at its road and bridge department and at the Harrison
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`County Airport
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`(the “Tanks”). An
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`investigator working on behalf of
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`appellant/defendant Texas Commission on Environmental Quality
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`(the
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`“Commission”) documented that the County had not provided release detection for
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`the pressurized piping associated with the Tanks, in violation of Texas Water Code
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`section 26.3475(a) and title 30, section 334.50(b)(2) of the Texas Administrative
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`Code. Specifically, the County allegedly had not conducted the required annual
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`line-leak-detector and piping-tightness tests.
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`Based on these findings, appellant/defendant Richard A. Hyde, P.E., in his
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`official capacity as Executive Director of the Texas Commission on Environmental
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`Quality initiated an administrative enforcement action against the County before
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`the Commission (the “Enforcement Action”). Hyde alleged that the County had
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`violated Water Code section 26.3475(a) and title 30, section 334.50(b)(2) of the
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`Administrative Code. Based on these asserted violations, Hyde sought an
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`2
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`administrative penalty of $5,626 against the County under Water Code section
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`7.051.2
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`The County answered, contested the Enforcement Action, and requested a
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`hearing. The Commission referred the Enforcement Action to the State Office of
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`Administrative Hearings for an evidentiary hearing. The County filed a plea to the
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`jurisdiction, asserting that the Commission lacked subject-matter jurisdiction over
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`the County in the Enforcement Action because the County had immunity from suit
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`under the doctrine of governmental immunity3 and because the Legislature had not
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`waived that immunity. The administrative law judge signed an order denying the
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`plea to the jurisdiction and stating the following conclusions:
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`(1) Under Water Code section 7.051, the Commission may assess an
`administrative penalty against a person who violated a provision of
`the Water Code or a rule adopted or order issued by the Commission;
`
`(2) Under Government Code section 311.005, the word “person” as
`used in Water Code section 7.057 includes governmental subdivisions
`and agencies;
`
`(3) Under Government Code section 311.034, a statute may not be
`construed as a waiver of governmental immunity unless the waiver is
`effected by clear and unambiguous language;
`
`
`
`
`2 Hyde initially requested an administrative penalty of $8,250, but he later reduced the request to
`$5,626.
`
`3 Courts often use
`immunity”
`immunity” and “governmental
`terms “sovereign
`the
`interchangeably even though they are two distinct concepts. Wichita Falls State Hosp. v. Taylor,
`106 S.W.3d 692, 694 n. 3 (Tex. 2003). “Sovereign immunity” refers to a State’s immunity from
`suit and liability. Id. Its protection extends not only to the State, but also to the varying divisions
`of state government, including agencies, boards, hospitals, and universities. “Governmental
`immunity” protects political subdivisions of the State, including counties, cities, and school
`districts. Id. Though the terms differ, the law gives these two immunities the same treatment as
`to the issues raised in today’s case. See id. Thus, we cite cases involving sovereign immunity
`and cases involving governmental immunity without noting the different type of immunity
`involved.
`
`
`
`
`3
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`

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`(4) Under Government Code section 311.034, the applicability of the
`definition of “person” from Government Code section 311.005 to a
`statute does not indicate legislative intent to waive governmental
`immunity unless the context of the statute indicates no other
`reasonable construction;
`
`(5) Based on the context of Water Code section 7.051, including
`Water Code section 7.067(a), (a-1), the only reasonable statutory
`construction is that the Legislature intended to waive the County’s
`governmental immunity for the imposition by the Commission of an
`administrative penalty under Water Code section 7.057; and
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`(6) the failure to adopt this statutory construction would make Water
`Code section 7.067(a-1) meaningless.
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`After the administrative law judge conduced an evidentiary hearing and
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`presented a proposal for decision, the Commission issued its decision in the
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`Enforcement Action in an order assessing $5,626 in administrative penalties
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`against the County under Water Code section 7.051. The Commission based this
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`decision on its determination that the County violated Water Code section
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`26.3475(a) and title 30, section 334.50(b)(2) of the Administrative Code. The
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`Commission’s order contained findings of fact, including the following:
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`• An investigator concluded that the County had failed to provide release
`detection for the pressurized piping associated with the Tanks, in violation
`of title 30, section 334.50(b)(2) of the Administrative Code.
`
`• The County had not conducted line-leak-detector and piping-tightness tests
`for one year prior to June 18, 2015.
`
`• If piping at an underground-storage-tank system fails and is not tested
`annually, gasoline or diesel fuel can leak undetected into groundwater and
`surface water where humans and the environment may be exposed to it.
`
`• Undetected
`leaks from an underground-storage-tank system can be
`catastrophic because gasoline and diesel fuel are toxic and flammable.
`
`• After the June 18, 2015 inspections, the County had line-leak-detector and
`piping-tightness tests conducted by a contractor, and the County’s piping
`passed both tests.
`
`
`
`4
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`• The County’s compliance history shows that it is generally a high performer;
`however, the County had a previous alleged violation at one facility that was
`resolved with an agreed order.
`
`
`
`The Commission’s order contained conclusions of law, including the
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`following:
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`• Under Water Code section 7.051(a)(1)(A),(B), the Commission may assess
`an administrative penalty against a person who violates a provision of the
`Water Code within the Commission’s jurisdiction or any rule adopted
`thereunder.
`
`• Under Government Code section 311.005, as used in Water Code section
`7.051, the term “person” covers governmental subdivisions, including
`counties.
`
`• The context of Water Code section 7.051(a)(1)(A) and (B) indicates that the
`legislature
`intended
`to waive governmental
`immunity so
`that
`the
`Commission could assess administrative penalties against counties for their
`violations of the sections of the Water Code that the Commission
`administers and rules adopted under them, and no other construction of these
`statutes is reasonable.
`
`• The County violated Water Code section 26.3475(a) and title 30, section
`334.50(b)(2) of the Administrative Code.
`
`• Based on consideration of the findings of fact and conclusions of law, the
`factors set out in Water Code section 7.053 and the Commission’s penalty
`policy, a total administrative penalty of $5,626 is justified and should be
`assessed against the County for the violations in this case.
`
`
`
`The County timely moved for rehearing, and the motion was overruled by
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`operation of law. Under Government Code section 2001.171, the County filed a
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`petition for review of the Commission’s decision in the district court below,
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`naming Hyde and the Commission (collectively the “Commission Parties”) as
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`defendants. In its petition the County asserted that governmental immunity applied
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`to the Enforcement Action and that the Legislature had not waived the County’s
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`governmental immunity in this context. Therefore, the County alleged that it
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`5
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`enjoyed immunity from suit in the Enforcement Action and that the Commission
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`exceeded its jurisdiction in imposing the administrative penalty upon the County.
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`In its petition, the County also asserted arguments on the merits, challenging the
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`sufficiency of the evidence and the fact findings to support the Commission’s
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`decision.
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`
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`The district court determined that the County enjoyed governmental
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`immunity in this case that the Water Code did not clearly and unambiguously
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`waive immunity. So, the district court ruled that the County is not subject to the
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`administrative penalty that the Commission assessed against the County. The
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`district court vacated and dismissed the Commission’s decision. The Commission
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`Parties timely appealed to the Third Court of Appeals. The Supreme Court of
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`Texas later transferred this case from the Third Court of Appeals to this court.4
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`II. ISSUES AND ANALYSIS
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`Under their first appellate issue, the Commission Parties assert that
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`governmental immunity does not apply in the context of this case for the following
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`reasons:
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`• Governmental immunity applies only in judicial proceedings and therefore
`does not apply in administrative proceedings.
`
`• Administrative penalties are not monetary damages
`governmental immunity.
`
`that
`
`implicate
`
`• Governmental
`immunity protects sovereign functions, not regulated
`activities. By owning and operating an underground storage tank the County
`took part in a regulated activity rather than exercising a sovereign power;
`therefore, governmental immunity does not apply.
`
`
`4 In transfer cases, the transferee court must decide the appeal in accordance with the precedent
`of the transferor court under principles of stare decisis if the transferee court’s decision otherwise
`would have been inconsistent with the precedent of the transferor court. Tex. R. App. P. 41.3.
`
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`6
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`• The primary purpose for governmental immunity is to prevent judicial
`control over the decision-making process of the other two branches of
`government and that policy is not implicated in this case.
`
`• By choosing to own underground storage tanks, the County subjected itself
`to State regulation.
`
`
`
`If governmental immunity does not apply in this context, then there would
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`be no need to address whether the Legislature has waived the County’s
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`governmental immunity in this context. See City of Galveston v. State of Texas,
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`217 S.W.3d 466, 471 (Tex. 2007). We presume, without deciding, that all of the
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`Commission Parties’ arguments as to why governmental immunity does not apply
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`in this case lack merit, and we proceed to address the Commission Parties’ second
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`issue.
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`A. Has the Legislature waived the County’s governmental immunity in the
`context of an administrative proceeding in which the Executive Director
`seeks an administrative penalty under Water Code section 7.051?
`
`
`
`Under their second issue, the Commission Parties argue that the Water Code
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`waives the County’s governmental immunity in the context of an administrative
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`enforcement action brought to impose an administrative penalty under Water Code
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`section 7.051.
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`1. Governmental Immunity
`
`
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`Because the County is a political subdivision of the State of Texas, the
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`County generally enjoys governmental immunity. See Harris County v. Annab,
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`547 S.W.3d 609, 612 (Tex. 2018). Governmental immunity has two components:
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`immunity from liability and immunity from suit. See Tooke v. City of Mexia, 197
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`S.W.3d 325, 332 (Tex. 2006). When a political subdivision of the State enjoys
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`immunity from suit under the doctrine of governmental immunity, a court lacks
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`subject-matter
`
`jurisdiction, and we presume, without deciding,
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`that
`
`the
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`7
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`Commission would lack jurisdiction over the Enforcement Action if the County
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`has immunity from suit based on governmental immunity. See Tex. Dep’t of
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`Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
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`2. Waivers of Governmental Immunity
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`
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`This case does not involve an ultra vires claim, a claim in which a plaintiff
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`may sue state officers in their official capacity, thus suing the governmental entity
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`for all practical purposes, without a statutory waiver of immunity. See City of El
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`Paso v. Heinrich, 284 S.W.3d 366, 371–73 (Tex. 2009). The Commission Parties
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`do not assert that the non-statutory waiver of immunity from the Reata case
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`applies, and the record does not show any waiver of governmental immunity under
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`the Reata case. See Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371,
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`373 (Tex. 2006); Alobaidi v. Univ. of Tex. Health Science Center at Houston, 243
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`S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Instead,
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`the Commission Parties assert that the Legislature clearly and unambiguously
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`waived the County’s governmental immunity from an enforcement action seeking
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`an administrative penalty under Water Code section 7.051 based on Water Code
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`sections 7.051 and 7.067 and Government Code sections 311.005 and 311.034.
`
`See Tex. Gov’t Code Ann. §§ 311.005, 311.034 (West, Westlaw through 2019
`
`R.S.); Tex. Water Code Ann. §§ 7.051, 7.067 (West, Westlaw through 2019 R.S.).
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`For there to be a waiver of governmental immunity in this context, there must be a
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`clear and unambiguous waiver of the County’s governmental immunity from
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`assessment of an administrative penalty under section 7.051. See Tex. Gov’t Code
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`Ann. § 311.034; Tooke, 197 S.W.3d at 332–33 (requiring clear and unambiguous
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`language to waive governmental immunity).
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`Courts have little difficulty recognizing the Legislature’s intent to waive
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`governmental immunity if a statute contains language expressly waiving
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`8
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`governmental immunity. See Wichita Falls State Hospital v. Taylor, 106 S.W.3d
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`692, 697 (Tex. 2003). No statute in today’s case contains express-waiver language.
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`Absent such language, Texas courts rarely conclude that the Legislature has
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`waived governmental immunity. See id. Still, the law recognizes the possibility
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`and courts have found a waiver of immunity even when statutes lack express-
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`waiver language. See Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3–8 (Tex.
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`2000); Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 444–46 (Tex. 1994). The
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`parties have not cited and research has not revealed any case in which a court
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`determined whether a waiver exists of a governmental entity’s sovereign immunity
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`or governmental immunity as to an enforcement action seeking the imposition of
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`an administrative penalty under Water Code section 7.051. Today’s case appears to
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`present an issue of first impression.
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`We review the district court’s interpretation of applicable statutes de novo.
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`See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex. 1989). Our
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`objective in construing a statute is to determine and give effect to the Legislature’s
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`intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000).
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`If possible, we must ascertain that intent from the language the Legislature used in
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`the statute and not look to extraneous matters for an intent the statute does not
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`state. Id. If we deem the meaning of the statutory language unambiguous, we
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`adopt the interpretation supported by the plain meaning of the provision’s words.
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`St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). We must
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`not engage in forced or strained construction; instead, we must yield to the plain
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`sense of the words the Legislature chose. See id.
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`3. Water Code Sections 7.051 and 26.3475
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`In Water Code section 7.051, entitled “Administrative Penalty,” the Texas
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`9
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`Legislature provides:
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`(a) The commission may assess an administrative penalty against a
`person as provided by this subchapter if:
`
` (1) the person violates:
`
` (A) a provision of this code or of the Health and Safety Code that
`is within the commission’s jurisdiction;
`
` (B) a rule adopted or order issued by the commission under a
`statute within the commission’s jurisdiction; or
`
` (C) a permit issued by the commission under a statute within the
`commission’s jurisdiction; and
`
` (2) a county, political subdivision, or municipality has not instituted
`a lawsuit and is not diligently prosecuting that lawsuit under
`Subchapter H against the same person for the same violation.
`
`(b) This subchapter does not apply to violations of Chapter 11, 12, 13,
`16, or 36 of this code, or Chapter 341, Health and Safety Code.
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`Tex. Water Code Ann. § 7.051.
`
`
`
`Water Code section 26.3475(a) falls within the Commission’s jurisdiction
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`and requires “[a]ll piping in an underground storage tank system that routinely
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`conveys regulated substances under pressure must comply with commission
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`requirements for pressurized piping release detection equipment.” Tex. Water
`
`Code Ann. § 26.3475 (West, Westlaw through 2019 R.S.). The Commission
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`requires that owners and operators of underground-storage-tank systems ensure
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`that “release detection equipment or procedures are provided in accordance with
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`[the requirements contain in title 30, section 334.50(b)(2) of the Texas
`
`Administrative Code].” 30 Tex. Admin. Code § 334.50(b). The Commission may
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`assess an administrative penalty under section 7.051 against a “person” who
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`violates Water Code section 26.3475. See Tex. Water Code Ann. §§ 7.051,
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`26.3475 (West, Westlaw through 2019 R.S.); Crystal Int’l v. Texas Comm. Envt’l
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`Quality, No. 03-16-00008-CV, 2016 WL 4272117, at *1 (Tex. App.—Austin Aug.
`
`
`
`10
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`10, 2016, no pet.) (mem. op.).
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`4. Government Code Sections 311.005 and 311.034
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`The Water Code does not define “person” as used in Water Code section
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`7.051. See Tex. Water Code Ann. § 7.051, et seq. Because neither the statute nor
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`the context in which this word is used requires a different definition, the following
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`definition of “person” applies to Water Code section 7.051: “‘Person’ includes [a]
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`corporation, organization, government or governmental subdivision or agency,
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`business trust, estate, trust, partnership, association, and any other legal entity.”
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`Tex. Gov’t Code Ann. § 311.005 (italics added); see id. § 311.002 (West, Westlaw
`
`through 2019 R.S.). Even so, the applicability of this statutory definition of
`
`“person” to Water Code section 7.051 “does not indicate legislative intent to waive
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`[governmental] immunity unless the context of the statute indicates no other
`
`reasonable construction.” Tex. Gov’t Code Ann. § 311.034.
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`Consistent with Government Code section 311.034, the Supreme Court of
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`Texas has concluded that merely including governmental entities in the statutory
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`definition of “person,” whether that definition applies under Government Code
`
`section 311.005 or in the applicable statutory scheme under which the Legislature
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`allegedly has waived governmental or sovereign immunity, does not suffice to
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`establish a clear and unambiguous waiver of immunity or that the context of the
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`statute indicates no reasonable construction other than a waiver of immunity. See
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`Chambers-Liberty Counties Navigation Dist. v. State, 575 S.W.3d 339, 345–46
`
`(Tex. 2019); Wichita Falls State Hospital, 106 S.W.3d at 697–700. Applying a
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`liability statute to “any person,” with person defined as in Government Code
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`section 311.005, does not by itself establish a waiver of immunity because the
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`supreme court has concluded that a reasonable construction of the liability statute
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`in this context is that “person” applies only to private persons and not to
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`11
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`governmental entities. See Chambers-Liberty Counties Navigation Dist., 575
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`S.W.3d at 345–46; Rolling Plains Groundwater Conserv. Dist. v. City of
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`Aspermont, 353 S.W.3d 756, 759 (Tex. 2011). If a reasonable interpretation exists
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`that gives effect to all of a statute’s words, it would not be reasonable to interpret
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`the statute in a way that makes part of the statute meaningless. See City of Dallas
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`v. TCI West End, Inc., 463 S.W.3d 53, 55–56 (Tex. 2015). The supreme court has
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`noted that a statutory definition of “person” plus some general liability language in
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`the statute does not suffice to waive immunity if construing the statute not to waive
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`immunity would not render any part of the statutory scheme meaningless. See
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`Chambers-Liberty Counties Navigation Dist., 575 S.W.3d at 345–46; Wichita Falls
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`State Hospital, 106 S.W.3d at 697–700. But, the high court has contrasted this
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`situation with a statutory context in which a statute defines “person” to include
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`governmental entities, a statute imposes liability on a “person,” and construing the
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`statute not to waive immunity would make part of the statutory scheme
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`meaningless. See Chambers-Liberty Counties Navigation Dist., 575 S.W.3d at
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`345–46; Wichita Falls State Hospital, 106 S.W.3d at 697–700. In this scenario,
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`the supreme court has indicated a clear and unambiguous waiver of immunity
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`would exist.5 See Chambers-Liberty Counties Navigation Dist., 575 S.W.3d at
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`345–46; Wichita Falls State Hospital, 106 S.W.3d at 697–700; Fernandez, 28
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`S.W.3d at 3–8.
`
`5. The Text of Water Code Section 7.067
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`Water Code section 7.067, entitled “Supplemental Environmental Projects,”
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`provides as follows:
`
`
`5 The Commission Parties cite City of Galveston v. State. See 518 S.W.2d 413, 416–19 (Tex.
`Civ. App.—Houston [14th Dist.] 1975, no writ). That case is not on point because no party in
`the case raised, and the court did not address, any issue regarding sovereign immunity or
`governmental immunity. See id.
`
`
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`12
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`(a) The commission may compromise, modify, or remit, with or
`without conditions, an administrative penalty imposed under this
`subchapter. In determining the appropriate amount of a penalty for
`settlement of an administrative enforcement matter, the commission
`may consider a respondent’s willingness to contribute to supplemental
`environmental projects that are approved by the commission, giving
`preference to projects that benefit the community in which the alleged
`violation occurred. The commission may encourage the cleanup of
`contaminated property through the use of supplemental environmental
`projects. The commission may approve a supplemental environmental
`project with activities in territory of the United Mexican States if the
`project substantially benefits territory in this state in a manner
`described by Subsection (b). Except as provided by Subsection (a-1),
`the commission may not approve a project that is necessary to bring a
`respondent into compliance with environmental laws, that is necessary
`to remediate environmental harm caused by the respondent’s alleged
`violation, or that the respondent has already agreed to perform under a
`preexisting agreement with a governmental agency.
`
`(a-1) For a respondent that is a local government, the commission:
`
` (1) may approve a supplemental environmental project that is
`necessary to bring the respondent into compliance with environmental
`laws or that is necessary to remediate environmental harm caused by
`the local government’s alleged violation; and
`
` (2) shall approve a supplemental environmental project described
`by Subdivision (1) if the local government:
`
` (A) has not previously committed a violation at the same site
`with the same underlying cause in the preceding five years, as
`documented in a commission order; and
`
` (B) did not agree, before the date that the commission initiated
`the enforcement action, to perform the project.
`
`(a-2) The commission shall develop a policy to prevent regulated
`entities from systematically avoiding compliance through the use of
`supplemental environmental projects under Subsection (a-1)(1),
`including a requirement for an assessment of:
`
`13
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`

`
` (1) the respondent’s financial ability to pay administrative
`penalties;
`
` (2) the ability of the respondent to remediate the harm or come into
`compliance; and
`
` (3) the need for corrective action.
`
`(b) In this section:
`
`
`(1) “Local government” means a school district, county,
`municipality, junior college district, river authority, water district or
`other special district, or other political subdivision created under the
`constitution or a statute of this state.
`
`(2) “Supplemental environmental project” means a project that
`prevents pollution, reduces the amount of pollutants reaching the
`environment, enhances
`the quality of
`the environment, or
`contributes to public awareness of environmental matters.
`
`
`(c) The commission may allow a local government or an organization
`exempt from federal income taxation under Section 501(a), Internal
`Revenue Code of 1986, as an organization described by Section
`501(c)(3) of that code, that receives money from a respondent to
`implement a supplemental environmental project under this section to
`use a portion of the money, not to exceed 10 percent of the direct cost
`of the project, for administrative costs, including overhead costs,
`personnel salary and fringe benefits, and travel and per diem
`expenses, associated with implementing the project. Money used for
`administrative costs under this subsection must be used in accordance
`with Chapter 783, Government Code.
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`Tex. Water Code Ann. § 7.067 (emphasis added).
`
`6. The Plain Meaning of Water Code Section 7.067’s Text
`
`Under the unambiguous language of Water Code sections 7.051 and 7.067,
`
`after the imposition of an administrative penalty under section 7.051, the
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`14
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`Commission may agree to a settlement with the respondent in the enforcement
`
`action under which the amount of the administrative penalty imposed under section
`
`7.051 is lowered based on the Commission’s consideration of the respondent’s
`
`willingness to contribute to supplemental projects approved by the Commission.
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`See id. § 7.067(a). Respondents who are not governmental entities may not use a
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`supplemental project in a settlement to lower the amount of an administrative
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`penalty under section 7.051 if the project is necessary to bring the respondent into
`
`compliance with environmental laws or necessary to remediate environmental
`
`harm caused by the respondent’s alleged violation. See id. § 7.067(a), (a-1), (b).
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`The Legislature has bestowed broader rights on counties and other political
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`subdivisions of the State that fall within the definition of “local government” in
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`section 7.067. See id. If a respondent is a local government, then the local
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`government may use a supplemental project in a settlement to lower the amount of
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`the administrative penalty assessed against the local government under section
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`7.051 even if the project is necessary to bring the respondent into compliance with
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`environmental laws or necessary to remediate environmental harm caused by the
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`local government’s alleged violation (the “First Special Right”). See id. In
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`addition, if a respondent is a local government, the Commission must approve a
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`supplemental environmental project for use in the settlement of an administrative
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`penalty assessed against the local government if the local government (1) has not
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`previously committed a violation at the same site with the same underlying cause
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`in the preceding five years, as documented in a Commission order; and (2) did not
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`agree, before the date that the Commission initiated the enforcement action, to
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`perform the project (the “Second Special Right”). See id.
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`In addition, in Water Code section 7.067(a-2), the Legislature requires the
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`Commission to develop a policy to prevent “regulated entities” from systematically
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`avoiding compliance through the use of supplemental environmental projects under
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`subsection (a-1)(1). See id. § 7.067(a-2). Under the plain text of section 7.067, the
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`only entities who may use supplemental environmental projects under subsection
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`(a-1)(1) are governmental entities that fall within the definition of “local
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`government.” See id. § 7.067 (a-1), (a-2), (b). The Legislature also requires that in
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`developing this policy, the Commission assess “the respondent’s financial ability
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`to pay administrative penalties.” See id. § 7.067 (a-2). Again, the only
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`respondents subject to this policy are governmental entities that fall within the
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`definition of “local government.” See id. § 7.067 (a-1), (a-2), (b). Simply put, the
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`Legislature created a statutory supplemental-project scheme part of which
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`exclusively benefits governmental entities. The Legislature gave only
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`governmental entities the First Special Right and the Second Special Right.
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`If counties and other governmental entities that fall within the definition of
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`“local government” enjoyed governmental immunity as to administrative penalties
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`under section 7.051, these entities would have immunity from suit, and the
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`Commission would lack subject-matter jurisdiction to adjudicate the Executive
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`Director’s request for these administrative penalties against one of these
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`governmental entities. See Tex. Dep’t of Transp., 8 S.W.3d at 638. If the entities
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`that fall within the definition of “local government” enjoyed governmental
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`immunity as to administrative penalties under section 7.051, these entities would
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`have immunity from liability, and thus the Commission could not hold them liable
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`for any administrative penalties under section 7.051. See Tooke, 197 S.W.3d at
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`332. Yet, under the plain text of section 7.067, any such governmental immunity
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`from administrative penalties would render meaningless the provisions of section
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`7.067 that give only local governments the right to settle and lessen their liability
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`for administrative penalties using the supplemental environmental projects
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`described in subsection (1) or subsection (2) of section 7.067(a-1). See Tex. Water
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`Code Ann. § 7.067(a-1). If counties and other political subdivisions of the State
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`have governmental immunity from the assessment of an administrative penalty
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`under section 7.051, why did the Legislature, in ordering the Commission to
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`establish a policy to prevent local governments from abusing their privilege under
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`subsection (1) of section 7.067(a-1), require that the policy include an assessment
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`of the local government’s financial ability to pay administrative penalties? See id.
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`§ 7.067 (a-1), (a-2), (b). Construing section 7.051 not to waive the County’s
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`governmental immunity would make meaningless part of the statutory scheme—
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`subsections (a-1) and (a-2) of section 7.067. See Tex. Water Code Ann. §§
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`7.067(a-1), (a-2). The Legislature’s enactment of these provisions bespeaks an
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`intent to waive governmental immunity under section 7.051.
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`7. The Four Aids from the Wichita Falls State Hospital Case
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`In Wichita Falls State Hospital, the supreme court points to four aids that
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`courts may use to determine whether the Legislature clearly and unambiguously
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`has waived governmental immunity in the absence of express-waiver language.
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`See 106 S.W.3d at 697. Courts are not required to use these nonexclusive aids, and
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`in a number of cases, the high court has chosen not to use them. See Chambers-
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`Liberty Counties Navigation Dist., 575 S.W.3d at 345–46; Tooke, 197 S.W.3d at
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`330–45. Nonetheless,