The Integrity Group, Inc. v. Medina County Commissioners Court--Appeal from 38th Judicial District Court of Medina County

CONCURRING OPINION

No. 04-03-00413-CV
THE INTEGRITY GROUP, INC.,
Appellant
v.
MEDINA COUNTY COMMISSIONERS COURT,
Appellee
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 95-06-13409-CV
Honorable Antonio G. Cantu, (1) Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Concurring Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 20, 2004

I concur with the court's judgment. I write separately, however, to address a contention presented by the Medina County Commissioners Court that is not directly answered in the majority opinion.

The Commissioners Court contends that the cases cited by Integrity (and relied upon by the majority) are not controlling because the cases do not address a situation in which the county has been given additional statutory authority to regulate plats beyond the basic regulations specified in Tex. Loc. Gov't Code Ann. 232.001 - .0032 (Vernon Supp. 2004). The Commissioners Court claims that as the authorized agent of the Texas Commission on Environmental Quality, it can impose a one-acre minimum lot size requirement when use of on-site sewage disposal facilities over the Edwards Aquifer Recharge Zone is contemplated. This authority is allegedly derived from Chapter 366 of the Texas Health and Safety Code and corresponding rules in the Texas Administrative Code. See Tex. Health & Safety Code Ann. 366.001 - .0924 (Vernon 2001 & Supp. 2004); 30 Tex. Admin. Code 285. Indeed, section 285.40 of the Administrative Code provides that "[e]ach lot or tract of land on the recharge zone on which OSSFs [on-site sewage facilities] are to be located shall have an area of at least one acre . . . per single family dwelling." 30 Tex. Admin. Code 285.40(c)(1).

Recognizing that the Local Government Code does not contain the one-acre minimum size requirement, the Commissioners Court argues that rules of statutory construction should be employed to harmonize applicable provisions of the Local Government Code with the Health and Safety Code. When the provisions are harmonized, the Commissioners Court contends it can reject Integrity's plat because: (1) the land in question is over the Edwards Aquifer Recharge Zone; (2) use of OSSFs is contemplated; and (3) the plat does not provide for one-acre lots. The error in the Commissioners Court argument, however, is that the statutes relied upon by the Commissioners Court for authority to impose a one-acre minimum lot size do not pertain to the limited issue before the court at this time: the right of the Commissioners Court to accept or reject the tendered plat. The Health and Safety Code and Administrative Code provisions relied upon by the Commissioners Court concern the permitting and construction of OSSFs. On the other hand, the Local Government Code provisions at issue concern a county's authority to accept and file a tendered plat. There is no need to employ rules of statutory construction to harmonize the statutes because we are not faced with conflicting statutory provisions.

The Commissioners Court has a ministerial duty to approve a plat that complies with the provisions of Chapter 232 of the Local Government Code. See Elgin Bank v. Travis County, 906 S.W.2d 120, 122-23 (Tex. App.--Austin 1995, writ denied). While at first blush it may seem more efficient to submit plats only if they can meet other requirements, such as the OSSF requirements, the two processes of accepting a plat and permitting an OSSF are separate. That the two processes remain separate does not diminish the Commissioners Court's role as an agent for the Commission on Environmental Quality. Whether the Commissioners Court, as an agent for the Commission on Environmental Quality, can ultimately regulate minimum lot sizes is a question for another day.

Catherine Stone, Justice

1. Sitting by assignment.