1. ADMINISTRATIVE HEARINGS BEFORE
GROUNDWATER CONSERVATION
DISTRICTS
J.D. Head
Managing Partner
Fritz, Byrne, Head & Harrison, PLLC
98 San Jacinto Blvd., Suite 2000
Austin, TX 78701
TEL: 512/476-2020
E-MAIL: jdhead@fbhh.com

2. SUBCHAPTER M OF CHAPTER 36,
TEX. WATER CODE
ADDRESSES NOTICE AND HEARING PROCEDURES FOR
PERMIT AND PERMIT AMENDMENT APPLICATIONS
- ADDED TO CHAPTER 36 IN 2005 BY HB 1763
- SOMEWHAT CONFUSING BECAUSE OF FAILURE TO
CLEARLY DISTINGUISH BETWEEN PROCEDURES FOR
CONTESTED AND UNCONTESTED HEARINGS
§ 36.415 – GROUNDWATER CONSERVATION DISTRICTS
(GCDs) WERE REQUIRED TO ADOPT PROCEDURAL RULES
TO IMPLEMENT SUBCHAPTER M
GCDs MAY ADOPT NOTICE AND HEARING PROCEDURES IN
ADDITION TO THOSE PROVIDED IN STATUTE

3. CONTESTED CASES
BY RULE, A DISTRICT SHALL:
(1) DEFINE UNDER WHICH CIRCUMSTANCES AN
APPLICATION IS CONSIDERED CONTESTED, AND
(2) LIMIT PARTICIPATION IN A HEARING ON A CONTESTED
APPLICATION TO PERSONS WHO HAVE A PERSONAL
JUSTICIABLE INTEREST RELATED TO A LEGAL RIGHT,
DUTY, PRIVILEGE, POWER OR ECONOMIC INTEREST
THAT IS WITHIN THE DISTRICT’S REGULATORY
AUTHORITY AND AFFECTED BY A PERMIT OR PERMIT
AMENDMENT APPLICATION – NOT INCLUDING
PERSONS WHO HAVE AN INTEREST COMMON TO
MEMBERS OF GENERAL PUBLIC

4. GCD CAN PROVIDE, BY RULE, THAT CERTAIN
PERMITS OR PERMIT AMENDMENTS DO NOT
REQUIRE A HEARING
- GENERAL MANAGER (GM) MAY ACT ON
APPLICATION, OR
- BOARD ACTS ON APPLICATION AT REGULAR
BOARD MEETING
§ 36.114

5. TWO TYPES OF PERMIT HEARINGS
- UNCONTESTED
- CONTESTED

6. § 36.403 – GM OR BOARD MAY SCHEDULE A
HEARING ON A PERMIT APPLICATION
MAY SCHEDULE MORE THAN ONE
APPLICATION FOR CONSIDERATION AT A
HEARING – VERY COMMON IN ACTIVE
GCDs
HEARING MAY BE HELD IN CONJUNCTION
WITH REGULARLY SCHEDULED BOARD
MEETING – LIMITS AMOUNT OF TIME A
GCD BOARD MUST MEET

7. § 36.404 – NOTICE
NOTICE OF HEARING INCLUDES:
- NAME OF APPLICANT
- ADDRESS AND LOCATION OF WELL
- BRIEF EXPLANATION OF PROPOSED PERMIT – AMOUNT OF
GROUNDWATER REQUESTED AND PURPOSE OF USE
- TIME, DATE AND LOCATION OF HEARING
NO LATER THAN THE 10TH DAY BEFORE HEARING:
- POST NOTICE AT DISTRICT OFFICE
- PROVIDE NOTICE TO COUNTY CLERK FOR EACH COUNTY IN
DISTRICT
- PROVIDE NOTICE BY MAIL TO:
- APPLICANT
- ANY PERSON WHO HAS REQUESTED NOTICE
- ANY OTHER PERSON ENTITLED TO NOTICE UNDER
DISTRICT RULES

8. § 36.406 - HEARING PROCEDURES
- HEARING MUST BE CONDUCTED BY
(1) QUORUM OF THE BOARD; OR
(2) INDIVIDUAL WHOM BOARD HAS
DELEGATED IN WRITING
RESPONSIBILITY TO PRESIDE AS
HEARINGS EXAMINER
BOARD PRESIDENT OR HEARINGS EXAMINER
SHALL SERVE AS PRESIDING OFFICER

9. § 36.406 - POWERS OF PRESIDING OFFICER
- CONVENE HEARING
- SET ADDITIONAL HEARING DATES
- DESIGNATE PARTIES REGARDING A CONTESTED
APPLICATION
- ESTABLISH ORDER FOR PRESENTATION OF EVIDENCE
- ADMINISTER OATHS
- EXAMINE PERSONS PRESENTING TESTIMONY
- ENSURE THAT INFORMATION AND TESTIMONY ARE
INTRODUCED AS CONVENIENTLY AND EXPEDITIOUSLY
AS POSSIBLE WITHOUT PREJUDICING RIGHTS OF
PARTIES
- PRESCRIBE REASONABLE TIME LIMITS FOR TESTIMONY
AND PRESENTATION OF EVIDENCE (VERY GOOD IDEA IN
COMPLEX, MULTI-PARTY HEARING)

10. § 36.406 - POWERS OF PRESIDING OFFICER – CONT’D
DISTRICT MAY ALLOW ANYONE TO COMMENT ON
UNCONTESTED APPLICATION
MAY ALLOW WRITTEN SWORN TESTIMONY
MAY EXCLUDE WRITTEN TESTIMONY IF NO OPPORTUNITY
FOR CROSS EXAMINATION BY PARTY TO CONTESTED
HEARING
MAY ALLOW TESTIMONY TO BE SUPPLEMENTED WITH
NOTICE TO ALL COMMENTERS AND PARTIES - PERSONS
MAY RESPOND TO SUPPLEMENTAL TESTIMONY
MAY ORDER PARTIES TO CONTESTED CASE HEARING TO
MEDIATION

11. § 36.408 – RECORDING OF HEARING
- IF CONTESTED HEARING – A PARTY CAN
REQUEST A COURT REPORTER TRANSCRIBE
THE HEARING – PRESIDING OFFICER CAN
ASSESS COSTS
- OTHERWISE – PRESIDING OFFICER SHALL
KEEP A RECORD OF EACH HEARING IN FORM
OF VIDEO, AUDIO OR A COURT REPORTER
- IN UNCONTESTED HEARING, PRESIDING
OFFICER MAY SUBSTITUTE MINUTES OR §
36.410 REPORT AS METHOD OF RECORDING

12. § 36.410 – THE REPORT
- PRESIDING OFFICER SUBMITS A REPORT TO BOARD NOT LATER
THAN 30TH DAY AFTER HEARING CONCLUDED
REPORT INCLUDES:
- SUMMARY OF SUBJECT MATTER OF HEARING
- SUMMARY OF EVIDENCE OR PUBLIC COMMENTS RECEIVED
- PRESIDING OFFICER’S RECOMMENDATION
APPLICANT, PARTIES OR COMMENTERS MAY SUBMIT WRITTEN
EXCEPTIONS TO THE BOARD
IF HEARING CONDUCTED BY A QUORUM AND IF PRESIDING
OFFICER HAS RECORD OF HEARING, THE PRESIDING OFFICER
SHALL DECIDE WHETHER TO PREPARE A REPORT TO THE BOARD
BOARD ACTION – NO LATER THAN 60 DAYS AFTER DATE FINAL
HEARING IS CONCLUDED

13. § 36.412 – REQUEST FOR REHEARING OR FINDINGS AND
CONCLUSIONS
AN APPLICANT IN A CONTESTED OR UNCONTESTED HEARING OR
A PARTY TO A CONTESTED CASE MAY ADMINISTRATIVELY
APPEAL THE DECISION BY REQUESTING FINDINGS AND
CONCLUSIONS OR A REHEARING BEFORE THE BOARD
BOARD MUST MAKE WRITTEN FINDINGS AND CONCLUSIONS, IF
TIMELY REQUEST FILED, WITHIN 35 DAYS OF REQUEST.
A PERSON WHO RECEIVES A CERTIFIED COPY OF FINDINGS AND
CONCLUSIONS MAY REQUEST A REHEARING NOT LATER THAN
20TH DAY AFTER BOARD ISSUES FINDINGS AND CONCLUSIONS
IF REQUEST GRANTED, BOARD SHALL SCHEDULE HEARING
WITHING 45 DAYS AFTER REQUEST GRANTED
REQUEST OVERRULED BY OPERATION OF LAW 91 DAYS AFTER
DATE OF REQUEST

14. SENATE BILL 693 – SOAH HEARINGS
RELATES TO PERMIT HEARINGS CONDUCTED BY A
GCD AND STATE OFFICE OF ADMINISTRATIVE
HEARINGS (SOAH)
AUTHOR’S INTENT:
- PROVIDE OBJECTIVITY AND BALANCE IN
PERMITTING PROCESS
- PROVIDE DISTRICTS WITH NEUTRAL 3RD PARTY
EXAMINERS BETTER EQUIPPED TO HANDLE
ADMINISTRATIVE ISSUES ASSOCIATED WITH
CONTESTED CASE HEARINGS
- MORE ECONOMICAL FOR GCDs

15. SENATE BILL 693 – SOAH
HEARING (CONT’D)
KEY POINTS:
- GCD MAY ADOPT RULES FOR HEARINGS THAT ARE
CONSISTENT WITH PROCEDURAL RULES OF STATE OFFICE
OF ADMINISTRATIVE HEARINGS
- IF APPLICANT OR OTHER PARTY TO CONTESTED CASE
REQUESTS A HEARING BEFORE SOAH, GCD MUST
CONTRACT WITH SOAH TO CONDUCT HEARING
- REQUEST FOR HEARING BEFORE SOAH MUST BE MADE
NOT LATER THAN 14 DAYS BEFORE DATE OF EVIDENTIARY
HEARING – OR OTHER DEADLINE BY GCD RULE
- GCD CHOSES LOCATION OF SOAH HEARING – CAN BE IN
AUSTIN OR IN DISTRICT

16. SENATE BILL 693 – SOAH HEARINGS (CONT’D)
PARTY REQUESTING THE SOAH HEARING PAYS COSTS ASSOCIATED
WITH CONTRACT FOR HEARING – MONEY DEPOSITED WITH GCD
PRIOR TO HEARING – EXCESS MONEY REFUNDED.
IF SOAH PRESIDES OVER HEARING, GCD BOARD MAKES FINAL
DECISION BASED ON SOAH’S PROPOSAL FOR DECISION. (BOARD
NOT REQUIRED TO ADOPT SOAH RECOMMENDATION.)
GCDs SHALL ADOPT RULES TO:
(1) ESTABLISH A PROCEDURE FOR PRELIMINARY AND
EVIDENTIARY HEARINGS.
(2) ALLOW THE PRESIDING OFFICER, AT THE PRELIMINARY
HEARING, TO DETERMINE A PARTY’S RIGHTS TO PARTICIPATE IN A
HEARING.
(3) SET A DEADLINE FOR A PARTY TO FILE A REQUEST TO REFER A
CONTESTED CASE TO SOAH.

17. GONZALES COUNTY UNDERGROUND WATER CONSERVATION DISTRICT
ADMINISTRATIVE HEARINGS
- SAN ANTONIO WATER SYSTEM PERMIT HEARING
- GM OBJECTED TO PERMITS
- BOARD DESIGNATED HEARINGS EXAMINER – SAWS PAID COST OF HEARINGS
EXAMINER
- HEARINGS EXAMINER CONDUCTED PARTY STATUS HEARING AND FULL BOARD
VOTED ON PARTIES
- PARTIES INCLUDED GM, SSLGC, CRWA, WPA, CITY OF NIXON, CITY OF SMILEY
- HEARINGS EXAMINER CONVENED PREHEARING CONFERENCE WITH ALL PARTIES TO
SET DISCOVERY SCHEDULE
- MULTIPLE MEDIATION SESSIONS
- ALL PARTIES FILED WRITTEN TESTIMONY
- NUMEROUS DEPOSITIONS
- HEARINGS EXAMINER PRESIDED OVER 6 DAY HEARING
- 13 WITNESSES
- 1,500 PAGES OF HEARING TRANSCRIPT
- 2,500 PAGES OF EXHIBITS AT HEARING
- 270 PAGES OF BRIEFING
- 175 PAGES OF HEARINGS OFFICER REPORT
- BOARD VOTED 3 TO 2 TO ISSUE PERMITS TO SAWS
- BOARD DECISION IS ON APPEAL
- 13TH COURT OF APPEALS DECISION PENDING

18. SAWS HEARING INVOLVED COMPLEX
EVIDENCE ON DRAWDOWN MODELS
PRIMARY ISSUES:
- WOULD DRAWDOWN FROM SAWS PUMPING CAUSE
MORE THAN 100 FEET OF DRAWDOWN IN CARRIZO
AQUIFER
- WOULD SAWS PUMPING IMPACT EXISTING WELLS
- WAS THERE A NEED FOR WATER IN SAWS SERVICE
AREA
* TESTIMONY ON DRAWDOWN MODELS WAS LENGTHY
AND MIND NUMBING

19. - GCUWCD -
3 EXPORTER PERMIT APPLICATIONS
CURRENTLY PENDING
- CANYON REGIONAL WATER
AUTHORITY – 4,400 ACRE FEET
- HAYS CALDWELL PUBLIC UTILITY
AGENCY – 10,300 ACRE FEET
- TEXAS WATER ALLIANCE – 15,000 ACRE
FEET

20. ALL THREE APPLICATIONS PROTESTED
- APPLICANTS ARE PROTESTING EACH OTHERS
PERMITS
- NUMEROUS CITIZENS OPPOSE PERMITS
- BOARD DESIGNATED OUTSIDE HEARINGS
EXAMINER
- GM DID NOT OPPOSE PERMITS OR SEEK PARTY
STATUS
- HEARING ON PARTY STATUS BEFORE BOARD
CONVENED AT 1 P.M. AND ENDED AT 11:30 P.M. –
OVER 10 HOURS!
- COURT REPORTER LEFT BEFORE END OF
HEARING

21. BOARD VOTED ON INDIVIDUAL PARTY
STATUS FOR EACH APPLICATION – BASED
ON HEARINGS EXAMINER’S
RECOMMENDATIONS
- ALL APPLICATIONS CURRENTLY IN
MEDIATION
- HEARINGS EXAMINER WILL CONDUCT
HEARINGS AND PREPARE REPORT TO
BOARD

22. OBSERVATIONS, ISSUES AND RECOMMENDATIONS ON
ADMINISTRATIVE HEARINGS
- IF GM IS AUTOMATIC PARTY IN HOTLY CONTESTED CASE,
THIS CAN BE EXTREMELY TIME CONSUMING FOR GM
- HAVING A GCD BOARD BEING A PROTESTING PARTY IS
VERY PROBLEMATIC
- IF QUORUM OF BOARD HEARS A CONTESTED CASE, THE
PRESIDING OFFICER SHOULD GET LEGAL ASSISTANCE
- IF BOARD DENIES PERMIT WITHOUT A HEARING
OFFICER’S REPORT, IT MAY HAVE TO PREPARE FINDINGS
AND CONCLUSIONS JUSTIFYING ITS ACTION

23. OBSERVATIONS, ISSUES AND RECOMMENDATIONS ON
ADMINISTRATIVE HEARINGS (CONT’D)
- CONSIDER HAVING PUBLIC NOTICE SPELL OUT HOW TO
REQUEST A CONTESTED CASE HEARING
- SEND PARTIES TO MEDIATION!!
- GCDs RULES REGARDING HEARINGS RUN THE GAMUT
FROM NON-COMPLIANCE WITH SUBCHAPTER M OF
CHAPTER 36 TO VERY DETAILED PROCEDURES
- ADOPT NEW RULES TO IMPLEMENT SB 693
- CONSIDER ADOPTING RULE INDICATING WHEN MATTER
BECOMES CONTESTED WITH RESPECT TO EX PARTE
COMMUNICATIONS

24. “EX PARTE” COMMUNICATION
MEANS A COMMUNICATION
WITH A DECISION MAKER BY
ONE PARTY TO A MATTER
WITHOUT NOTICE TO THE
OTHER PARTY OR PARTIES TO
THE MATTER

25. RULE 3.05 OF THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT
“MAINTAINING IMPARTIALITY OF TRIBUNAL
A LAWYER SHALL NOT:
(a) EXCEPT AS OTHERWISE PERMITTED BY LAW AND NOT PROHIBITED BY
APPLICABLE RULES OF PRACTICE OR PROCEDURE, COMMUNICATE OR CAUSE
ANOTHER TO COMMUNICATE EX PARTE WITH A TRIBUNAL FOR THE PURPOSE
OF INFLUENCING THAT ENTITY OR PERSON CONCERNING A PENDING MATTER
OTHER THAN:
(1) IN THE COURSE OF OFFICIAL PROCEEDINGS IN THE CAUSE;
(2) IN WRITING IF HE PROMPTLY DELIVERS A COPY OF THE WRITING TO
OPPOSING COUNSEL OR THE ADVERSE PARTY IF HE IS NOT REPRESENTED
BY A LAWYER;
(3) ORALLY UPON ADEQUATE NOTICE TO OPPOSING COUNSEL OR TO THE
ADVERSE PARTY IF HE IS NOT REPRESENTED BY A LAWYER.
(b) FOR PURPOSES OF THIS RULE:
(1) “MATTER” HAS THE MEANINGS ASCRIBED BY IT IN RULE 1.10(f) OF
THESE RULES;
(2) A MATTER IS “PENDING” BEFORE A PARTICULAR TRIBUNAL EITHER
WHEN THAT ENTITY HAS BEEN SELECTED TO DETERMINE THE MATTER OR
WHEN IT IS REASONABLY FORESEEABLE THAT THAT ENTITY WILL BE SO
SELECTED.

26. RULE 1.10(f) PROVIDES THAT THE
TERM “MATTER” DOES NOT
INCLUDE REGULATION-MAKING OR
RULE-MAKING PROCEEDINGS OR
ASSIGNMENTS, BUT THE TERM
INCLUDES THE FOLLOWING:
(1) ANY ADJUDICATORY
PROCEEDING, APPLICATION,
REQUEST FOR A RULING OR OTHER
DETERMINATION . . . INVOLVING A
SPECIFIC PARTY OR PARTIES

27. CHAPTER 36 TEX. WATER CODE DOES
NOT CONTAIN ANY EXPLICIT
PROHIBITION OF EX PARTE
COMMUNICATIONS
BUT
CASES HEARD BY STATE OFFICE OF
ADMINISTRATIVE HEARINGS ARE
CONTROLLED BY CERTAIN
SECTIONS OF CHAPTER 2001, GOV’T
CODE – INCLUDING A PROHIBITION
OF EX PARTE COMMUNICATIONS.

28. SECTION 2001.061(a), TEX. GOV’T CODE PROVIDES:
(a) UNLESS REQUIRED FOR THE DISPOSITION OF AN EX PARTE MATTER
AUTHORIZED BY LAW, A MEMBER OR EMPLOYEE OF A STATE AGENCY
ASSIGNED TO RENDER A DECISION OR TO MAKE FINDINGS OF FACT
AND CONCLUSIONS OF LAW IN A CONTESTED CASE MAY NOT
DIRECTLY OR INDIRECTLY COMMUNICATE IN CONNECTION WITH AN
ISSUE OF FACT OR LAW WITH A STATE AGENCY, PERSON, PARTY, OR A
REPRESENTATIVE OF THOSE ENTITIES, EXCEPT ON NOTICE AND
OPPORTUNITY FOR EACH PARTY TO PARTICIPATE.
(b) A STATE AGENCY MEMBER MAY COMMUNICATE EX PARTE WITH
ANOTHER MEMBER OF THE AGENCY UNLESS PROHIBITED BY OTHER
LAW.
(c) UNDER SECTION 2001.090, A MEMBER OR EMPLOYEE OF A STATE
AGENCY ASSIGNED TO RENDER A DECISION OR TO MAKE FINDINGS OF
FACT AND CONCLUSIONS OF LAW IN A CONTESTED CASE MAY
COMMUNICATE EX PARTE WITH AN AGENCY EMPLOYEE WHO HAS
NOT PARTICIPATED IN A HEARING IN THE CASE FOR THE PURPOSE OF
USING THE SPECIAL SKILLS OR KNOWLEDGE OF THE AGENCY AND ITS
STAFF IN EVALUATING THE EVIDENCE.
THIS PROVISION GENERALLY PROHIBITS CERTAIN EX PARTE
COMMUNICATIONS IN CONNECTION WITH AN ISSUE OF FACT OR LAW
IN A CONTESTED CASE.

29. THE EX PARTE PROHIBITION
APPLIES TO COMMUNICATION
WITH THE ULTIMATE DECISION
MAKER AND HE/SHE WHO
MAKES FINDINGS OF FACT AND
CONCLUSIONS OF LAW
- THE BOARD
- THE HEARINGS EXAMINER
OR SOAH ALJ

30. THE RULE 3.05 EX PARTE PROHIBITION
APPLIES TO LAWYERS
IS APPLICABLE TO ANY PENDING MATTER
BEFORE A GCD BOARD OR SOAH
THE GOV’T CODE EX PARTE PROHIBITION
APPLIES MORE BROADLY – TO PARTIES,
PERSONS OR REPRESENTATIVES
IS APPLICABLE TO CASES REFERRED BY A
GCD TO SOAH
APPLIES TO SOAH JUDGE AND GCD BOARD IN
A CONTESTED CASE

31. MANY GCD PROCEDURAL RULES
SPECIFICALLY PROHIBITING EX PARTE
COMMUNICATIONS IN CONTESTED CASE
HEARINGS BEFORE THE BOARD
RULES TYPICALLY APPLY TO ALL
PARTIES AND PERSONS
GCD EX PARTE PROHIBITION RULE CAN
BE USED TO CURTAIL DISCUSSION OF
CONTESTED PERMITS IN PUBLIC
COMMENT SESSION OF AGENDA