[1] IN THE SUPREME COURT OF TEXAS



[2] No. 95-0881



[3] Phil Barshop, Ralph Zendejas, Mike Beldon, Rosa Maria Gonzalez, John

Sanders, Sylvia Ruiz Mendelsohn, Joe Bernal, Rogelio Munoz, Mack Martinez,

Jane Hughson, Doug Miller, Paula DiFonzo, and



[4] The State of Texas,



[5] Appellants



v.



[6] Medina County Underground Water Conservation District, et al.,



[7] Appellees



[8] On Direct Appeal from the 38th District Court of Medina County, Texas



[9] Argued March 20, 1996



[10] Justice Abbott delivered the opinion for a unanimous Court.



[11] This case concerns water rights in Texas. The clash between the

property rights of landowners in the water beneath their land and the right

of the State to regulate water for the benefit of all is more than a

century old. This case presents another chapter in this ongoing battle.



[12] Historically, landowners have had property rights in the water beneath

their land. Over time, however, the State has increasingly attempted to

regulate water usage and its withdrawal from the ground. Indeed, the State

has the responsibility under the Texas Constitution to preserve and

conserve water resources for the benefit of all Texans. Article 16, section

59 of the Texas Constitution provides: The conservation and development of

all of the natural resources of this State, . . . and the preservation and

conservation of all such natural resources of the State are each and all

hereby declared public rights and duties; and the Legislature shall pass

all such laws as may be appropriate thereto. Tex. Const. art. XVI,

Section(s) 59(a). Pursuant to this constitutional authority, the

Legislature enacted the Edwards Aquifer Act and created the Edwards Aquifer

Authority. Plaintiffs claim that the Act violates their right to withdraw

water from their property.



[13] The Plaintiffs in this case consist of the Medina County Underground

Water Conservation District, the Uvalde County Underground Water

Conservation District, the Texas and Southwestern Cattle Raisers

Association, Russell Brothers Cattle Company, and Bruce Gilleland

(collectively referred to as "Plaintiffs"). They filed suit against the

individual directors of the Edwards Aquifer Authority, the State of Texas,

and the City of San Antonio (collectively referred to as "the State").

Plaintiffs claim that various provisions of the Edwards Aquifer Act violate

the Texas Constitution. The district court agreed with Plaintiffs and

enjoined the Act's implementation. The State then perfected a direct appeal

to this Court under section 22.001 of the Government Code.



[14] This appeal centers on whether the Act is constitutional on its face,

not whether it is unconstitutional when applied to a particular landowner.

Under a facial challenge, Plaintiffs must establish that the statute, by

its terms, always operates unconstitutionally. We conclude that Plaintiffs

have not sustained that burden. Accordingly, we reverse the judgment of the

trial court and render judgment that the Act is not facially

unconstitutional.



I



[15] The Edwards Aquifer is a unique underground system of water-bearing

formations in Central Texas. Water enters the aquifer through the ground as

surface water and rainfall and leaves the aquifer through well withdrawals

and springflow.



[16] The aquifer is the primary source of water for residents of the south

central part of this state. It is vital to the general economy and welfare

of the State of Texas. See Act of May 30, 1993, 73d Leg., R.S., ch. 626,

Section(s) 1.06, 1993 Tex. Gen. Laws 2353, as amended by Act of May 29,

1995, 74th Leg., R.S., ch. 261, 1995 Tex. Sess. Law Serv. 2505. Because of

anticipated increases in the withdrawal of water from the aquifer and the

potentially devastating effects of a drought, the Legislature determined it

was "necessary, appropriate, and a benefit to the welfare of this state to

provide for the management of the aquifer." Id. The Legislature thus

enacted the Edwards Aquifer Act in 1993 to manage the aquifer and to

sustain the diverse economic and social interests dependent on the aquifer

water. Id. Section(s) 1.01.



[17] The Act establishes a conservation and reclamation district named the

Edwards Aquifer Authority to regulate groundwater withdrawals by well from

the aquifer. Id. Section(s) 1.02, 1.14. The Authority's jurisdiction

includes all or parts of Atascosa, Bexar, Caldwell, Comal, Guadalupe, Hays,

Medina, and Uvalde counties. Id. Section(s) 1.02. The Authority supersedes

the Edwards Underground Water District, which previously possessed limited

power to govern the aquifer. Id. Section(s) 1.41.



[18] The Act imposes an aquifer-wide cap on water withdrawals by nonexempt

wells of 450,000 acre-feet of water per year through the year 2007 and

400,000 acre-feet per year thereafter. *fn1 Id. Section(s) 1.14(b) & (c).

The Authority can increase the withdrawal caps if it determines that

additional water supplies are safely available from the aquifer. Id.

Section(s) 1.14(d). The Authority will allocate these caps among wells by a

permit system. However, all wells producing no more than 25,000 gallons of

water a day for domestic or livestock purposes are exempt from the permit

system and the caps. Id. Section(s) 1.16(c), 1.33. This exemption allows

all landowners, except those within or serving a platted subdivision, to

drill wells for household purposes, watering animals, or irrigating a

family garden. Id. Section(s) 1.03(9), 1.33.



[19] The permit system established by the Act gives preference to "existing

users." The Act defines "existing users" as those persons who withdrew and

beneficially used underground water from the aquifer on or before June 1,

1993. Id. Section(s) 1.03(10). The Authority will grant regular permits

only to existing users who properly file a declaration of historical use

and who can establish, by convincing evidence, beneficial use of the water

withdrawn between June 1, 1972 and May 31, 1993. Id. 1.16. The Act requires

existing users to file this declaration of historical use on or before

March 1, 1994. Id. Until regular permits are granted, existing users can

withdraw and beneficially use water, provided it is not wasted. Id.

Section(s) 1.17.



[20] The Act entitles an existing user to a permit for an amount of water

equal to the user's maximum beneficial use of water during any one calendar

year of the historical period, unless the sum-total amount of such use

throughout the aquifer exceeds 450,000 acre-feet. Id. Section(s) 1.16. If

this occurs, the Authority is required to adjust proportionately the amount

of water authorized for withdrawal under the permits to meet the cap. *fn2

Id.



[21] To the extent that water is available for permitting after the

issuance of permits to existing users, the Authority may issue additional

regular permits, subject to the 450,000 acre-feet cap. Id. 1.18. Under this

provision, landowners (other than those in platted subdivisions) who cannot

establish beneficial use of aquifer water prior to June 1, 1993 will not be

entitled to a water withdrawal permit unless the aggregate of all existing

user permits is less than 450,000 acrefeet. Such landowners would

nevertheless be able to withdraw up to 25,000 gallons of water a day under

the domestic and livestock use exemption.



[22] Under certain circumstances, the Authority may also issue

interruptible permits allowing some landowners to withdraw water only when

the level of the aquifer is at specified depths. Id. Section(s) 1.19.

Furthermore, the Authority possesses the power to issue emergency permits

to prevent the loss of life or to prevent severe, imminent threats to the

public health or safety. Id. Section(s) 1.20.



[23] The Act was originally passed on May 30, 1993, and was to take effect

September 1, 1993. However, it did not become effective then because the

United States Department of Justice refused to give administrative

preclearance to the Act under section 5 of the Voting Rights Act due to the

appointment method of selecting the board of directors for the Authority.

In response,



[24] the Legislature amended the Act in May 1995, changing the board's

selection method from appointive to elective. See Act of May 29, 1995, 74th

Leg., R.S., ch. 261, 1995 Tex. Sess. Law Serv. 2505. In August 1995, the

Department of Justice precleared the amended Act.



[25] The amended Act was to be effective August 28, 1995. Id. However, six

days before the effective date, Plaintiffs brought this lawsuit to restrain

the administration and enforcement of the Act. The district court held the

Act unconstitutional and enjoined the State from enforcing the Act.



[26] The district court made 361 findings of fact, including sweeping

findings concerning each aspect of the Act it held unconstitutional. These

findings of fact, however, have a limited role in our constitutional review

of this Act. Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504,

520 (Tex. 1995). If the Act is constitutional under any possible state of

facts, we should presume that such facts exist without making a separate

investigation of the facts or attempting to decide whether the Legislature

has reached a correct conclusion with respect to the facts. Id.; see also

Corsicana Cotton Mills v. Sheppard, 71 S.W.2d 247, 250 (Tex. 1934). Thus,

in our review of this Act, we focus on the entire record presented to us

rather than simply relying upon the fact findings of the district court.



[27] Because of the district court's injunction, this Act, which was

originally to be effective September 1, 1993, has yet to be implemented.

The State brought this direct appeal to this Court seeking authorization to

implement the Act.



II



[28] Governmental regulation of Edwards Aquifer water is nothing new. For

years, disparate authorities, including the Medina County Underground Water

Conservation District, the Uvalde County Underground Water Conservation

District, and the Edwards Underground Water District, have used a variety

of laws such as the Texas Water Code to regulate the use of the aquifer

water.



[29] Plaintiffs claim, however, that the Act and the new Authority are

distinctly different from prior regulations. Plaintiffs assert that the Act

does more than just regulate use of the aquifer water; it actually deprives

the landowner of a vested property right. Plaintiffs concede that the State

has the right to regulate the use of underground water, see Friendswood

Dev. Co. v. Smith-Southwest Indus., 576 S.W.2d 21, 29-30 (Tex. 1978);

Beckendorff v. Harris-Galveston Coastal Subsidence Dist., 558 S.W.2d 75

(Tex. Civ. App.--Houston [14th Dist.] 1977), writ ref'd n.r.e., 563 S.W.2d

239 (Tex. 1978), but maintain that they own the water beneath their land

and that they have a vested property right in this water. The State insists

that, until the water is actually reduced to possession, the right is not

vested and no taking occurs. Thus, the State argues that no constitutional

taking occurs under the statute for landowners who have not previously

captured water, while Plaintiffs argue that these landowners have had a

constitutional deprivation of property rights. The parties simply

fundamentally disagree on the nature of the property rights affected by

this Act.



[30] Plaintiffs' argument relies on our line of cases which adopted the

rule of capture for underground water. See, e.g., Houston & T. C. Ry. Co.

v. East, 81 S.W. 279 (Tex. 1904). East presented a claim by a landowner

with a shallow well on his homestead that dried up when a railroad dug a

deep well on its adjacent property. The landowner's claim for damages was

rejected by this Court. In doing so, we adopted the common law rule that

the right to withdraw underground percolating water is not correlative, but

is "absolute." Id. at 280-81. Under this rationale, underground water in

Texas has not been subject to the "reasonable use" rule adopted by some

other American jurisdictions.



[31] We followed the rationale of the East rule in City of Corpus Christi

v. City of Pleasanton, 276 S.W.2d 798, 801 (Tex. 1955). We noted that the

only limitations on the common-law absolute ownership rule were that the

owner could neither maliciously take water for the sole purpose of injuring

his neighbor nor wantonly and willfully waste water. Id. The East rule has

since been modified to recognize that a landowner can be liable for

negligent withdrawal of water that proximately causes subsidence damage to

the land of others. See Friendswood, 576 S.W.2d at 30.



[32] The State concedes that Plaintiffs have significant rights to the

water under their land. In the Act, the Legislature specifically recognized

the ownership and rights of the landowner in the underground water and that

action taken pursuant to the Act may not be construed as depriving or

divesting the owner of these ownership rights. See Act of May 30, 1993,

supra, Section(s) 1.07.



[33] At the same time, however, the State relies on our opinions which have

long recognized the necessity of legislation that conserves and preserves

our limited water resources. See, e.g., City of Corpus Christi, 276 S.W.2d

at 803; Friendswood, 576 S.W.2d at 30. Conservation of water has always

been a paramount concern in Texas, especially in times, like today, of

devastating drought. The past droughts of 1910 and 1917 prompted the

citizens of this state to approve the Conservation Amendment to the Texas

Constitution, which provides that the conservation, preservation, and

development of the state's natural resources are public rights and duties.

See In re the Adjudication of the Water Rights of the Upper Guadalupe, 642

S.W.2d 438, 440 (Tex. 1982). Between 1950 and 1957, Texas sustained a

record period of drought which almost dried up the aquifer springs. See id.

at 441. The prospect of future droughts always lingers in the face of

everincreasing demands for water from the aquifer.



[34] While our prior decisions recognize both the property ownership rights

of landowners in underground water and the need for legislative regulation

of water, we have not previously considered the point at which water

regulation unconstitutionally invades the property rights of landowners.

The issue of when a particular regulation becomes an invasion of property

rights in underground water is complex and multifaceted. The problem is

further complicated in this case because Plaintiffs have brought this

challenge to the Act before the Authority has even had an opportunity to

begin regulating the aquifer.



[35] Despite these problems and competing interests, this case involves

only a facial challenge to the Act. Because Plaintiffs have not established

that the Act is unconstitutional on its face, it is not necessary to the

disposition of this case to definitively resolve the clash between property

rights in water and regulation of water. Instead, our focus will be on the

issues which control the resolution of this case.



III



[36] The initial issue to decide is whether Plaintiffs have standing to

bring this lawsuit. Standing is a necessary component of subject matter

jurisdiction. A two-part test governs whether a plaintiff has standing to

challenge a statute. First, the plaintiff must suffer some actual or

threatened injury under the statute. Second, the plaintiff must contend

that the statute unconstitutionally restricts the plaintiff's own rights.

Garcia, 893 S.W.2d at 518.



[37] Asserting that Plaintiffs cannot establish an actual or threatened

injury, the State maintains that Plaintiffs are merely speculating that

they will be deprived of property rights under the Act. The State argues

that Plaintiffs must actually be deprived of their property before they can

maintain a challenge to this statute. This argument, however, misconstrues

the nature of the Plaintiffs' challenge to the Act.



[38] Plaintiffs do not--and cannot--assert that the Act is unconstitutional

"as applied" because the Act has never been applied to anyone. Instead,

Plaintiffs claim only that the Act is unconstitutional on its face. To

sustain a facial challenge, the challenging party must establish that the

statute, by its terms, always operates unconstitutionally. Garcia, 893

S.W.2d at 518. Thus, through this challenge, Plaintiffs are arguing that

the Act will, under all circumstances, deprive them of their property

rights in underground water. We therefore conclude that Plaintiffs have

properly alleged an actual or threatened injury under the Act.



[39] The next aspect of the standing inquiry is whether the Plaintiffs

contend that the statute unconstitutionally restricts their own rights

rather than someone else's rights. At least one of the named Plaintiffs,

Russell Brothers Cattle Company, is a landowner whose property will

allegedly be unconstitutionally taken by the Act. Russell Brothers thus

satisfies this prong of the standing test. Because the other Plaintiffs

bring the same facial challenges to the Act and seek the same declaratory

relief as Russell Brothers, a determination of their individual standing is

not necessary. See id. at 519.



IV



[40] Plaintiffs claim that the Act is unenforceable because the Legislature

did not follow the constitutionally required notice procedures necessary to

create the Authority. The Conservation Amendment of the Texas Constitution

requires two types of notice for legislation creating a conservation or

reclamation district such as the Authority: newspaper publication and

delivery of a copy of the bill to the county commissioners courts and to

the governing bodies of incorporated cities or towns where the district

will be located or have jurisdiction. Tex. Const. art. XVI, Section(s)

59(d), (e). However, only newspaper notice is required when amending

legislation that previously created a conservation or reclamation district.

Tex. Const. art. XVI, 59(d).



[41] Before passing the 1993 Act, the Legislature provided notice by both

newspaper publication and delivery to the requisite county commissioners

courts and governing bodies of incorporated cities and towns. When the Act

was amended in 1995, the Legislature provided only newspaper notice.



[42] Plaintiffs do not challenge the notice provided for the original 1993

Act. Instead, they claim that the notice provided for the 1995 amendments

was inadequate. Plaintiffs contend that because the 1995 Act was needed to

remedy the 1993 Act, it was the 1995 Act that actually created the

Authority; thus necessitating notice by both newspaper and delivery. We

disagree.



[43] The Authority was created in section 1.02 of the 1993 Act labeled

"CREATION." That section provides: "A conservation and reclamation

district, to be known as the Edwards Aquifer Authority, is created . . . ."

Act of May 30, 1993, supra, Section(s) 1.02. The 1993 Act was then amended

in 1995 to remedy the voting rights objections of the Justice Department.

Indeed, the language and text of the 1995 Act clearly establish that it did

not create the Authority but merely amended the 1993 Act. The 1995 Act

provides:



[44] Article 1, Chapter 626, Acts of the 73rd Legislature, Regular Session,

1993, [the Edwards Aquifer Authority Act], is amended by amending Section

1.09 and by adding Sections 1.091, 1.092, and 1.093 to read as follows:



[45] Act of May 29, 1995, supra, Section(s) 1 (emphasis added). The amended

and added sections do not create the Authority, but rather only deal with

who may be elected or appointed as a director of the Authority. Because the

1995 Act merely amends the 1993 Act which created the Authority, the Texas

Constitution requires only newspaper notice.



[46] Plaintiffs next contend that the 1995 newspaper notice was

insufficient because it did not provide enough details to give fair warning

of the Act's consequences.



[47] The notice provided:



[48] NOTICE. Notice is hereby given of the intention to introduce a bill in

the 74th Legislature to create a new, elected authority to manage the

resources of the Edwards Aquifer. The board members of the newly created

Edwards Aquifer Authority will be elected from Bexar, Comal, Hays, Medina,

Uvalde, Atascosa, Caldwell and Guadalupe Counties. The board shall adopt

rules necessary to carry out the authority's powers and duties.



[49] The Conservation Amendment to the Texas Constitution requires the

newspaper notice to set "forth the general substance of the contemplated

law . . . ." Tex. Const. art. XVI, Section(s) 59(d). This provision does

not require specific notice of every detail of the proposed legislation.

Such detail would be nonsensical considering that some legislation is

significantly changed from its original formulation. Notice is sufficient

if it informs a reasonable person that the Legislature will consider issues

which may be important to the affected public. The notice given was

sufficient to inform those interested that the directors of the Authority

would be elected. The Plaintiffs' active involvement in the legislative

process evidences the sufficiency of the notice. See Moore v. Edna Hosp.

Dist., 449 S.W.2d 508, 514 (Tex. Civ. App.--Corpus Christi 1969, writ ref'd

n.r.e.)(holding that required notice was sufficient because the public

seemingly was aware of the issue and there was no showing that the notice

actually misled any voters). We therefore hold that the Legislature

properly complied with the notice requirements of the Conservation

Amendment in enacting this legislation.



V



[50] Plaintiffs next argue that the Act is unconstitutional under article

I, section 17 of the Texas Constitution as a taking of private property for

public use without adequate compensation. Article I, section 17 provides:



[51] No person's property shall be taken, damaged or destroyed for or

applied to public use without adequate compensation being made, unless by

the consent of such person; and, when taken, except for the use of the

State, such compensation shall be first made, or secured by a deposit of

money. . . . Tex. Const. art. I, Section(s) 17. Plaintiffs agree that this

clause does not proscribe the taking of property for public use; rather, it

merely requires just compensation for the property taken. Maher v. Lasater,

354 S.W.2d 923, 924 (Tex. 1962); see also Hodel v. Virginia Surface Mining

& Reclamation Ass'n, 452 U.S. 264, 297 n.40 (1981). Thus, the Authority may

constitutionally take property as long as it provides adequate

compensation.



[52] Plaintiffs claim that the Act violates the Texas takings clause in two

ways. First, Plaintiffs argue that certain provisions of the Act will

immediately operate upon the Act's effective date to result in a taking.

Second, Plaintiffs argue that language of the Act requires the Authority to

apply the Act in a manner that is unconstitutional. Each of these arguments

will be examined in turn.



A



[53] Plaintiffs allege that two provisions of the Act will, immediately

upon the effective date of the Act, operate to deprive them of their

property without just compensation. They maintain that the Act's

requirement that declarations of historical use be filed by March 1, 1994

will require all existing users to immediately cease withdrawing water once

the Act goes into effect because that filing deadline has already passed

and compliance with the deadline is now impossible. Additionally,

Plaintiffs believe that permits issued by the Authority will not be

transferable, thus depriving them of an important property right.



[54] 1 The Act requires existing users to file a declaration of historical

use with the Authority by March 1, 1994. See Act of May 30, 1993, supra,

Section(s) 1.16. Plaintiffs claim that this provision establishes an

impossible condition because the March 1, 1994 deadline has already passed.

The Authority was not operating on March 1, 1994, and it is still not

operating today because of the delays in the implementation of the Act

arising from the preclearance problem and this litigation. Plaintiffs

maintain that the passed deadline precludes them from withdrawing any water

upon the Act's eventual effective date.



[55] The State urges that we should interpret the March 1, 1994 date as

directory rather than mandatory. The State maintains that we should

consider the intent of the Legislature and construe this date to merely

require that the declarations be filed with the Authority six months after

the eventual effective date of the statute. We agree with the State.



[56] The Act originally was to become effective on September 1, 1993. Six

months later, on March 1, 1994, declarations of historical use were to be

filed with the Authority. The Legislature obviously did not foresee the

delays that would preclude the Act from taking effect in 1993. If it had,

the Legislature could have simply stated that declarations of historical

use had to be filed six months after the effective date of the Act. We

believe that the Legislature intended such a result. A contrary conclusion

would allow litigants to forever frustrate legislation merely by obtaining

a trial court ruling that temporarily stays the effectiveness of a new law.



[57] Legislative intent supports our conclusion. To determine legislative

intent, we examine the old law, the evil to be corrected, and the object to

be obtained. Crimmins v. Lowry, 691 S.W.2d 582, 584 (Tex. 1985); see also

Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994). The

Edwards Aquifer Act was intended to replace local regulation of the Edwards

Aquifer by creating a regional authority possessing the power to manage and

regulate groundwater withdrawals. Act of May 30, 1993, supra, Section(s)

1.06, 1.14. Because the Act provides for permits to be granted to existing

users before any provision is made for future users, the Legislature

obviously intended that existing users would have preference over future

users. Id. Section(s) 1.16, 1.18. To implement this intent, the Legislature

provided existing users the opportunity to file their declarations of

historical use with the Authority after the effective date of the Act but

before the allocation of water to other potential users. A contrary

conclusion would require the fallacious reasoning that the Legislature

intended the provisions favoring existing users to be subject to an

impossible condition in the event of a delay in implementing the Act.

Courts should not read a statute to create such an absurd result. McKinney

v. Blankenship, 282 S.W.2d 691, 698 (Tex. 1955).



[58] We also disagree with Plaintiffs' argument that the Legislature's

failure to amend the March 1, 1994 deadline in the 1995 Act evinces an

intent to subject the existing-user provisions to an impossible condition.

Even the State concedes that without some provision protecting existing

users from a complete shutdown of their wells, this Act would not survive

constitutional scrutiny under the takings clause. It is nonsensical to

argue that the Legislature, in taking the trouble in 1995 to amend the Act

to satisfy the Voting Rights Act concerns of the Justice Department,

intended that the existing-user provision would be subject to an impossible

condition that would render the entire Act unconstitutional and void.



[59] An analysis of the constitutionality of a statute begins with a

presumption of validity. HL Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex.

1994); Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex.

1985); Texas State Bd. of Barber Examiners v. Beaumont Barber College,

Inc., 454 S.W.2d 729, 732 (Tex. 1970). When possible, we are to interpret

legislative enactments in a manner to avoid constitutional infirmities. See

Texas State Bd. of Barber Examiners, 454 S.W.2d at 732; Smith v. Patterson,

242 S.W. 749, 750 (Tex. 1922). We must resolve any ambiguities in the Act

mindful of our obligation to reject interpretations which defeat the

purpose of the legislation as long as another reasonable interpretation

exists. Citizens Bank v. First State Bank, 580 S.W.2d 344, 348 (Tex. 1979).





[60] This Court has recognized that "[a] too literal construction of a

statute, which would prevent the enforcement of it according to its true

intent, should be avoided." State v. Dyer, 200 S.W.2d 813, 815 (Tex. 1947).

A court must attempt to ascertain what the Legislature intended and

interpret the statute accordingly. Union Bankers Ins. Co., 889 S.W.2d at

280. In keeping with this principle, statutory language that appears to

impose a mandatory duty may be interpreted to be only directory when

necessary to fulfill the legislative intent of the statute. Chisolm v.

Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956)(statute requiring filing of

claim against state within thirty days held directory, not mandatory);

Thomas v. Groebl, 212 S.W.2d 625, 630 (Tex. 1948)(provision requiring

annual renewal of certificate of exemption from poll tax held directory).



[61] In Stephenson v. Stephenson, 22 S.W. 150 (Tex. 1893), we held that a

statute requiring transcripts to be filed with the newly created courts of

civil appeals within ninety days after the notice of appeal did not apply

to certain litigants. The litigant in Stephenson had tendered his

transcript more than ninety days after the notice of appeal because the

courts of civil appeals had not yet become operational. This Court, relying

on legislative intent, interpreted the Act to allow the transcript to be

filed ninety days from the time the appellate court clerk began operations.

Id. at 151.



[62] Similarly, we hold today that the March 1, 1994 deadline contained in

the Act was intended to provide existing users six months to file their

declarations of historical use. In accordance with the legislative intent,

we interpret the Act as requiring declarations of historical use to be

filed six months after the Authority becomes effective.



[63] 2 Plaintiffs also allege that the Act is an unconstitutional taking

because the "use" of water runs with the landowner personally, rather than

with the land. As such, they fear a landowner would be unable to transfer

the permit to a future owner of that property. Additionally, Plaintiffs are

concerned that the Act would prevent a landowner seeking a permit from

relying upon previous owners' historical water usage when determining the

amount of water withdrawal allowed by the Authority. As a result, the Act

on its face would reduce the value of a landowners' property by diminishing

the amount of water withdrawal and restricting transferability of the

permit.



[64] Section 1.15 of the Act prevents a "person" from withdrawing water

without a permit. See Act of May 30, 1993, supra, Section(s) 1.15. Permits

will be available to "existing users" who file a timely declaration of

historical use of water withdrawn from the aquifer. Id. Section(s) 1.16.

The permits will specify the maximum rate and total volume that the "water

user" may withdraw in a calendar year. Id. Section(s) 1.15.



[65] The Act does not define "user" and does not specify whether the use of

water runs with the land. It is therefore unclear whether a "user" includes

prior and future owners of the land, or whether a "user" is only the

landowner in possession of the land at the time a permit is requested. The

State urges that the more reasonable interpretation is that a "user" would

include prior and future landowners. Under this interpretation, historical

use could be established through previous landowners' withdrawals from the

well, and permits could be transferred to future owners of the land.



[66] We agree with the State's interpretation that the term "user" includes

at least prior and future landowners. *fn3 Accordingly, we conclude that

the "use" of water runs with the land and, as such, does not constitute a

taking of the landowners' property.



B



[67] Plaintiffs also contend that an unconstitutional taking of private

property will occur if a landowner is denied a permit to drill a water

well. Landowners who may be denied a water permit include those who own

land without historical use prior to June 1, 1993. The State admits that

some landowners may potentially be denied permits, but argues that such

denial is not a taking. However, we need not resolve this argument to

determine whether the Act is constitutional on its face.



[68] Assuming without deciding that Plaintiffs possess a vested property

right in the water beneath their land, the State still can take the

property for a public use as long as adequate compensation is provided. The

Act expressly provides that the Legislature "intends that just compensation

be paid if implementation of [the Act] causes a taking of private property

or the impairment of a contract in contravention of the Texas or federal

constitution." Act of May 30, 1993, supra, Section(s) 1.07. Based on this

provision in the Act, we must assume that the Legislature intends to

compensate Plaintiffs for any taking that occurs. As long as compensation

is provided, the Act does not violate article I, section 17.



[69] Plaintiffs claim that the Authority will not possess sufficient funds

to compensate them for the taking of their property. This argument is

entirely speculative. If an individual landowner's property is taken and no

compensation is provided, that landowner may then bring a challenge to the

Act as it is applied or pursue other possible remedies. It will be the

landowner's burden to establish a vested property right in the underground

water which the Authority eviscerated. The landowner will also have to

prove damages and the failure to receive adequate compensation from the

State. If a landowner establishes such a case, then the Act may be held

unconstitutional "as applied." *fn4



[70] At this time, any violation of article I, section 17 is hypothetical.

We therefore conclude that Plaintiffs cannot meet their burden in this

facial challenge of establishing that, under all circumstances, the Act

will deprive them of their property in violation of the Texas Constitution.



VI



[71] Plaintiffs also assert that the Act violates the equal protection

clause of the Texas Constitution. Plaintiffs first allege that the Act is

unconstitutional because it provides preferential allocation of water to

existing users who withdrew water on or before May 31, 1993. Plaintiffs

urge that this preference discriminates against landowners who did not

withdraw water before that date.



[72] The Texas Constitution provides the following equal protection

guarantee:



[73] All free men, when they form a social compact, have equal rights, and

no man, or set of men, is entitled to exclusive separate public emoluments,

or privileges, but in consideration of public services.



[74] Tex. Const. art. I, Section(s) 3. Generally, a classification under an

equal protection challenge must only be rationally related to a legitimate

state purpose. Richards v. LULAC, 868 S.W.2d 306, 310-11 (Tex. 1993);

Stamos, 695 S.W.2d at 559. However, classifications impinging upon the

exercise of a fundamental right or distinguishing between individuals on a

suspect basis, such as race or national origin, are subject to strict

scrutiny, requiring that the classification be narrowly tailored to serve a

compelling government interest. Richards, 868 S.W.2d at 311.



[75] Plaintiffs make no claim that the Act's classifications distinguish

between individuals on a suspect basis. Although they allege that the

legislation is subject to strict scrutiny because it impinges upon their

fundamental property rights, they cite no authority to support this

proposition.



[76] The United States Supreme Court generally uses the rational basis test

for equal protection challenges to economic or property regulation. See

City of New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976). See also

generally Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Day-Brite Lighting,

Inc. v. Missouri, 342 U.S. 421, 424 (1952)(regulations causing financial

burdens for which no compensation is paid are not constitutionally infirm

as long as there is a rational basis). In Dukes, the United States Supreme

Court applied a rational basis test to an ordinance that prohibited street

vendors from operating in the French Quarter except for the two vendors who

had operated there for more than eight years. This New Orleans ordinance,

like the Edwards Aquifer Act, classified economic rights on the basis of

the past use of the rights.



[77] Similarly, Texas cases have applied a rational basis test to uphold

the constitutionality of zoning ordinances and other regulations that

affect economic rights. Lombardo v. City of Dallas, 73 S.W.2d 475, 482- 85

(Tex. 1934); McEachern v. Town of Highland Park, 73 S.W.2d 487, 487 (Tex.

1934); see also Lens Express, Inc. v. Ewald, 907 S.W.2d 64, 68-69 (Tex.

App.--Austin 1995, no writ); Town of Sunnyvale v. Mayhew, 905 S.W.2d 234,

266 (Tex. App.--Dallas 1994, writ requested). In accordance with these

precedents, we conclude that the rational basis test applies to Plaintiffs'

equal protection claims.



[78] Under the rational basis test, the Act is valid under section 3 of the

Texas Bill of Rights as long as it is rationally related to a legitimate

state purpose. See Garcia, 893 S.W.2d at 524. Plaintiffs argue that the

cut-off date of May 31, 1993 that distinguishes between existing users and

new users is arbitrary and irrational and not rationally related to a

legitimate state purpose. We disagree.



[79] One of the objectives of the Act is to control increased demand on the

aquifer while protecting historical users of aquifer water. The Act

attempts to accomplish this goal by allowing "existing users" the first

opportunity to withdraw water. The May 31, 1993 date utilized by the

Legislature for historical use is rational and is reasonably related to the

Legislature's goal of precluding increased demand in the aquifer. The

Legislature passed the Act on May 30, 1993, one day before the historic use

cut-off. This allowed all existing wells to continue pumping while

precluding landowners from rushing to establish preferred rights through

future drilling after the passage of the Act. This protected both existing

users and the aquifer. Absent a cut-off date of May 31, 1993, or some

earlier date, the purpose of regulating water usage could easily be

eviscerated by innumerable new wells.



[80] Plaintiffs also argue that the Act violates the equal protection

clause because the Legislature did not include Kinney County within the

boundaries of the Authority. A similar challenge was rejected in

Beckendorff, 558 S.W.2d at 81. The Beckendorff court held that there was no

constitutional requirement for the legislatively created subsidence

district to extend beyond Harris and Galveston counties, although

legitimate objects of regulation existed outside those counties. Id. The

equal protection clause, the court reasoned, "relates to persons as such,

and not to areas." Id.; see also Richards, 868 S.W.2d at 311-12

(geographical equality not required under the equal protection clause).

This Court, although refusing the Beckendorff writ of error with the

notation "no reversible error," expressly approved of the court of appeals'

reasoning. 563 S.W.2d at 240. In fact, we specifically stated that there

was "no denial of the equal protection of the law in either the geographic

scope of the [subsidence district] or in its operation." Id. Similarly, the

fact that this Act may be underinclusive by not including Kinney County

within the territorial limits of the Authority is not a violation of the

equal protection clause. See also generally Railway Express v. New York,

336 U.S. 106, 110 (1949)("It is no requirement of equal protection that all

evils of the same genus are to be eradicated or none at all."). We

therefore conclude that Plaintiffs' equal protection challenges are without

merit.



VII



[81] Plaintiffs also assert that the Act violates the Texas due course of

law provision. This clause provides:



[82] No citizen of this State shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disfranchised, except by the due

course of the law of the land.



[83] Tex. Const. art. I, Section(s) 19. This guarantee, similar to the

federal due process clause, contains both a procedural component and a

substantive component. Garcia, 893 S.W.2d at 525; Eggemeyer v. Eggemeyer,

554 S.W.2d 137, 140 (Tex. 1977). Plaintiffs contend that the Act violates

both components.



[84] First, Plaintiffs argue that the Act will deprive them of their

property without procedural due course of law. They allege that the

Authority will make decisions regarding their property that will not be

subject to any type of judicial review. We disagree with Plaintiffs' claim

that the Act does not provide for judicial review.



[85] The Act provides that the Authority "is subject . . . to the

Administrative Procedure and Texas Register Act." Act of May 30, 1993,

supra, at Section(s) 1.11(h). This language has meaning only if it requires

the Authority to abide by the provisions of the Administrative Procedure

and Texas Register Act. That act provides for contested case hearings and

judicial review of the findings from such hearings under the substantial

evidence rule. Tex. Gov't Code Section(s) 2001.171-.178. Moreover, the

State concedes that the Authority will hold contested case hearings and its

determinations will be subject to judicial review. Under these

circumstances, we conclude that Plaintiffs have not met their burden to

establish that the Act will always operate to deprive them of their

property without due course of law.



[86] Second, Plaintiffs urge that the Act violates the substantive

component of the due course of law provision. Plaintiffs claim that the Act

has no rational basis and is an overbroad application of the police power.

We disagree.



[87] Water regulation is essentially a legislative function. The

Conservation Amendment recognizes that preserving and conserving natural

resources are public rights and duties. Tex. Const. art. XVI, Section(s)

59(a). The Edwards Aquifer Act furthers the goals of the Conservation

Amendment by regulating the Edwards Aquifer, a vital natural resource which

is the primary source of water in south central Texas. The specific

provisions of the Act, such as the grandfathering of existing users, the

caps on water withdrawals, and the regional powers of the Authority, are

all rationally related to legitimate state purposes in managing and

regulating this vital resource. The Act is sufficiently rational to meet

constitutional due course requirements. We therefore conclude that

Plaintiffs have not met their burden to establish that the Act is

unconstitutional under the substantive component of the due course of law

clause.



VIII



[88] Plaintiffs also challenge the Act under article I, section 16 of the

Texas Constitution, which provides:



[89] No bill of attainder, ex post facto law, retroactive law, or any law

impairing the obligation of contracts, shall be made.



[90] Tex. Const. art. I, Section(s) 16. Plaintiffs claim the Act violates

this provision because it is an ex post facto law, a retroactive law, and

it impairs the obligation of contracts. We will examine each of these

claims in turn.



[91] Plaintiffs' first argument, that the Act is an ex post facto law,

misses the mark. It is well established that the prohibition against ex

post facto laws applies only to retroactive criminal or penal laws. Bender

v. Crawford, 33 Tex. 745, 751 (1871); see also De Cordova v. Galveston, 4

Tex. 470, 473 (1849); Holt v. State, 2 Tex. 363, 364 (1847). Because the

Act is not a retroactive criminal or penal law, the Act is not

unconstitutional as an ex post facto law.



[92] Separately, Plaintiffs urge that the Act is a retroactive law in

violation of the Texas Constitution. Under our state charter, retroactive

laws affecting vested rights that are legally recognized or secured are

invalid. See Texas Water Rights Comm'n v. Wright, 464 S.W.2d 642, 648-49

(Tex. 1971). Plaintiffs maintain that the Act is retroactive because the

amount of water a landowner is allowed to withdraw is determined from

action or inaction taken before the passage, signing, or effective date of

the Act. *fn5



[93] Plaintiffs are correct that the Act may have retroactive effects. This

Court recognized in Wright that a statute which allows an agency to take

into consideration conduct occurring before the effective date of the

statute possesses a retroactive effect. 464 S.W.2d at 648. The Edwards

Aquifer Act, similar to the statute in Wright that was held to be

retroactive, takes into account the landowner's use of water in the years

preceding the effective date of the legislation in determining future

entitlement to water. However, "[m]ere retroactivity is not sufficient to

invalidate a statute." Id. A valid exercise of the police power by the

Legislature to safeguard the public safety and welfare can prevail over a

finding that a law is unconstitutionally retroactive. See Texas State

Teachers Ass'n v. State, 711 S.W.2d 421, 424 (Tex. App.--Austin 1986, writ

ref'd n.r.e.)(the rule against retroactive laws is not absolute and should

yield to a state's right to safeguard the public safety and welfare);

Ismail v. Ismail, 702 S.W.2d 216, 222 (Tex. App.--Houston [1st Dist.] 1985,

writ ref'd n.r.e.)("overriding public interest" justified the retroactive

application of a special class of marital property); Kilpatrick v. State

Bd. of Registration for Professional Eng'rs, 610 S.W.2d 867, 871 (Tex. Civ.

App.--Fort Worth 1980, writ ref'd n.r.e.)(concern for public safety and

welfare can override retroactive law prohibition); State Bd. of

Registration for Professional Eng'rs v. Wichita Eng'g Co., 504 S.W.2d 606,

608 (Tex. Civ. App.--Fort Worth 1973, writ ref'd n.r.e.)(same); Caruthers

v. Board of Adjustment, 290 S.W.2d 340, 345 (Tex. Civ. App.-- Galveston

1956, no writ)(zoning ordinance was not unconstitutionally retroactive

because it was justified by the police power). See also generally Texas

State Bd. of Barber Examiners, 454 S.W.2d at 732 (barber college

challenging statute as a retroactive law merely had right of protection

from unreasonable exercise of police power). We agree with the reasoning of

these decisions.



[94] The Act provides that the Authority is "required for the effective

control of the [aquifer] to protect terrestrial and aquatic life, domestic

and municipal water supplies, the operation of existing industries, and the

economic development of the state." Act of May 30, 1993, supra, Section(s)

1.01. The Legislature also found that the aquifer was "vital to the general

economy and welfare of this state." Id. 1.06(a). Based on these legislative

findings, we conclude that the Act is necessary to safeguard the public

welfare of the citizens of this state. Accordingly, the retroactive effect

of the statute does not render it unconstitutional.



[95] Plaintiffs argue, however, that our holding in Wright that the statute

at issue was constitutional was premised on the fact that the statute

provided the affected parties a reasonable time to protect their interests.

Wright, 464 S.W.2d at 648. Plaintiffs point out that the Edwards Aquifer

Act, in contrast, does not allow them a reasonable time to protect their

interests since the historical use period ended the day after the

Legislature passed the Act. While Wright was indeed based on the provisions

in the statute providing time for the landowners to protect their

interests, it does not address the issue of whether the prohibition against

retroactive laws precludes the Legislature from enacting statutes that are

necessary to safeguard the public safety and welfare. We conclude that

article I, section 16 does not absolutely bar the Legislature from enacting

such statutes. Wright therefore does not lead to the conclusion that the

Act is an unconstitutional retroactive law.



[96] Finally, Plaintiffs maintain that the Act unconstitutionally impairs

the obligation of contracts under article I, section 16. This Court has not

considered the scope of the contract clause contained in the Texas

Constitution since our 1934 decision in Travelers' Ins. Co. v. Marshall, 76

S.W.2d 1007 (Tex. 1934). In Travelers', we determined that the police power

did not justify a moratorium statute enacted during the Depression that

precluded note holders from foreclosing on real property in accordance with

the terms of the note when such a foreclosure would be inequitable to the

debtor. Id. at 1010-11. After a lengthy historical analysis, we held that

the very purpose of the clause prohibiting the impairment of contracts was

to void such moratory legislation regardless of the exigencies of the time.

Id. at 1023-25.



[97] Two years later, the United States Supreme Court considered the Texas

contract clause and concluded that Travelers' only applied to statutes

specifically directed against the terms of a contract; therefore, police

power regulations dealing with physical things such as land or natural

resources could have incidental effects on contracts if the power was

exercised in the interest of the public welfare. See Henderson Co. v.

Thompson, 300 U.S. 258, 266 (1937). While the Supreme Court's decision in

Henderson was not controlling on Texas courts, several courts of appeals

have noted its holding in concluding that an exercise of the police power

necessary to safeguard the public safety and welfare can justify the

impairment of contractual rights and obligations. See Texas State Teachers

Ass'n, 711 S.W.2d at 424-25 & n.2; Dovalina v. Albert, 409 S.W.2d 616, 619

(Tex. Civ. App.--Amarillo 1966, writ ref'd n.r.e.); Biddle v. Board of

Adjustment, 316 S.W.2d 437, 440-41 (Tex. Civ. App.--Houston 1958, writ

ref'd n.r.e.).



[98] Other Texas cases, including an older decision from this Court, have

likewise concluded that the contract clause may yield to statutes which are

necessary to safeguard the public safety and welfare. See State v.

Delesdenier, 7 Tex. 76, 99-100 (1851); Texas Water Comm'n v. City of Fort

Worth, 875 S.W.2d 332, 335 (Tex. App.--Austin 1994, writ denied);

Kilpatrick, 610 S.W.2d at 871; Andrada v. City of San Antonio, 555 S.W.2d

488, 491 (Tex. Civ. App.--San Antonio 1977, writ dism'd w.o.j.); Wichita

Eng'g Co., 504 S.W.2d at 608. Accordingly, we determine that the Act is not

invalid under the contract clause because it is a valid exercise of the

police power necessary to safeguard the public safety and welfare. The Act

is therefore not subject to any of Plaintiffs' facial attacks under article

I, section 16 of the Texas Constitution.



IX



[99] Plaintiffs next challenge the Act on separation of powers grounds.

Article II, section 1 of the Texas Constitution provides: no person, or

collection of persons, being one of [the three governmental branches],

shall exercise any power properly attached to either of the others, except

in the instances herein expressly permitted. Tex. Const. art. II,

Section(s) 1. Plaintiffs allege that, through the permitting process, the

Authority will have to determine the nature and extent of landowners'

property rights to water beneath their land. They maintain that this

process is a judicial function that cannot be performed by an agency of the

executive branch.



[100] Typically, the power to determine controverted rights to property by

means of binding judgment is vested in the judicial branch. Board of Water

Eng'rs v. McKnight, 229 S.W. 301, 304 (Tex. 1921); see also State v.

Flag-Redfern Oil Co., 852 S.W.2d 480, 484 (Tex. 1993). Nevertheless, this

principle does not bar administrative agencies of the executive branch of

government from working in tandem with the judicial branch to administer

justice under appropriate circumstances. Administrative fact findings are a

necessary aspect of administrative discretion and are not an exclusively

judicial function. Corzelius v. Harrell, 186 S.W.2d 961, 967-68 (Tex.

1945). In Flag-Redfern, we acknowledged that "[a]n administrative agency is

not a `court' and its contested case proceedings are not lawsuits, . . .

Agency adjudications do not reflect an exercise of the judicial power

assigned to the `courts' of the State . . . ; they are simply executive

measures taken in the administration of statutory provisions." 852 S.W.2d

at 485 n.7.



[101] We conclude that the Act does not violate separation of powers

because the well-permitting process will encompass only administrative

contested proceedings, not binding judicial determinations. The permitting

decisions will bear upon the use of groundwater, but will not constitute an

adjudication of title to property. There is simply nothing in the Act

suggesting that the Authority will adjudicate property rights. The

decisions that the Authority will have to make before issuing a permit,

such as whether an applicant is a historical user and the amount of past

use, will be fact findings, not determinations of controverted rights to

property. These decisions are similar to the fact findings made by the

Railroad Commission to adjust correlative rights. We held in Corzelius that

such findings do not violate separation of powers. See 186 S.W.2d at 963.

Similarly, we find that the Edwards Aquifer Act does not violate separation

of powers as an infringement upon the judicial power.



[102] This conclusion is buttressed by the fact that the Authority's

determinations will be subject to judicial review under the Administrative

Procedure and Texas Register Act. See Corzelius, 186 S.W.2d at 963

(considering availability of judicial review in holding that Railroad

Commission orders adjusting correlative rights did not violate separation

of powers). Under such circumstances, we cannot agree with Plaintiffs'

argument that the permits are binding judicial determinations by an agency

in violation of the separation of powers doctrine.



X



[103] Separately, Plaintiffs assert a related challenge that the Edwards

Aquifer Act violates the open courts, right to trial by jury, and

separation of powers provisions of the Texas Constitution to the extent

that the Act does not provide for court adjudication of permitting

decisions or other matters decided by the Authority. See Tex. Const. art.

I, Section(s) 13 & 15; art. II, Section(s) 1; art. V, Section(s) 10.



A



[104] As discussed in the preceding section, the permit process of the

Authority is not a binding judicial determination. Instead, the permit

process is clearly within the purview of agency fact findings. These fact

findings are subject to judicial review under the provisions of the

Administrative Procedure and Texas Register Act. We therefore conclude that

the permitting process does not violate separation of powers.



B



[105] The Texas Constitution provides two guarantees of the right to trial

by jury:



[106] The right to trial by jury shall remain inviolate. The Legislature

shall pass such laws as may be needed to regulate the same, and to maintain

its purity and efficiency. . . .



[107] Tex. Const. art. I, Section(s) 15.



[108] In the trial of all causes in the District Courts, the plaintiff or

defendant shall, upon application made in open court, have the right of

trial by jury. . . .



[109] Tex. Const. art. V, Section(s) 10.



[110] Article I, section 15 provides a right to trial by jury for those

actions, or analogous actions, which were tried by jury when the Texas

Constitution was adopted in 1876. Garcia, 893 S.W.2d at 526; Texas Ass'n of

Business v. Air Control Bd., 852 S.W.2d 440, 450-51 (Tex. 1993). It

therefore only applies if, in 1876, a jury would have been allowed to try

the action or an analogous action. In Texas Ass'n of Business, we examined

the article I, section 15 right to jury trial and concluded that agency

assessments of environmental penalties were neither actions tried by a jury

in 1876 nor actions analogous to matters for which a jury trial was allowed

at that time. 852 S.W.2d at 451. We based our holding on the emergence of

the administrative branch to regulate the environment, and our conclusion

was that no such governmental scheme existed to balance economic concerns

with environmental concerns in 1876. Id. Similarly, we conclude that there

was no governmental scheme in 1876 to regulate natural resources such as

the Edwards Aquifer. We therefore hold that no right to jury trial under

article I, section 15 of the Texas Constitution attaches to appeals from

the permit adjudications under the Act since these are not actions, or

analogous actions, which were tried to a jury at the time the Texas

Constitution was adopted.



[111] We next consider the right to trial by jury protected by article V,

section 10 of the Texas Constitution. This provision protects the right to

have a jury resolve fact questions in all "causes" brought in the district

courts. See Garcia, 893 S.W.2d at 527; State v. Credit Bureau, 530 S.W.2d

288, 292-93 (Tex. 1975). Appeals from administrative decisions, however,

are not "causes" within the meaning of this provision. Garcia, 893 S.W.2d

at 526; Credit Bureau, 530 S.W.2d at 293. Thus, no right to jury trial

attaches to appeals from administrative decisions, and the Act does not

violate article V, section 10 of the Texas Constitution.



C



[112] The Texas Constitution provides the following "open courts"

guarantee:



[113] All courts shall be open, and every person for an injury done him, in

his lands, goods, person or reputation, shall have remedy by due course of

law.



[114] Tex. Const. art. I, Section(s) 13. This provision includes three

separate constitutional rights: (1) courts must actually be available and

operational; (2) the Legislature cannot impede access to the courts through

unreasonable financial barriers; and (3) meaningful remedies must be

afforded, "so that the legislature may not abrogate the right to assert a

well-established common law cause of action unless the reason for its

action outweighs the litigants' constitutional right of redress." Garcia,

893 S.W.2d at 520; Trinity River Auth., 889 S.W.2d at 261; Texas Ass'n of

Business, 852 S.W.2d at 448.



[115] We cannot discern that any of the open court guarantees are even

implicated by the permitting process of the Authority. The courts are

available and operational to Plaintiffs after an appeal from a decision of

the Authority; the Legislature has not provided any unreasonable financial

barrier to impede Plaintiffs' access to a permit decision or an appeal of

that decision; and the Act has not abrogated any right to assert a

well-established common law cause of action. We conclude that the

permitting process contained in the Edwards Aquifer Act does not violate

the open courts provision of the Texas Constitution.



XI



[116] Plaintiffs' final constitutional challenge is that the Act violates

the open courts, right to trial by jury, and separation of powers

provisions of the Texas Constitution to the extent that the Act would

require a person desiring to appeal the imposition of an administrative

penalty to pay the penalty prior to taking the appeal. See Tex. Const. art.

I, Section(s) 13 & 15; art. II, Section(s) 1; art. V, Section(s) 10. We

have held that provisions in statutes requiring prepayment of

administrative penalties as a prerequisite to judicial review are

unconstitutional. FlagRedfern, 852 S.W.2d at 485; Texas Ass'n of Business,

852 S.W.2d at 449- 450. However, we expressly recognized in Texas Ass'n of

Business that an administrative agency can be constitutionally granted the

right to collect assessed penalties, as long as the payment of the

penalties is not tied to the right to judicial review. 852 S.W.2d at

449-50; see also Central Appraisal Dist. of Rockwall County v. Lall, __

S.W.2d __, __ (Tex. 1996). In other words, only when the payment of the

administrative penalty is a prerequisite to judicial review does the

payment run afoul of the constitution.



[117] The Edwards Aquifer Act, however, does not require the prepayment of

any penalty prior to seeking judicial review. Section 1.37(j)(3) of the Act

expressly provides that a person may file a petition for judicial review

without paying the amount of the penalty. Act of May 30, 1993, supra,

Section(s) 1.37(j)(3). If the penalty is not paid or its enforcement stayed

by filing a pauper's oath or a supersedeas bond, the State may attempt to

collect the penalty, but such event does not affect the person's right to

judicial review. Id. Section(s) 1.37(k) & (m). Thus, the Act does not

unconstitutionally require prepayment of a penalty prior to seeking

judicial review.



XII



[118] Our final consideration is the trial court's award of attorney's fees

to Plaintiffs. Plaintiffs brought this lawsuit pursuant to the Texas

Uniform Declaratory Judgments Act. This Act provides that the trial court

"may award costs and reasonable and necessary attorney's fees as are

equitable and just." Tex. Civ. Prac. & Rem. Code Section(s) 37.009. The

granting or denial of attorney's fees in a declaratory judgment action is

within the trial court's discretion. Oake v. Collin County, 692 S.W.2d 454,

455 (Tex. 1985).



[119] The district court granted Plaintiffs attorney's fees based on its

finding that Plaintiffs had "substantially prevailed" in the litigation.

Because this finding may no longer be valid, the State claims that the

award of attorney's fees must be reversed. Moreover, the State argues that

it should now be awarded attorney's fees as a prevailing party in this

litigation.



[120] Despite these arguments, the award of attorney's fees in declaratory

judgment actions is clearly within the trial court's discretion and is not

dependent on a finding that a party "substantially prevailed." We will

therefore remand this cause to the district court for it to consider and

exercise its discretion on the amount of attorney's fees, if any, which

should be awarded to the parties in this case. *fn6



XIII



[121] In conclusion, we uphold the validity of the Act against the facial

constitutional challenges brought by Plaintiffs. We reverse the district

court's judgment and render judgment in favor of the State. The injunction

ordered by the district court is dissolved. We remand the cause to the

district court to exercise its discretion as to whether attorney's fees

should be awarded to either party.



[122] Greg Abbott Justice



[123] OPINION DELIVERED: June 28, 1996



***** BEGIN FOOTNOTE(S) HERE *****



[124] *fn1 An acre-foot is the amount of water that would cover an acre of

land to one foot, approximately 325,850 gallons. The aquifer-wide cap of

450,000 acre-feet converts to approximately 147 billion gallons of water.



[125] *fn2 An existing user can avoid this downward adjustment under two

circumstances. First, an existing user who has operated a well for three or

more years during the historical period shall receive a permit for at least

the average amount of water withdrawn annually during the historical

period. Id. Section(s) 1.16. Second, an existing irrigation user shall

receive a permit for not less than two acre-feet a year (approximately

650,000 gallons) for each acre of land the user actually irrigated in any

one calendar year during the historical period. Id.



[126] *fn3 This holding does not necessarily limit the definition of

"users" to individuals owning land. Under some circumstances, an entity

that does not own the land or the well may be considered a "user" if the

entity had some right to withdraw water.



[127] *fn4 In a related argument, Plaintiffs urge that compensation is

required in advance of a taking. However, they do not provide any authority

to support this argument, and we have found none. We therefore reject the

premise that the Texas Constitution requires compensation in advance of a

taking.



[128] *fn5 Plaintiffs also urge that the Act is retroactive due to the

March 1, 1994 deadline for filing declarations of historical use. However,

our holding that this deadline is to be extended six months from when the

Authority becomes effective moots this argument.



[129] *fn6 The Edwards Underground Water District also brought a direct

appeal to this Court urging that the district court abused its discretion

by requiring it to pay Plaintiffs' attorney's fees. Because we are

remanding the issue of attorney's fees, we need not address this argument.