Received & Filed 9/12/2024 6:46 PM

Gabriel Garcia, District Clerk

Brazos County, Texas
Erika Garcia
Envelope# - 91976763

CAUSE NO. 24-002626-CV-472

_________________

TEXAS A&M UNIVERSITY SYSTEM, § IN THE DISTRICT COURT OF

Plaintiff, §
§
v. §
§
BRAZOS VALLEY GROUNDWATER § BRAZOS COUNTY, TEXAS
CONSERVATION DISTRICT AND ALAN §
DAY, GENERAL MANAGER OF BRAZOS §
VALLEY GROUNDWATER §
CONSERVATION DISTRICT, §
Defendants. § _____ JUDICIAL DISTRICT

PLAINTIFF’S ORIGINAL PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiff Texas A&M University System files this Original Petition for Writ of Mandamus

against Defendants Brazos Valley Groundwater Conservation District and Alan Day, in his

capacity as General Manager of the Brazos Valley Groundwater Conservation District, and in

support thereof would respectfully show the Court as follows.

I. Discovery Control Plan and Claim for Relief

1. Plaintiff intends to conduct discovery under Level 2 of Texas Rule of Civil

Procedure 190.3

2. The relief sought in this case is within the jurisdictional limits of the Court. Plaintiff
seeks only non-monetary relief at this time. Tex. R. Civ. P. 47(c)(5).

II. Parties and Service

3. Plaintiff Texas A&M University System (“Plaintiff” or “TAMUS”) is a system of

higher education and a state agency created by the Texas State Legislature, and maintains its

principal place of business in College Station, Texas.

4. Defendant Brazos Valley Groundwater Conservation District (the “District”) is a

conservation and reclamation district created under and subject to the authority, conditions, and
restrictions of Article XVI, Section 59 of the Texas Constitution and Chapter 8835 of the Special

District Local Laws Code. The District may be served with process by serving its Board President,

Jayson Barfknecht, or General Manager, Alan Day, at 112 West 3rd Street, Hearne, Texas 77859,

or wherever they may be found.

5. Defendant Alan Day, General Manager of the District and a resident of Brazos

County, may be served with process at 112 West 3rd Street, Hearne, Texas 77859, or wherever he

may be found.

III. Jurisdiction and Venue

6. The Court has subject matter jurisdiction over this mandamus proceeding against a

political subdivision of the State and its officials. Tex. Gov’t Code § 24.011.

7. As authorized by Section 36.251(c) of the Water Code, proper venue for TAMUS’s

claims exists in Brazos County because it is a county in which the District, or part of it, is located.

Venue is also proper in Brazos County under Sections 15.002(a)(1) and (2) of the Civil Practice

and Remedies Code because a substantial part of the events or omissions giving rise to the claims

asserted herein occurred in Brazos County, and at least one of the defendants resides in Brazos

County. The Texas A&M University campus and TAMUS’s RELLIS campus are both completely

located in Brazos County, and the harm that they would suffer if the requested relief is not granted

would occur in Brazos County. Further, the Texas Legislature has indicated a preference that venue

for suits involving TAMUS lies in Brazos County. See Tex. Educ. Code § 85.18.

IV. Background

8. Created pursuant to authority granted in the Texas Constitution, the District has

been entrusted by the State and the public with the conservation of the State’s water resources that

are located in Robertson and Brazos Counties. The District’s activities are particularly significant

because they impact the water resources available to serve TAMUS and its flagship institution,

Texas A&M University, the nation’s largest university, the State’s only land-, sea-, and air-grant
institution, and a hub for cutting-edge research.

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 9. Preservation of the water resources within the District’s boundaries are of

paramount concern. In order for a well to be drilled and operated within the District, or water

transported outside of the District, a permit must be issued by the District granting such authority

to the applicant. Tex. Water Code §§ 36.113, 115, and 122. The District may, to protect existing

uses, impose conditions on permits, and such conditions may be more restrictive in new permits.

Tex. Water Code § 36.113. Further, “[i]n order to minimize as far as practicable the drawdown of

the water table or the reduction of artesian pressure, to control subsidence, to prevent interference

between wells, to prevent degradation of water quality, or to prevent waste,” by rule the District

may regulate the production of groundwater by wells and the spacing of wells. Tex. Water Code

§ 36.116; see also District Rules 8.3 and 8.7.

10. When reviewing an application for a permit to transport water outside of the

District, the District is to consider the effect that transport will have on aquifer conditions and on

existing permit holders and other groundwater users in the District, and the District may limit a

transport permit accordingly. Tex. Water Code § 36.122; see also District Rules 10.3 and 10.4.

These rules, as well as others, recognize that any production of groundwater in the District will

inevitably affect the groundwater in the District, both now and in the future, and that the District

must consider these effects before allowing anyone to produce and transport the groundwater in

the District.
11. The Water Code and Rules adopted by the District also provide that a party that

would be affected by a permit, that is, one with a justiciable interest related to a permit application,

is afforded the right to request and participate in a contested case on the permit application to

ensure that their interests are duly considered by the District’s board of directors. Tex. Water Code

§§ 36.4051–418; District Rules 14.2, 14.3, 14.3.5, 14.4, and 14.5.

12. The District’s board is comprised of eight directors who are responsible for the

management of the District’s affairs. Tex. Special Dist. Loc. Laws Code § 8835.051. Four directors

are appointed by the Robertson County Commissioners Court, and each is expressly to represent
a particular interest or to meet a particular qualification (for example, “one must represent

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municipal interests in [Robertson County]” and “one must be a director or employee of a rural

water supply corporation in [Robertson County]”). Tex. Special Dist. Loc. Laws Code § 8835.052.

Two directors are appointed by the Brazos County Commissioners Court. Id. (“[O]ne must be a

bona fide agricultural producer who derives a substantial portion of the producer's income from

agriculture in the county;” and the other “one must be a director or employee of a rural water

supply corporation in the county.” Id.) The other two directors are appointed by the Cities of Bryan

and College Station, with one representing each city and both approved by the Brazos County

Commissioners Court. Id. This structure is intended to ensure that a wide swath of local interests

are effectively represented in the District and weigh in on the District’s considerations and

decisions.

13. Under the District’s enabling legislation, a majority vote of a quorum of the board

is required for board action. Tex. Special Dist. Loc. Laws Code § 8835.055. A tie vote fails. Id. A

quorum is met when a majority of the board’s members are present for the board’s meeting. Tex.

Water Code § 36.053.

14. As directed by the Water Code, hearings and preliminary hearings on permit and

permit amendment applications are to be conducted by a quorum of the board or, if appropriate,

an appointed hearing examiner or the State Office of Administrative Hearings (“SOAH”). Tex.

Water Code §§ 36.4051–406. District Rules likewise provide that if the board is to conduct a
hearing on a permit or permit amendment application or a preliminary hearing on such

applications, it must be conducted by a quorum of the board. District Rules 14.3 and 14.4.

15. Additionally, the Water Code and District Rule 2.3 require the board’s meetings to

be conducted in accordance with the Open Meetings Act, which defines meeting as a deliberation

among a quorum of the board or a gathering that is conducted by the board, at which a quorum is

present, has been called by the board, and at which the members exchange information about

public business the board supervises or controls. Tex. Water Code § 36.064; Tex. Gov’t Code

§ 551.001. The Open Meetings Act defines deliberation as a verbal or written exchange among a
quorum of the board concerning an issue within the board’s jurisdiction. Id. The Open Meetings

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Act requires every regular, special, or called board meeting to be open. Tex. Gov’t Code § 551.002.

These rules effectively seek to ensure that a consensus of the local community—with all its various

interests—consider and act on applications that are brought before the District. The only time that

the board may delegate to the District’s General Manger the authority to act on a permit application

is in the limited circumstance where the permit application does not require a hearing, as identified

under Section 36.114(a) of the Water Code, and the board has by rule delegated that authority to

the General Manager. Tex. Water Code § 36.114(c).

16. This past summer, and prior to August 5, 2024, it was determined by the District

that “several board meetings had been held and business conducted without quorum present. This

was due to eligibility of board members serving at the time.”1 Currently, the entire period of the

board members’ ineligibility is not definitively known to TAMUS. While the District has expressly

acknowledged that the lack of a quorum extends to at least nine board meetings dating back to

February 9, 2023, it may affect board meetings dating back to January 1, 2021.2

17. The business conducted at these meetings includes permit hearings and rulemaking,

and the District has acknowledged that the lack of a quorum has invalidated action previously

taken by the board.3

18. During this period affected by the lack of a quorum, the board purportedly held

permit application hearings for numerous permits that make up what is referred to as the Upwell
project (aka Goodland Farm project). In total, the Upwell project includes forty-eight production

permit applications and eight transportation permit applications that seek to produce and transport

over 100,000 acre-feet of groundwater per year out of the District.4

1 Agenda Item 5 in BVGCD’s Notice of a Regular Board Meeting on August 8, 2024, and information regarding Agenda Item 5,
attached hereto as Attachment 1.
2 Id. See also Draft Rules for Public Hearing on 8-8-24 at Rule 8.3(j) (proposing a rule amendment that would authorize the
general manager to act on permit and permit amendment applications that, among other things, were noticed “during the time
period from January 1, 2021, to July 1, 2024. . . .”), attached hereto as Attachment 2.
3 Agenda Item 10 in BVGCD’s Notice of a Regular Board Meeting on September 12, 2024, and information regarding Agenda
Item 10, attached hereto as Attachment 3.
4 A production permit authorizes the production of a certain quantity of groundwater at a specified rate, and a transport permit
authorizes the transport of produced water outside of the District.

Page 5 of 10
 19. UW Brazos Valley Farm LLC (“Upwell”), a foreign entity that owns land in the

District, has itself applied for sixteen production permits5 and one transport permit—for the

transfer of up to 49,999 acre-feet of water per year out of the District.6 Upwell has also entered

into agreements with seven local landowners, who in the aggregate have applied for thirty-two

production permits7 and seven transport permits—for an aggregated transfer of up to 57,718 acre-

feet of water per year out of the District.8 Upwell is a co-applicant to each of the landowners’

transport permits. The combined amount of all eight transfer permits would exceed 107,000 acre-

feet of water per year, and the size and scope of the Upwell project alone has necessitated the need

for the District to expand its own offices: “Due to the ever-increasing workload experienced by

the District related to impending water production from the Goodland Farm Project (Upwell

Water), there is a real need for the District to explore expanding office space to accommodate

increased staffing and storage needs. . . It is the recommendation by the Building Committee and

General Manager to purchase. . . property. . . as an addition to the existing District facility.”9

20. Pursuant to the Water Code and District Rules, TAMUS has the right to request

contested case hearings on the permit applications pertaining to the Upwell project. District Rules

provide that “[a]ny person who intends to protest a permit application and request a contested case

hearing must provide written notice of the request to the District office at least five (5) calendar

days prior to the date of the hearing.” District Rule 14.3.5. Following receipt of such request,
Section 36.4051 of the Water Code mandates that “[t]he board shall schedule a preliminary hearing

5 Upwell production permits, which are: BVDO-0254; BVDO-0255; BVDO-0256; BVDO-0292; BVDO-0293; BVDO-0294;
BVDO-0295; BVDO-0296; BVDO-0297; BVDO-0298; BVDO-0299; BVDO-0300; BVDO-0301; BVDO-0302; BVDO-0303;
and BVDO-0304.
6
Upwell transport permit: BVTP-001.
7 Landowner/Upwell production permits, which are: BVDO-0108; BVDO-0315; BVDO-0316; BVDO-0317; BVDO-0377;
BVDO-0378; BVDO-0379; BVDO-0380; BVDO-0381; BVDO-0382; BVDO-0383; BVDO-0384; BVDO-0385; BVDO-0386;
BVDO-0387; BVDO-0388; BVDO-0389; BVDO-0394; BVDO-0395; BVDO-0396; BVDO-0397; BVDO-0398; BVDO-0399;
BVDO-0401; BVDO-0402; BVDO-0408; BVDO-0409; BVDO-0410; BVDO-0411; BVDO-0412; BVDO-0413; and
BVDO-0414.
8 Landowner/Upwell transport permits, which are: BVTP-002; BVTP-003; BVTP-004; BVTP-005; BVTP-006; BVTP-007; and
BVTP-008.
9 Agenda Item 1 in in BVGCD’s Notice of a Special Board Meeting on June 3, 2024, and information regarding Agenda Item 1,
attached hereto as Attachment 4.

Page 6 of 10
to hear a request for a contested case hearing filed in accordance with rules adopted [by the

district].” The hearing shall be conducted by: (1) a quorum of the board; (2) an individual to whom

the board has delegated in writing the responsibility to preside as a hearing examiner over the

hearing or matters related to the hearing; or (3) the State Office of Administrative Hearings. Id.

Section 36.416 of the Water Code further provides “[i]f requested by the applicant or other party

to a contested case, a district shall contract with the State Office of Administrative Hearings to

conduct the hearing.”

21. TAMUS timely filed requests for contested case hearings on the permit applications

pertaining to the Upwell project. On September 5, 2024, TAMUS submitted a written request for

contested case hearings to be conducted by SOAH on the Upwell transport permit, the Upwell

production permits, and the Landowner/Upwell production permits.10 Because the board has yet

to consider the applications on the Upwell transport permit, the Upwell production permits, and

the Landowner/Upwell production permits at a duly noticed meeting attended by a quorum of the

board, there have been no permit or board hearings on these permit applications. As a result,

TAMUS’s written request for contested case hearings is timely because it has been submitted to

the District at least five days prior to the date of a hearing on the applications. District Rule 14.3.5.

22. However, the District has failed or refused to act on TAMUS’s requests. It has not

set preliminary hearings or contracted with SOAH to conduct the contested case hearings sought
by TAMUS, as it is obligated to do pursuant to Section 36.4051(b) and (c) and Section 36.416(b)

of the Water Code. The District has not provided a reason for its lack of action on TAMUS’s

requests, nor has the District indicated that it will do so.

23. The District did, however, post notice of a regularly scheduled board meeting to be

held on September 12, 2024 for the purpose of, among other things, potentially taking action on

permit applications for the Upwell project and on newly proposed amendments to the District

10 On June 14, 2024, TAMUS submitted a written request for contested case hearings to be conducted by SOAH on the
Landowner/Upwell transport permits that were identified in the District’s agenda for a Public Permit Hearing to be held on June
18, 2024. At the board meeting conducted on September 12, 2024, the District confirmed that it had contracted with SOAH to
conduct a contested case hearing on the Landowner/Upwell transport permits.

Page 7 of 10
Rules that would delegate authority to the District’s General Manager to “grant and issue” permits,

including permits relating to the Upwell project. By letter dated September 11, 2024, TAMUS

demanded that the District immediately implement TAMUS’s pending requests for contested case

hearings on the Upwell project permits prior to any action by the board or the General Manager

on those permit applications.

24. At its scheduled meeting conducted on September 12, the Board approved the

proposed amendments to the District Rules. Further, the District’s General Manager, when queried

by the board, acknowledged that the District had received timely requests for contested case

hearings on the permit applications pertaining to the Upwell project, without specificity. Despite

that acknowledgement, however, neither the District nor the General Manager has confirmed or

otherwise indicated that TAMUS’s requests will be implemented by contracting with SOAH for

preliminary hearing and further contested case proceedings.

V. Writ of Mandamus

25. The Water Code makes clear that following receipt of a written request for contested

case hearing, the District “shall schedule” a preliminary hearing and, if requested, the District

“shall contract with [SOAH]” to conduct the preliminary hearing and further proceedings on the

contested permit application. Tex. Water Code §§ 36.4051, 36.416. The statutes impose a clear

duty on the District to implement TAMUS’s requests, and provide no room for the exercise of

discretion. See Phillips v. McNeill, 635 S.W.3d 620 (Tex. 2021)(mandamus issued directing state

agency to implement request for administrative hearing before SOAH); Hawkins v. Cmty. Health

Choice, 127 S.W.3d 322 (Tex. App.—Austin 2004, no pet.)(affirming trial court’s issuance of writ

of mandamus directing state entity to refer dispute to SOAH where statute provided that the entity

“shall refer the claim” to SOAH following receipt of a contested case hearing request).

26. This Court has jurisdiction to issue a writ of mandamus to compel the District to

perform its statutorily prescribed duties. Phillips, 635 S.W.3d at 628; see also Anderson v. City of
Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (requiring mayor to hold election on question of

Page 8 of 10
abolishing city’s corporate existence); Bichsel v. Carver, 321 S.W.2d 284, 285 (Tex. 1959)

(proceeding brought to direct chief of police to reinstate member of police force). Section 24.011

of the Government Code expressly vests a district court with the authority to conduct a mandamus

proceeding against a public official. Tex. Gov’t Code § 24.011 (“A judge of the district court may,

either in term time or vacation, grant writs of mandamus, injunction, sequestration, attachment,

garnishment, certiorari, and supersedeas and all other writs necessary to the enforcement of the

court’s jurisdiction.”).

27. A writ of mandamus is properly issued under Texas law to compel a public official

to perform a ministerial act. Phillips, 635 S.W.3d at 628. An act is ministerial when the duty to be

performed by the official is set forth with sufficient certainty that nothing is left to the exercise of

discretion. Id. Stated differently, while the district court’s jurisdiction is not used to substitute its

discretion for that of a public official, the performance of a clear duty that is ministerial should be

mandated by the district court. Harris County v. Walsweer, 930 S.W.2d 659, 668 (Tex. App.—

Houston [1st Dist.] 1996, writ denied).

28. Conversely, an act is not ministerial if it involves the exercise of discretion or

judgment in determining whether the duty exists. State Bar of Tex. v. Heard, 603 S.W.2d 829, 832

(Tex. 1980). A writ of mandamus will not issue to compel a public official to perform an act which

purely involves the exercise of discretion or judgment. Anderson, 806 S.W.2d at 793. However,
this rule is not without exception—a writ of mandamus may issue in a proper case to correct a

clear abuse of discretion by a public official. Anderson, 806 S.W.2d at 793. In addition, if a public

official refuses, after proper request, to take any action in a matter involving the exercise of

discretion, the refusal itself may constitute an abuse of discretion justifying the issuance of

mandamus to compel the official to exercise his or her discretion. See Mauzy v. Legislative

Redistricting Bd., 471 S.W.2d 570, 575 (Tex. 1971) (mandamus issued ordering Legislative

Redistricting Board to fulfill its duty to apportion legislative districts).

Page 9 of 10
 29. In this instance, the District’s obligation to refer the permit and permit amendment

applications to SOAH for contested case hearings is a clear, non-discretionary duty that the District

cannot disregard. The statutory language makes clear that the District shall implement contested

case hearing requests by contracting with SOAH to conduct the contemplated preliminary hearing

and further proceedings. Despite multiple written requests, however, the District has failed or

refused to implement TAMUS’s pending hearing requests. Accordingly, TAMUS is entitled to a

writ of mandamus compelling the District to refer the permit and permit amendment applications

for the Upwell project to SOAH for preliminary hearing and further contested case proceedings.

WHEREFORE, Plaintiff Texas A&M University System respectfully prays that

Defendants be cited to appear and, upon final hearing, that the Court issue a writ of mandamus

directing the Brazos Valley Groundwater Conservation District and its General Manager to

coordinate and contract with the State Office of Administrative Hearings to conduct the requested

contested case proceedings on the permit and permit amendment applications associated with the

Upwell project; and such other and further relief, at law or in equity, to which Plaintiff may be

shown to be justly entitled.

Respectfully submitted,

By: /s/ Breck Harrison

Lynn Sherman
State Bar No. 18243630
Breck Harrison
State Bar No. 24007325
Jackson Walker LLP
100 Congress Avenue, Suite 1100
Austin, Texas 78701
(512) 236-2000
(512) 691-4427 (fax)
lsherman@[Link]
bharrison@[Link]
Attorneys for Plaintiff Texas A&M
University System

Page 10 of 10
 Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
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Lex Campanile on behalf of Breck Harrison

Bar No. 24007325
acampanile@[Link]
Envelope ID: 91976763
Filing Code Description: Petition
Filing Description: Plaintiff's Original Petition for Writ of Mandamus
Status as of 9/13/2024 9:01 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Breck Harrison bharrison@[Link] 9/12/2024 [Link] PM SENT

Lynn Sherman lsherman@[Link] 9/12/2024 [Link] PM SENT