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Legislative Update: HPWD offers testimony regarding legislation, April 18, 2019

By Victoria Whitehead, HPWD General Counsel

Attorney’s Fees Legislation

Under current statute, a judge is required to award attorney’s fees to a groundwater conservation district (GCD) when a GCD prevails in litigation.  This stands for both general litigation involving a GCD, as well as GCD enforcement actions.  There are no other provisions under Chapter 36, Texas Water Code, for any other party to  recover their attorney’s fees.  

This month, HPWD offered support for two bills that address this inequity:

House Bill 2125 by Representative Burns removes the court’s requirement to grant attorney’s fees to a GCD, and instead makes the award of attorney’s fees discretionary.  While the original legislation had a cap set at $100,000, the Committee Substitute introduced April 2nd, removes the cap.   HB 2125 does not alter the award of attorney’s fees for enforcement actions. 

Senate Bill 851 by Senator Perry would change the current process to allow the prevailing side to seek attorney’s fees from the court.  It further states that the court may grant reasonable and necessary attorney’s fees in an amount that the court considers is equitable and just, but not to exceed $250,000.  For enforcement actions involving a GCD, SB 851 allows the prevailing side to recover attorney’s fees, but does not include a $250,000 cap.   

While many GCDs in the state do not support these efforts, the HPWD Board of Directors firmly believe this legislation is a good balance for all parties, as it removes some barriers that landowners may encounter when they believe a GCD is not adequately protecting their groundwater.

HPWD provided testimony on SB 851.  The testimony provided by General Counsel Victoria Whitehead can be found at 02:10:50:

Appeals Process Legislation

HPWD offered testimony in opposition to Senator Perry’s Senate Bill 2027.  SB 2027 changes the judicial review process of decisions made by a GCD board from substantial evidence review to trial de novo.

Testimony from HPWD focused on the adequacy of current law for contested matters.  The rights of petitioners are well documented in the existing statute, and also allow for the expertise of the locally elected board members.

Senator Perry concluded the hearing by agreeing to push the matter to an interim discussion rather than pursuing the legislative change. 

The testimony provided by General Counsel Victoria Whitehead can be found at 02:01:00:

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