Brazos River Auth. v. City of Hous.

Full title: BRAZOS RIVER AUTHORITY and The State of Texas, Appellants v. CITY OF…

Court: Court of Appeals of Texas, Austin.

Date published: Jun 30, 2021

628 S.W.3d 920 (Tex. App. 2021)

Opinion

NO. 03-20-00076-CV

06-30-2021

BRAZOS RIVER AUTHORITY and The State of Texas, Appellants v. CITY OF HOUSTON; and Sylvester Turner, in his Official Capacity as Mayor of The City of Houston, Appellees

Tiffany S. Bingham, Collyn A. Peddie, Charles H. Houston III, for Appellees City of Houston, Sylvester Turner, in his Official Capacity as Mayor of The City of Houston. Jane M. N. Webre, Michael Merriman, Santosh Aravind, Casey L. Dobson, Austin, for Appellant Brazos River Authority. Christopher Carter, Houston, Matthew Bohuslav, Austin, Natalie D. Thompson, for Appellant The State of Texas.

Edward Smith, Justice

Tiffany S. Bingham, Collyn A. Peddie, Charles H. Houston III, for Appellees City of Houston, Sylvester Turner, in his Official Capacity as Mayor of The City of Houston.

Jane M. N. Webre, Michael Merriman, Santosh Aravind, Casey L. Dobson, Austin, for Appellant Brazos River Authority.

Christopher Carter, Houston, Matthew Bohuslav, Austin, Natalie D. Thompson, for Appellant The State of Texas.

Before Justices Goodwin, Triana, and Smith

OPINION

Edward Smith, Justice This is a dispute over the right to construct and operate a reservoir on Allens Creek. For over two decades, the City of Houston and the Brazos River Authority have jointly held a water-appropriation permit authorizing them to construct the reservoir and to use some of the water impounded there. In 2019, the Legislature instructed Houston to transfer its entire interest in the proposed reservoir, including its permit rights, to the Authority. See Act of May 16, 2019, 86th Leg., R.S., ch. 380, § 1, 2019 Tex. Gen. Laws 688, 688 (H.B. 2846). On cross-motions for summary judgment, the district court granted declaratory relief that H.B. 2846 is "unconstitutional, void, and unenforceable." We will affirm.

BACKGROUND

To provide context to the parties’ dispute, we begin with an overview of the relevant statutory framework, found in Chapter 11 of the Water Code. Under Chapter 11, the waters of Texas rivers, streams, and lakes are declared "the property of the state," see Tex. Water Code § 11.021(a), and "held in trust for the public," see id. § 11.0235(a). The right to use state water may be acquired by appropriation in the manner and for the purposes the chapter prescribes. See id. §§ 11.022, .023. No one may appropriate state water or "begin construction of any work designed for the storage, taking, or diversion of water" without a permit from the Texas Commission on Environmental Quality. See id. § 11.121. In processing a permit application, the Commission must comply with various procedural requirements, including providing notice to senior water rights holders and the opportunity for a hearing. See id. §§ 11.132, .133. The Commission may grant the application only after concluding, among other things, that the proposed appropriation "is intended for a beneficial use." See id. § 11.134(b)(3)(A). The permit may authorize an appropriation for a certain time or of permanent duration. See id. §§ 11.135–.138.

A permanent water right is conditioned on ongoing "beneficial use" of the appropriated water as set out in the permit. See id. § 11.135(a) ("The applicant's right to take and use water is limited to the extent and purposes stated in the permit."). The appropriative right is limited "not only to the amount specifically appropriated" in the permit, "but also to the amount which is being or can be beneficially used for the purposes specified in the appropriation, and all water not so used is considered not appropriated." See id. § 11.025. Similarly, no appropriative right is "perfected" until the water has been "beneficially used" for a purpose specified in the permit. See id. § 11.026. And because "[n]o person is granted the right to waste water by not using it," Lower Colo. River Auth. v. Texas Dep't of Water Res. , 689 S.W.2d 873, 882 (Tex. 1984), an appropriative right is subject to forfeiture or cancelation for nonuse, see Tex. Water Code §§ 11.030, .146, .171–.177, .183–.186. "But such rights continue to exist in perpetuity to the extent beneficial use does." Ware v. Texas Comm'n on Env't Quality , No. 03-14-00416-CV, 2017 WL 875307, at *1 (Tex. App.—Austin Mar. 3, 2017, no pet.) (mem. op.). With this statutory framework in mind, we turn to the history of the case.

The site of the proposed reservoir is an approximately 9,500-acre tract located in Austin County near the confluence of Allens Creek and the Brazos River. In 1974, the Texas Water Commission (a predecessor of the Commission) granted Houston Power and Lighting Company's application for a permit to build a reservoir on the site. Water Appropriation Permit 2925 authorized HP&L to construct the reservoir and to use a certain amount of the water impounded there. The reservoir was never built, and the Commission canceled the permit at HP&L's request. HP&L retained ownership of the site subject to an option to purchase held by the Authority.

In 1999, the Legislature intervened to encourage development of a reservoir on the site. The Legislature designated the site "as a site of unique value for the construction of a dam and reservoir on Allens Creek" and found "that construction and development of the Allens Creek Reservoir project" would be "in the public interest and would constitute a beneficial use of the water." Act of May 22, 1999, 76th Leg., R.S., ch. 1291, § 1.01, 1999 Tex. Gen. Laws 4426, 4426 (S.B. 1593). To that end, S.B. 1593 granted the Texas Water Development Board (Board) "the right to construct a dam and reservoir on Allens Creek" and to "divert and use from the reservoir an amount of water specified" in a permit to be issued by the Commission. Id. § 1.02(a). Instead of having the Board apply for a new permit, S.B. 1593 instructed the Commission to

reissue without notice or hearing Water Appropriation Permit No. 2925 previously issued for the Allens Creek Reservoir. The permit shall be issued in the name of the Texas Water Development Board and it shall have a priority date of September 1, 1999. The date to commence construction of the reservoir shall be not later than September 1, 2018. The [Commission¹ ] may extend such time for beginning of construction for good cause.

1 S.B. 1593 names the Texas Natural Resource Conservation Commission, the predecessor of the Commission on Environmental Quality.

Id. § 1.02(b). To confirm the Commission's authority, S.B. 1593 amended Chapter 11 to authorize the Commission to reissue certain permits without notice or hearing. Id. § 2.01 (codified at Tex. Water Code § 11.1311 ).²

2 Section 11.1311, which was added by S.B. 1593, does not mention Permit 2925 by name but applies to "[a] permit for a reservoir project" that meets certain enumerated criteria. See Tex. Water Code § 11.1311(a). There is no suggestion that any other permit meets that criteria.

The Commission reissued the permit—now called Permit 2925A—to the Board in February 2000. Meanwhile, the Authority exercised its option to purchase the reservoir site. The Authority paid $150,000 and received a deed to the site, subject to payment of the full purchase price. To secure financing for the site and the reservoir itself, the Authority turned to Houston. Houston and the Authority executed an interlocal agreement specifying their responsibilities. As an initial step, they agreed to jointly apply to the Water Board for a $20,000,000 loan to finance purchase of the site, with Houston committing to pay 70% and the Authority 30%. If the two were successful in obtaining the loan, the Authority agreed to convey to Houston a 70% interest in the site. Next, they would jointly apply to the Commission to reissue the permit jointly to them. Houston committed to pay 70% and the Authority 30% of the development and construction costs, with each party receiving a proportionate share of the water appropriated by the permit.

The Water Board granted the loan application the same year. The Authority recorded its deed to the site but did not convey any interest to Houston. The Commission subsequently issued an amended Permit 2925A jointly to Houston and the Authority.³ The permit required that construction begin no later than September 1, 2018, and finish within three years. Failure to meet either deadline would cause the permit "to expire and become null and void" unless the Commission granted an extension.

3 The Water Development Board also retained an interest in the permit.

However, construction could not start immediately. The permit required the holders to design the reservoir, undertake a habitat mitigation study in cooperation with the Texas Parks and Wildlife Department, and develop a plan to mitigate the environmental effects of the reservoir. The design would have to comply with standards laid out in the Commission's rules, and the plans would have to be submitted to the Executive Director of the Commission for approval "prior to beginning construction." In addition to these state-law requirements, federal law required the parties to obtain a permit pursuant to Section 404 of the Clean Water Act from the Army Corps of Engineers. Houston and the Authority executed a memorandum of understanding with the Texas Parks and Wildlife Department as an initial step towards meeting these requirements. The studies had not been completed as of the date of trial, and the two have not begun the process for acquiring the Section 404 permit. As the September 2018 deadline approached, Houston and the Authority requested an extension from the Legislature. In 2011, the Legislature agreed and directed the Commission to reissue the permit with a September 1, 2025 deadline to begin construction. See Act of May 19, 2011, 82d Leg., R.S., ch. 434, § 2, sec. 1.06, 2011 Tex. Gen. Laws 1104, 1104 (S.B. 1132). The Commission issued an amended permit—now called Permit 2925B—reflecting the new deadline.

The permittees made no further progress developing the reservoir by the time the Legislature held hearings on H.B. 2846 in 2019. Representatives of the Authority, Houston, and other interested entities testified. David Collingsworth, the Authority's general manager, testified that Houston was uninterested in funding the project because it did not need additional water. Collingsworth testified that the Authority, in contrast, needs additional water to meet the needs of its customers in the region. Carol Haddock, Houston's Director of Public Works, testified that Houston "did not necessarily fully appreciate the urgency of our partners" but was committed to the project. She estimated that Houston had spent approximately twenty-three million dollars on it to date. Other stakeholders testified in support of the bill and regarding the need for a reservoir in the area.

H.B. 2846 passed the Legislature and was signed into law. It amends S.B. 1593 to provide:

Sec. 1.07. (a) Notwithstanding any other provision of this article, not later than January 1, 2020, the City of Houston shall enter into a contractual agreement with the Brazos River Authority to transfer to the Brazos River Authority all of the city's ownership interests in the Allens Creek Reservoir project, including all required water right permits, along with the responsibility to construct the project in accordance with all associated

statutory requirements and deadlines.

(b) Construction of the reservoir is subject to the Brazos River Authority obtaining all necessary federal permits.

(c) In addition to other necessary provisions, the contractual agreement described by Subsection (a) must include provisions for the transfer of an amount not to exceed $23 million from the Brazos River Authority to the City of Houston.

H.B. 2846, § 1, sec. 1.07, 2019 Tex. Sess. Law Serv. at 688.

Shortly after H.B. 2846's effective date, the Authority sent Houston a proposed amendment to the Interlocal Agreement reflecting H.B. 2846's terms. Houston responded by suing the State and the Authority for declaratory relief that H.B. 2846 is invalid on multiple grounds. See Tex. Civ. Prac. & Rem. Code § 37.004(a) (authorizing suit for declaratory relief concerning validity of statutes). Houston filed a traditional motion for summary judgment, and the State and the Authority jointly filed a cross-motion for traditional summary judgment.⁴ Houston separately filed objections to many of the exhibits attached to the cross-motion. The district court granted summary judgment to Houston and rendered declaratory relief that H.B. 2846 violates the Texas Constitution's prohibitions on retroactive laws, local or special laws, and the forced sale of government property. The district court further concluded that H.B. 2846 is unenforceable because it "violates [ Sections 272.001 and 552.020 ] of the Local Government Code." Based on these declarations, the district court rendered judgment that H.B. 2846 "in its entirety is unconstitutional, void, and unenforceable." In a separate order, the district court sustained Houston's evidentiary objections in part and overruled them in part. The State and the Authority have appealed to this Court.

4 The Authority also filed a third-party claim against Sylvester Turner, Mayor of the City of Houston, alleging that he acted ultra vires by refusing to execute the contract. The district court dismissed that claim for want of jurisdiction after concluding that H.B. 2846 is unconstitutional.

EVIDENTIARY RULINGS

Before turning to the merits of the parties’ cross-motions for summary judgment, we must determine what evidence is properly before us. The district court sustained Houston's objections to, as relevant here, the transcript of a hearing before the Committee on Natural Resources of the Texas House of Representatives on H.B. 2826 and the 2016 Region H Water Plan (2016 Plan). Appellants invite us to take judicial notice of both exhibits. See Office of Pub. Util. Counsel v. Public Util. Comm'n of Tex. , 878 S.W.2d 598, 600 (Tex. 1994) ("A court of appeals has the power to take judicial notice for the first time on appeal."). We will grant their request.

A court may take judicial notice of "a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Tex. R. Evid. 201(b). Houston argues that we may not take judicial notice of the transcript because it contains speculation. Specifically, Houston argues that the witnesses and legislators speculated as to Houston's intentions regarding the project. Leaving aside the question of whether those individual statements have evidentiary value, the fact that stakeholders testified regarding the need for the proposed reservoir and their concerns about H.B. 2846 is a matter of legislative record and not subject to reasonable dispute. See id. We take judicial notice of the transcript and will incorporate it into our discussion of the merits of this appeal.⁵ See Zaatari v. City of Austin , 615 S.W.3d 172, 187 (Tex. App.—Austin 2019, pet. denied) (taking judicial notice of hearing testimony and other legislative history pertaining to challenged municipal ordinance); see also City of El Paso v. Fox , 458 S.W.3d 66, 72 (Tex. App.—El Paso 2014, no pet.) (taking judicial notice of minutes of city council that were publicly available on council's website).

5 We note that the district court overruled Houston's objections to transcripts of two other committee hearings on H.B. 2846, both of which contain similar testimony.

Houston does not address whether we may properly take judicial notice of the 2016 Plan. We take judicial notice of the 2016 Plan because it is a matter of public record and its accuracy is undisputed.⁶ See Office of Pub. Util. Counsel , 878 S.W.2d at 600 (authorizing courts to take judicial notice of records on file with state agencies that are capable of accurate and ready determination and whose accuracy cannot reasonably be questioned); see also MCI Sales & Serv., Inc. v. Hinton , 329 S.W.3d 475, 485 n.7 (Tex. 2010) (taking judicial notice of report issued by federal agency).

6 Every five years, the Water Board adopts a state water plan incorporating regional water plans submitted by planning groups in different parts of the state. See Tex. Water Code §§ 16.051(a), .053. Region H is the planning area that includes Houston and the proposed Allens Creek Reservoir. The 2016 Plan details the anticipated uses of water from all sources in the region, including the proposed Allens Creek Reservoir. It also describes the regulatory steps that must be completed before construction can begin.

DISCUSSION

We now turn to whether the district court correctly granted summary judgment to Houston and declared that H.B. 2846 is void and unenforceable.

Standard of Review

Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c) ; AEP Tex. Cent. Co. v. Arredondo , 612 S.W.3d 289, 293 (Tex. 2020). We review an order granting summary judgment de novo, "taking as true all evidence favorable to the nonmovant and indulging every reasonable inference in the nonmovant's favor." AEP Tex. , 612 S.W.3d at 293. When both parties move for summary judgment on the same issue, "we consider the evidence presented by both parties and determine all questions presented," rendering the judgment the trial court should have rendered. See Bush v. Lone Oak Club, LLC , 601 S.W.3d 639, 646–47 (Tex. 2020).

A question of statutory construction is a legal one, which we also review de novo. Id. Our goal in construing a statute is to ascertain and give effect to the Legislature's intent, looking first to the "plain and common meaning of the statute's words." Id. (citing MCI Sales & Serv., Inc. v. Hinton , 329 S.W.3d 475, 500 (Tex. 2010) ). In discerning a statute's plain and common meaning, we "consider the context and framework of the entire statute and construe it as a whole." Aleman v. Texas Med. Bd. , 573 S.W.3d 796, 802 (Tex. 2019) (citing Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Comm'n , 518 S.W.3d 318, 326 (Tex. 2017) ).

Statutory Claims

We begin with the district court's conclusion that H.B. 2846 is invalid because it "violates [ sections 272.001 and 552.020 ] of the Local Government Code."⁷ See Tex. Loc. Gov't Code §§ 272.001(a) (requiring any "political subdivision of the state" to provide notice before transferring land unless enumerated exception applies), 552.020 (regulating water supply contracts between water districts and municipalities). Appellants argue that the district court erred because there is no conflict or, if one exists, H.B. 2846 controls. Houston responds that H.B. 2846 is invalid in that it requires Houston to execute a contract that violates sections 272.001 and 552.020 of the Local Government Code. We agree with appellants.

7 We address this ground for summary judgment first because it does not require us to decide whether H.B. 2846 is constitutional. See In re B.L.D. , 113 S.W.3d 340, 349 (Tex. 2003) ("As a rule, we only decide constitutional questions when we cannot resolve issues on nonconstitutional grounds.").

Houston's argument is essentially that H.B. 2846 is invalid because it modifies sections 272.001 and 552.020. But the "Legislature's power to amend or repeal an earlier statute is generally limited only by federal or state constitutional provisions or federal law." Graphic Packaging Corp. v. Hegar , 538 S.W.3d 89, 104 (Tex. 2017). "When statutes irreconcilably conflict, traditional rules of statutory construction dictate that the later enacted and more specific legislation should control." Id. at 98. H.B. 2846 requires a single municipality to execute a contract with the Authority that contains specified terms. By contrast, Section 272.001 requires any "political subdivision of the state" to provide notice before transferring land unless an exception applies, Tex. Loc. Gov't Code § 272.001(a), and Section 552.020 applies generally to water–supply contracts between municipalities and water districts, id. § 552.020. These requirements first appeared in 1987. See Act of May 15, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 1055–56, 1243–44. Assuming that a conflict exists, H.B. 2846 controls because it is the later-enacted and more specific provision. See Hegar , 538 S.W.3d at 98 ("As the later-enacted, more specific statute, section 171.106 prevails."); Jackson v. State Off. of Admin. Hearings , 351 S.W.3d 290, 297 (Tex. 2011) (holding later-enacted and more specific statute controlled). The district court erred by overturning H.B. 2846 based on its conclusion that the legislation violates sections 272.001 and 552.020 of the Local Government Code. ⁸

8 Houston also argues that the district court found that H.B. 2846 "also violates the Texas Local Government Code through [the Authority's] Enabling Act." The Authority's enabling act is codified in the Special District Local Laws Code, not the Local Government Code. See generally Tex. Spec. Dist. Code §§ 8502.001–.020. But even if we were to assume that the district court's declaration also encompasses this statute, we would still reject Houston's argument. Houston argues that H.B. 2846 violates a provision authorizing the Authority to "execute contracts with municipalities in the state substantially in the manner prescribed by Section 552.020, Local Government Code[.]" See id. § 8502.006(c). H.B. 2846—which is more recent and pertains to a single contract—would prevail over that provision of the Authority's Enabling Act. See Graphic Packaging Corp. v. Hegar , 538 S.W.3d 89, 98 (Tex. 2017) ("When statutes irreconcilably conflict, traditional rules of statutory construction dictate that the later enacted and more specific legislation should control.").

Constitutional Challenges

In considering Houston's constitutional challenges to H.B. 2846, we begin with a presumption that the statute is valid. See In re Commitment of Fisher , 164 S.W.3d 637, 645 (Tex. 2005) ("An analysis of the constitutionality of a statute begins with a presumption of validity."). We start with Houston's claim that H.B. 2846 is unconstitutionally retroactive because it is dispositive.

The Texas Constitution prohibits the creation of retroactive laws. See Tex. Const. art. I, § 16 ("No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made."). "A retroactive law is one that extends to matters that occurred in the past." Tenet Hosps. Ltd. v. Rivera , 445 S.W.3d 698, 707 (Tex. 2014) ; see also Union Carbide Corp. v. Synatzske , 438 S.W.3d 39, 55 (Tex. 2014) ("We have defined a retroactive law as ‘a law that acts on things which are past.’ " (quoting Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 219 (Tex. 2002) )). Appellants both argue that H.B. 2846 is not retroactive but present different arguments in support of their respective contentions.

The Authority argues that nothing in H.B. 2846 defeats the presumption that statutes apply prospectively. Although the Authority is correct that courts "generally presume that statutes are prospective unless they are expressly made retroactive," City of Austin v. Whittington , 384 S.W.3d 766, 790 (Tex. 2012), no specific language is required to defeat this presumption. Instead, courts construe the statutory text to determine the Legislature's intent. See In re M.C.C. , 187 S.W.3d 383, 384 (Tex. 2006) (per curiam) (explaining that statutes are "applied retroactively if the statutory language indicates that the Legislature intended that the statute be retroactive"). Construing H.B. 2846 as a whole, we agree that it has retroactive effect. As we explain in greater detail below, the Commission's grant of Permit 2925B conveyed a constitutionally protected property interest, which H.B. 2846 eliminated. See Texas Water Rights Comm'n v. Wright , 464 S.W.2d 642, 648 (Tex. 1971) (holding statute authorizing forfeiture of water rights after period of nonuse applied retroactively because of its "definite impact on rights created before the effective date of the statute"); Zaatari , 615 S.W.3d at 188 (holding municipal ordinance banning short-term rentals retroactive because it "operates to eliminate well-established and settled property rights that existed before the ordinance's adoption"); see also Robinson v. Crown Cork & Seal Co. , 335 S.W.3d 126, 139 (Tex. 2010) (noting that "[m]ost statutes operate to change existing conditions" (citing Wright , 464 S.W.2d at 648 )).

The State argues that H.B. 2846 does not change the "legal significance of actions Houston took in the past." To the extent the State means that a law is only retroactive if it changes the effect of past conduct, we disagree. The Texas Constitution's ban on retroactive laws is a "general prohibition" on applying laws to "matters which have occurred in the past[.]" Id. at 138. Thus, whether H.B. 2846 is retroactive does not turn on whether it changes the consequences of Houston's past "actions."⁹ Next, the State argues that H.B. 2846 is not unconstitutionally retroactive because Houston's right in the permit, if any, is not "vested." Traditionally, courts concluded a law was unconstitutionally retroactive if it "takes away or impairs vested rights[.]" Subaru of Am. , 84 S.W.3d at 219 (citing Ex parte Abell , 613 S.W.2d 255, 260 (Tex. 1981) ; McCain v. Yost , 155 Tex. 174, 284 S.W.2d 898, 900 (1955) ). But as the State acknowledges elsewhere in its brief, the supreme court expressly rejected this test, explaining that "[w]hat constitutes an impairment of vested rights is too much in the eye of the beholder to serve as a test for unconstitutional retroactivity." Robinson , 335 S.W.3d at 143. Instead, courts consider three factors in light of the prohibition's dual objectives of "protect[ing] the people's reasonable, settled expectations"—i.e., that "the rules should not change after the game has been played," and "protect[ing] against abuses of legislative power." See id. at 138 (citing Landgraf v. USI Film Prods. , 511 U.S. 244, 265–66, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ). Those factors are: (1) "the nature and strength of the public interest served by the statute as evidenced by the Legislature's factual findings;" (2) "the nature of the prior right impaired by the statute;" and (3) "the extent of the impairment." Id. at 145. This test acknowledges the heavy presumption against retroactive laws by requiring a compelling public interest to overcome the presumption. Tenet Hosps. , 445 S.W.3d at 707. But it also appropriately encompasses the notion that "statutes are not to be set aside lightly." Id. (citing Robinson , 335 S.W.3d at 146 ).

9 We observe that the State relies on a case—Ramirez v. State , 184 S.W.3d 392, 395 (Tex. App.—Dallas 2006, no pet.) —applying the constitutional prohibition on ex post facto laws. See Tex. Const. art. I, § 16 ("No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made."). The prohibition on ex post facto laws concerns legislation imposing punishment for past acts. Rodriguez v. State , 93 S.W.3d 60, 67 (Tex. Crim. App. 2002) ("[T]he mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts." (citing De Veau v. Braisted , 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) )). Because H.B. 2846 is not a criminal statute, the ex post facto provision does not apply here. See Barshop v. Medina Cnty. Underground Water Conservation Dist. , 925 S.W.2d 618, 633 (Tex. 1996) ("It is well established that the prohibition against ex post facto laws applies only to retroactive criminal or penal laws.").

We first consider whether H.B. 2846 serves a compelling public interest "as evidenced by the Legislature's factual findings." See Robinson , 335 S.W.3d at 145. Houston argues that the absence of findings is "fatal" to the statute's constitutionality. However, the Court in Robinson considered the entire legislative record and additional related information, see id. , and we have done the same in subsequent cases, see Zaatari , 615 S.W.3d at 189 (considering legislative record and other pertinent information when applying Robinson test); Texas Educ. Agency v. American YouthWorks, Inc. , 496 S.W.3d 244, 264 n.111 (Tex. App.—Austin 2016), aff'd sub nom. Honors Acad., Inc. v. Texas Educ. Agency , 555 S.W.3d 54 (Tex. 2018) (same). Considering the legislative record and the other pertinent evidence in the record, we conclude that the public interest served by H.B. 2846 is slight.

Appellants argue that H.B. 2846 is in the public interest because it is necessary to discharge the Legislature's constitutional duty to conserve the State's natural resources. See Tex. Const. art. XVI, § 59 (a) ("The conservation and development of all of the natural resources of this State ... [is] hereby declared [a] public right[ ] and dut[y]; and the Legislature shall pass all such laws as may be appropriate thereto."). They argue that the record demonstrates that the Legislature reasonably determined that Houston should be removed from the project and that we should defer to that determination as in the public interest.

We agree that constructing the reservoir is in the public interest. In addition to the findings in S.B. 1593, the legislative record of H.B. 2846 demonstrates the need for a reservoir in the region.¹⁰ We also agree that the record demonstrates that the Legislature acted out of concern for the delays in developing and constructing the proposed reservoir. Cf. Robinson , 335 S.W.3d at 150 (noting that it "[a]ccept[s] the legislative record as indicating the reasons for [the Legislature's] actions"). However, nothing in the record supports a conclusion that H.B. 2846 resolves these concerns.

10 For example, Brazoria County Judge Matt Sebasta testified that the inability to obtain "firm water" resources threatens the county's population growth. Tony Bennet, President of the Texas Association of Manufacturers, testified that the availability of affordable water rights is crucial to the region's economy. A representative of Dow Chemical agreed, adding that his company twice decided against expanding in the region because of the scarcity of reliable water access.

Permit 2925B provides that failure to begin construction by September 1, 2025, renders the permit null and void. To reach that point, the Authority must first obtain a variety of regulatory authorizations. According to the 2016 Plan, these include:

• obtaining a permit under Section 404 of the Clean Water Act,

• obtaining a National Environmental Policy Act Environmental Impact Statement,

• completing a Cultural Resources Survey and National Register of Historic Places testing,

• developing a plan to mitigate the impact of the reservoir on the waters and wetlands of the United States, and

• completing ancillary studies required by the United States Fish and Wildlife Service and the Texas Parks and Wildlife Department to determine the presence of endangered species on the site and to assess the impact of the project.

The 2016 Plan estimates a "10-year schedule" to complete these steps and an additional two-and-a-half-to three-and-a-half year allowance to design and construct the reservoir itself. David Collingsworth, the Authority's general manager and CEO, told the Legislature in 2019 that the permitting process would begin "in the next twelve months" and be complete within "5-7 years," followed by three years of construction. In all, he estimated that "we are looking at a 10-year project here if, if all the stars align and everything goes right."

But even if Houston had transferred its interest to the Authority by the January 1, 2020, deadline, and the Authority had started the process immediately, less than five years would have remained until the September 1, 2025 deadline to begin construction. Neither appellant suggests that H.B. 2846's statement that construction is subject to the Authority obtaining "all necessary federal permits" modifies that deadline, and we do not interpret it that way. When the Legislature passed S.B. 1132 to extend the construction deadline, it did so in express terms:

Time Limitation No. 7.a. in Permit No. 2925A issued by the Texas Natural Resource Conservation Commission, the predecessor agency to the Texas Commission on Environmental Quality, to the Texas Water Development Board is amended to require that construction of the Allens Creek Reservoir commence on or before September 1, 2025, and be completed not later than the fifth anniversary of the date construction of the reservoir commences.

S.B. 1132, § 1, sec. 1.06 (a), 2011 Tex. Gen. Laws at 1104. If the Legislature intended in H.B. 2846 to extend the deadline, it could easily have done so. See Zanchi v. Lane , 408 S.W.3d 373, 380 (Tex. 2013) (noting that if the Legislature had intended service-of-citation rules to apply to service of expert reports in suits over health care liability claims, it "knew how to do so").

The permit would not expire if the Authority timely applied for an extension and the Commission subsequently granted one. However, an extension is not available as of right under the Commission's rules. The Commission "may grant" an extension if the permit holder explains why construction "could not be commenced or completed within the time required" and demonstrates they acted with "reasonable diligence" to begin or complete construction on time. See 30 Tex. Admin. Code § 295.72(b) (Texas Comm'n on Envt'l Quality, Applications for Extension of Time). The parties did not utilize this procedure in 2011 but rather sought an extension from the Legislature. At oral argument, the Authority agreed that it will likely need to return to the Legislature for an extension of the construction deadline.

Given the likelihood that Permit 2925B will expire unless the Legislature or the Commission takes further action, H.B. 2846 itself does little to advance construction of the reservoir. Appellants disagree, arguing that H.B. 2846 is necessary because the reservoir will never be built if Houston is involved. Houston responds that the record does not support this view, attributing much of the delay to litigation over the Authority's application for a separate permit to appropriate additional water from the proposed reservoir. Houston and the Authority reached a settlement in 2014 where they agreed to begin developing the reservoir after the Authority's new permit became final and unappealable, which occurred four years later.¹¹ Setting aside whether the record supports either characterization of Houston's involvement, the fact that removing Houston from the project has a rational relation to constructing the Allens Creek Reservoir does not automatically render H.B. 2846 constitutional. See Maple Run at Austin Mun. Util. Dist. v. Monaghan , 931 S.W.2d 941, 947 (Tex. 1996) (rejecting argument that "any law having a conservation purpose" necessarily does not violate constitutional prohibition on local or special laws); see also Robinson , 335 S.W.3d at 145 (reiterating that retroactive legislation is not exempt "from the constitutional prohibition merely because there was a rational basis for its enactment, or even because, on balance, it is likely to do more good than harm"). The Legislature made no findings to justify H.B. 2846, and, based on the record before us, we conclude the public interest served is slight. Compare Tenet Hosps. , 445 S.W.3d at 707 (holding that retroactive provision of legislation that "was a comprehensive overhaul of Texas medical malpractice law" served compelling public interest), and Synatzske , 438 S.W.3d at 58 (holding that retroactive legislation aimed at resolving asbestos-related litigation crisis and supported by legislative fact findings served compelling public interest), with Robinson , 335 S.W.3d at 143–44 (holding that retroactive legislation ostensibly enacted for sole benefit of one entity and not supported by legislative fact findings did not serve compelling public interest).

11 We discuss this dispute in more detail in our consideration of the second Robinson factor.

Even if we were to conclude that H.B. 2846 serves a compelling interest, our consideration of the remaining Robinson factors—which require us to balance the purpose against the nature of the prior right and the extent to which the statute impairs that right—would still result in our conclusion that the statute is unconstitutionally retroactive. See Robinson , 335 S.W.3d at 147–48. Regarding the nature of the prior right, we consider the extent to which the impaired right was "settled." Id. at 142–43, 147, 149. The dissent argues that we should begin by analyzing whether Houston's permit right is vested. In the dissent's view, Robinson did not "vitiate the need to evaluate whether the prior right is vested" but rather taught that a showing of vested rights is not always required. Post at 938. Surveying decades of case law, the dissent argues that the prohibition on retroactive legislation "broadly protects rights" of individual and private entities—even if those rights are not vested—but protects a narrower class of rights held by municipal corporations and other political subdivisions. Id. at 943. The dissent "conclude[s] that when a municipal corporation asserts a prior right against the State to challenge a retroactive law as unconstitutional, the municipal corporation generally needs to demonstrate that the nature of its prior right against the State is a vested property right as a threshold requirement to trigger the Robinson " balancing test. Id. at 944.

We read Robinson differently. Generally, before any constitutional rights attach, a litigant must possess a "liberty or property interest that is entitled to constitutional protection." Klumb v. Houston Mun. Emps. Pension Sys. , 458 S.W.3d 1, 15 (Tex. 2015). A constitutionally protected interest "must be a vested right, which is ‘something more than a mere expectancy based upon an anticipated continuance of an existing law.’ " Id. (quoting City of Dallas v. Trammell , 129 Tex. 150, 101 S.W.2d 1009, 1014 (1937) ). The term "vested right" had a "special meaning" in the retroactivity context prior to Robinson , 335 S.W.3d at 140. Surveying its precedents applying the impairs-vested-rights test, the supreme court observed that "there are vested rights and then there are vested rights, and not all laws which may fairly be said to retroactively impair vested rights are constitutionally prohibited." Id. at 142. In the court's estimation:

The dispute over whether to call something a vested right appears driven not so much by what the words mean as by the consequence of applying the label—that its impairment is prohibited. Or as one commentator has put it: "it has long been recognized that the term ‘vested right’ is conclusory—a right is vested when it has been so far perfected that it cannot be taken away by statute."

Id. at 143 (internal footnote omitted). The supreme court therefore discarded the impairs-vested-rights test in favor of the balancing test. See id. ("What constitutes an impairment of vested rights is too much in the eye of the beholder to serve as a test for unconstitutional retroactivity."); In re Occidental Chem. Corp. , 561 S.W.3d 146, 161 (Tex. 2018) (orig. proceeding) (explaining that Robinson "expressly rejected the vested-rights test"). While Robinson discarded the "special meaning" the term "vested" had taken on in retroactivity jurisprudence, it preserved the requirement that litigants possess an interest that is vested in the sense that is "more than a mere expectancy based upon an anticipated continuance of an existing law." See, e.g., Honors Acad. , 555 S.W.3d at 61. Every litigant who challenges a law as unconstitutionally retroactive must possess an interest that is "vested" in this sense. See id. at 61–69 (evaluating, for purposes of due process and retroactivity claims, whether charter school operator's interest in charter rose to that level).

To support its argument that that municipalities must possess an interest that is vested in the sense rejected in Robinson , the dissent turns to the general rule that "Municipal Corporations do not acquire vested rights against the State" but that the "Legislature cannot by retroactive legislation applicable to municipal corporations destroy or impair vested rights which persons have acquired in their relationships with the municipal corporations." Deacon v. City of Euless , 405 S.W.2d 59, 62 (Tex. 1966). In Milam County v. Bateman —which addressed counties as political subdivisions of the State—the supreme court stated that:

[T]he political rights and privileges delegated to counties are not within the constitutional prohibitions against retroactive laws and those which impair vested rights. A different principle, however, obtains as regards the rights of counties to property which they may acquire. Such rights, as a general rule, are protected by the same constitutional guarantees which shield the property of individuals.

54 Tex. 153, 165–66 (Tex. 1880) ; see also Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll. Dist. , 554 S.W.2d 924, 930 (Tex. 1977) (plurality op.) (applying Milam County ); Love v. City of Dallas , 120 Tex. 351, 40 S.W.2d 20, 27 (1931) (holding that even though school district had no vested right to continue operating, "the public that it represents has a vested right in the municipal property acquired for its benefit"). The dissent would proceed to determine whether Houston's permit rights are "property" within the meaning of these decisions. We respectfully decline to do so because neither appellant argues that Houston's status as a municipal corporation affected the nature of its right. And we are not required to address it because the rule announced in these cases does not necessarily implicate standing. See Wilson v. Andrews , 10 S.W.3d 663, 669 (Tex. 1999) (repudiating dicta in Proctor v. Andrews , 972 S.W.2d 729, 734 (Tex. 1998), which had agreed with court of appeals that city lacked standing to raise due process and equal protection challenges because municipalities do not enjoy due process rights); Stop the Ordinances Please v. City of New Braunfels , 306 S.W.3d 919, 929 (Tex. App.—Austin 2010, no pet.) (noting that "plaintiff is not required to allege the deprivation of a ‘vested right’ constituting a due-process violation to demonstrate the requisite infringement of a ‘legally protected interest’ ").¹² Instead, we evaluate the case as it has been presented to us by the parties.

12 The dissent argues that we must perform this analysis because Robinson directs a reviewing court to consider the nature of the prior right, and the Authority and Houston both challenge whether Houston's permit rights are entitled to protection. We agree that we must determine whether the prior right is entitled to protection, but we are not required to fashion an argument on a party's behalf. See In re Thompson , 330 S.W.3d 411, 424 (Tex. App.—Austin 2010, orig. proceeding) (explaining that "it is not court's duty to ‘fashion a legal argument ... when [party] has failed to do so’ and that it is inappropriate for appellate court to ‘speculate as to what [party] may have intended to raise’ " (quoting Canton-Carter v. Baylor Coll. of Med. , 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.) )). We therefore decline to address whether Houston's status as a municipality affects whether its prior right is enforceable. Cf. Wilson v. Andrews , 10 S.W.3d 663, 669 (Tex. 1999) (explaining city had standing to assert due process claim and choosing to "assume without deciding that government entities can raise due process and equal protection challenges and confront the merits of its constitutional challenges.").

We now turn to determining Houston's interest.¹³ Constitutionally protected property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law[.]" Honors Acad. , 555 S.W.3d at 61 (citing Board of Regents of State Colls. v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ). Appellants argue that the supreme court has already settled this issue by holding that no one has protected rights in unused water rights. E.g., Wright , 464 S.W.2d at 648 (explaining permittees were not "vested with the right of non-use of the water"). In this view, a water-appropriation permit is no more than a right to acquire water rights in the future through use. We disagree.

13 To avoid confusion, we will refrain from using the term "vested" any further in determining the nature of Houston's prior right. See Zaatari v. City of Austin , 615 S.W.3d 172, 190 (Tex. App.—Austin 2019, pet. denied) ("Regarding the nature of the prior right, we consider not whether the impaired right was ‘vested,’ but the extent to which that right was ‘settled.’ ").

First, the text of Permit 2925B clearly contemplates a lengthy process of development and construction before use of the appropriated water. In addition to the federal regulatory requirements, the permit requires the holders to submit to the Commission a federally approved plan to mitigate the environmental effects, design the reservoir and obtain the Commission's approval of the designs, and obtain the Commission's approval of conservation and drought contingency for the facility.

Second, Chapter 11 does not support appellants’ view of a water-appropriation permit. Although there is no doubt that "[n]o person is granted the right to waste water by not using it," Lower Colo. River Auth. , 689 S.W.2d at 882, Chapter 11 contemplates that using some water rights will require permit holders to construct the necessary facilities. The statute sets default deadlines to begin construction, see Tex. Water Code § 11.145, and authorizes cancellation of a permit if the permittee fails to begin construction on time, see id. § 11.146.¹⁴ The Commission may issue temporary permits reallocating water rights while the development process is ongoing unless "the issuance of the permit will jeopardize financial commitments made for water projects that have been built or that are being built to optimally develop the water resources of the area." See id. § 11.1381(b). Additionally, the statute exempts from cancelation for nonuse permits that were "obtained as the result of the construction of a reservoir funded, in whole or in part, by the holder of the permit." See id. § 11.173(b)(4); 30 Tex. Admin. Code § 297.71(b)(6) (2021) (Texas Comm'n on Env't Quality, Cancelation in Whole or in Part).

14 Section 11.146 does not apply to a permit to construct a reservoir that, like the Allens Creek proposal, can hold more than 50,000 acre-feet of water. See Tex. Water Code § 11.146(g).

These provisions apply fully to Permit 2925B despite the unique way it was issued. Section 11.1311 provides that a permit issued pursuant to that section—which Permit 2925B was—"shall be administered in accordance with this chapter and as otherwise provided by law." Tex. Water Code § 11.1311(c). Construed as a whole, Chapter 11 clearly indicates that a permit such as Houston's is more than a mere expectation that the permit holder will one day acquire protected rights. See Honors Acad. , 555 S.W.3d at 61 ("To have a constitutionally protected property interest, a person must have a ‘legitimate claim of entitlement’ rather than a mere ‘unilateral expectation.’ ") (quoting Roth , 408 U.S. at 577, 92 S.Ct. 2701 )); see also American YouthWorks , 496 S.W.3d at 260 (explaining that "[s]ome substantive limit on the State's discretion" to revoke benefit "is an essential characteristic of a property interest warranting constitutional protection" (citing Grounds v. Tolar Indep. Sch. Dist. , 856 S.W.2d 417, 418 (Tex. 1993) ).¹⁵ Wright and the supreme court's other cases involving property rights in water permits do not alter our conclusion. Wright involved a challenge to a statute authorizing cancelation of a water permit after ten years of nonuse. 464 S.W.2d at 642. The supreme court agreed that the statute was retroactive because it impacted rights that existed before the statute's effective date. Id. at 648. Rejecting the permit holders’ arguments that their permits did not require them to use the water, the court explained that a permit "by definition" conveys "only the right to use the water for beneficial purposes." Id. at 647. "Inherently attached to a permit to appropriate waters, therefore, is the duty that the appropriator will beneficially use the water." Id. at 648. Thus, the permittees could reasonably expect enforcement of conditions inherently attached to their permits, and the permits themselves carried no right to be forever free of a remedy to enforce those conditions. Id.

15 Houston argues that the effect of these provisions is that Houston is entitled to retain its permit until it expires unless the Commission cancels it through the procedure laid out in Chapter 11. Appellants respond that Chapter 11 "makes no difference" to Houston's claim because the Legislature is not bound by its own statutes. We agree with appellants to the extent that Chapter 11 does not prevent the Legislature from acting to cancel Houston's permit outside the context of Chapter 11. See Hegar , 538 S.W.3d at 104 ("[A]s a general rule, one ‘legislature cannot prevent future legislatures from amending or repealing a statute.’ " (quoting Central Power & Light Co. v. Public Util. Comm'n of Tex. , 649 S.W.2d 287, 289 (Tex. 1983) )). But Chapter 11 is not irrelevant—it shapes the contours of Houston's property interest.

The supreme court later rejected a retroactivity challenge to the Edwards Aquifer Act for similar reasons. See Barshop v. Medina Cnty. Underground Water Conservation Dist. , 925 S.W.2d 618, 633–34 (Tex. 1996). Before the Act, withdrawal of groundwater from the aquifer was unrestricted. Id. at 624. The Act created an Authority to regulate groundwater withdrawals and, among other things, capped annual withdrawals and restricted withdrawals under a permit based on the owner's historic use. Id. The court upheld the Act despite its retroactive effect because the landowners could have no settled expectation "that a limited resource like groundwater, affected by public and private interests, will not require allocation[.]" See Robinson , 335 S.W.3d at 145 (discussing Barshop , 925 S.W.2d at 633–34 ).

Houston's interest in Permit 2925B is more settled. Unlike the property owners in Barshop , Houston is relying on a permit allocating it a specific amount of water. And unlike the permits at issue in Wright , Houston's permit contemplates a period of nonuse of the appropriated water. Houston could reasonably expect to rely on the terms of the permit. Appellants disagree, arguing that Houston could have no settled expectations in a permit it had not used and had refused to fund for two decades. However, the record shows that Houston could reasonably expect that the development process would not begin until 2018. In 2002—two years after the Commission reissued the permit jointly to the parties—the Authority filed with the Commission a separate application for a "System Operations Permit." This application requested numerous authorizations, including a new appropriation of 400,000 acre-feet of state water. The new appropriation included additional water from the proposed Allens Creek Reservoir. Securing that portion of the appropriation required Houston's approval. Houston refused and was among several parties who contested the application in an administrative proceeding. Houston and the Authority executed a settlement agreement in 2014 calling for Houston to withdraw its contest in return for a share of the additional appropriation. The Settlement Agreement further provided that "[a]fter the Authority obtains a final and non-appealable Permit, Houston and the Authority shall enter into one or more subsequent Agreements ... to provide for the implementation in detail of the terms generally contemplated by this Agreement" and the Interlocal Agreement, including "the development and design, construction, operation, and maintenance" of the proposed reservoir. The Commission issued System Operations Permit No. 5851 to the Authority in 2016, but it did not become final and unappealable until 2018. The record contains no evidence that the negotiations called for in the settlement agreement took place.

In sum, the terms of the permit, the governing statutory provisions, and the surrounding circumstances all contribute to a reasonable, settled expectation that Houston will retain its interest in Permit 2925B at least until September 1, 2025. Based on the record before us, we conclude that Houston's property interest in Permit 2925B is "settled."

We now turn to the third Robinson factor, which directs us to consider the extent of H.B. 2846's impairment of the settled rights. See Robinson , 335 S.W.3d at 145. Appellants concede that H.B. 2846 eliminates Houston's 70% interest in the project but argue that the impairment is "minimal" because Houston has no need for the water for the next fifty years. Houston disagrees and cites Haddock's affidavit regarding the role Houston's rights in Permit 2925B played in the City's long-term water plans. Notwithstanding Houston's relative need for the water, a water right is valuable in other ways beyond its immediate usefulness. A permanent water right is an easement that passes with title to the land and may be conveyed as with other rights in land. See Tex. Water Code § 11.040 ; Ware , 2017 WL 875307, at *1. Haddock testified that Houston's interest in the project constitutes 15% of its total surface water rights and that Houston relied on the existence of this interest in its long-term water planning. H.B. 2846 undeniably eliminates Houston's 70% interest in the project. The elimination of a right plainly has a significant impact on that right.¹⁶ See Robinson , 335 S.W.3d at 148.

16 Although H.B. 2846 eliminates Houston's interest in the project, the impact on Houston's obligation to repay the remainder of the loan from the Water Board to purchase the reservoir site is less clear. Executive Administrator of the Water Board Jeff Walker testified during the hearings in 2019 that Houston had paid eleven million dollars out of its fourteen-million-dollar share of the loan.

Because the record shows that H.B. 2846 serves a minimal public interest while having a significant impact on Houston's well-settled property right, we hold that H.B. 2846 is unconstitutionally retroactive. See id. at 150. Consequently, the district court did not err in granting summary judgment to Houston on this ground. Having concluded that H.B. 2846 is unconstitutionally retroactive, we need not address Houston's remaining constitutional challenges to that statute. See Tex. R. App. P. 47.1.

CONCLUSION

We affirm the district court's judgment.

Dissenting Opinion by Justice Goodwin

DISSENTING OPINION

Melissa Goodwin, Justice

In 2019, the Legislature enacted H.B. 2846, directing the City of Houston to contract with the Brazos River Authority (BRA) to transfer "all of the city's ownership interests in the Allens Creek Reservoir project, including all required water right permits, along with the responsibility to construct the project," in exchange for "an amount not to exceed $23 million." Act of May 16, 2019, 86th Leg., R.S., ch. 380, § 1, 2019 Tex. Gen. Laws 688, 688. The City challenged H.B. 2846's constitutionality as a retroactive law, see Tex. Const. art. I, § 16 ; a local law, see id. art. III, § 56; and as a forced sale, see id. art. XI, § 9. The trial court granted summary judgment in the City's favor. Today, the Court affirms on the ground that H.B. 2846 is an unconstitutional retroactive law without addressing the other constitutional grounds.

People may differ in their views on the wisdom of enacting H.B. 2846 and may choose to hold their legislatures accountable by expressing their approval or disapproval at the ballot box. But "[o]ur role is much more limited": judicial review does not license "second-guessing the political branches’ policy choices" or "substituting the wisdom of [ ] judges for that of [ ] lawmakers." Morath v. The Tex. Taxpayer & Student Fairness Coal. , 490 S.W.3d 826, 833 (Tex. 2016). A judge's conclusion that a law "passes the threshold of constitutionality" is "not an endorsement" of that law because "[c]onstitutionality is a minimum standard—a guarantee." Id. at 887, 892 (Guzman, J., concurring). "The power of the courts is not unbounded," and quite simply, "we can only grade pass or fail, yes or no." Id. at 887 (Guzman, J., concurring).

A statute is presumed constitutional, and the party challenging the statute bears the burden to demonstrate its unconstitutionality. Union Carbide Corp. v. Synatzske , 438 S.W.3d 39, 55 (Tex. 2014). For the following reasons, I conclude that the City did not meet its burden to overcome this presumption as to the retroactivity ground. In my opinion, the Court should sustain the State's and BRA's appellate issue that H.B. 2846 is not unconstitutionally retroactive and should then consider their other appellate issues and address the City's "forced sale" and "local law" constitutional challenges. Accordingly, I respectfully dissent.

RETROACTIVITY

The Texas Constitution prohibits retroactive laws. See Tex. Const. art. I, § 16. But "[m]ere retroactivity is not sufficient to invalidate a statute"; "[m]ost statutes operate to change existing conditions, and it is not every retroactive law that is unconstitutional." Robinson v. Crown Cork & Seal Co. , 335 S.W.3d 126, 139 (Tex. 2010) (quoting Texas Water Rights Comm'n v. Wright , 464 S.W.2d 642, 648 (Tex. 1971) ). Although courts must "be careful to enforce the constitutional prohibition to safeguard its objectives," "courts must be mindful that statutes are not to be set aside lightly," id. at 146, and the Texas Supreme Court has noted that it has "only upheld constitutional retroactivity challenges four times," Tenet Hosps. Ltd. v. Rivera , 445 S.W.3d 698, 708 (Tex. 2014) (collecting cases). Nevertheless, a retroactivity analysis is " ‘not always a simple or mechanical test’ "; one Justice has noted that "the question is a complex one." Synatzske , 438 S.W.3d at 61 (Lehrmann, J., dissenting) (quoting Landgraf v. USI Film Prods. , 511 U.S. 244, 268, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ). Here, not only is the question complex but also the facts render it a particularly close call, as illustrated by this Court's considered opinion. But given the presumption of constitutionality and when confronted with these facts as interpreted in light of case precedent, it is my opinion that H.B. 2846 passes the "minimum standard" of constitutionality as to the retroactivity prohibition.

Traditionally, courts concluded that a law is unconstitutionally retroactive when its retroactive operation impairs vested rights. Robinson , 335 S.W.3d at 139. In 2010, the Robinson Court abandoned this test, concluding that "[w]hat constitutes an impairment of vested rights is too much in the eye of the beholder to serve as a test for unconstitutional retroactivity." Id. at 143. Instead, "courts must consider three factors in light of the prohibition's dual objectives" of "protect[ing] settled expectations that rules are to govern the play and not simply the score, and prevent[ing] the abuses of legislative power that arise when individuals or groups are singled out for special reward or punishment." Id. at 145. These three factors are: (1) "the nature and strength of the public interest served by the statute," (2) "the nature of the prior right impaired by the statute," and (3) "the extent of the impairment." Id.

Robinson , however, does not vitiate the need to evaluate whether the prior right is vested. Indeed, this analysis may play an important role in evaluating the second factor: the nature of the prior right. See id. at 148 (concluding under second factor that Robinsons’ right to assert their tort claims "was real and important, and it was firmly vested in the Robinsons" (emphasis added)); see also City of Austin v. Whittington , 384 S.W.3d 766, 790 (Tex. 2012) (noting post- Robinson that "applying procedural, remedial, or jurisdictional statutes retroactively does not violate the Constitution's prohibition on retroactive laws" because "procedural and remedial laws generally do not affect vested rights, which are property rights that the Constitution protects like any other property"). Rather, Robinson stands for the proposition that determining that the prior right is vested is generally not dispositive of the retroactivity issue. See 335 S.W.3d at 145 ("We think our cases establish that the constitutional prohibition against retroactive laws does not insulate every vested right from impairment[.]").¹

1 In other constitutional contexts, Texas courts still determine whether rights are vested. See, e.g., Klumb v. Houston Mun. Emps. Pension Sys. , 458 S.W.3d 1, 15 (Tex. 2015) (considering constitutional due process challenge and noting that "[a] constitutionally protected right must be a vested right, which is ‘something more than a mere expectancy based upon an anticipated continuance of an existing law’ " (quoting City of Dallas v. Trammell , 129 Tex. 150, 101 S.W.2d 1009, 1014 (1937) )). Thus, Robinson v. Crown Cork & Seal Co. does not call into question the entire framework of "vested rights." See generally 335 S.W.3d 126, 136–47 (Tex. 2010). Rather, Robinson appears to question the "impairs vested rights" test in the retroactivity context because the case law has inconsistently labeled rights as vested for retroactivity when the real rationale driving the retroactivity holdings is something other than a concern for protecting vested rights. Id. at 141–42 (noting that "[i]n each of these cases, significant interests were adversely impacted by changes in the law, yet the Court held that vested rights were not impaired"; that "while due process and antiretroactivity may protect vested rights differently, Mellinger [v. City of Houston , 68 Tex. 37, 3 S.W. 249, 254–55 (1887) ] did not explain why a limitations bar is a vested right in one context but not in the other," and "a law that is prohibitively retroactive might not also offend due process, but not because a vested right for one is not a vested right for the other"; and that results of past "cases seem entirely reasonable in a very general sense ... but it is not clear how they were driven by a concern for protecting vested rights"); see Union Carbide Corp. v. Synatzske , 438 S.W.3d 39, 56 (Tex. 2014) ("We determined [in Robinson ] that classifying a right or interest as ‘vested’ in order to determine whether it has been retroactively diminished or impaired in violation of the constitution has not yielded an efficient and predictable framework." (emphasis added)).

Nevertheless, the Texas Supreme Court has concluded that determining that a right is not vested in some circumstances may be dispositive for overcoming a retroactivity challenge. For example, in Honors Academy, Inc. v. Texas Education Agency , the Texas Supreme Court considered whether the decision to revoke an open-enrollment charter school's charter based on the retroactive use of past financial ratings was unconstitutionally retroactive. 555 S.W.3d 54, 57, 60 (Tex. 2018). The Court noted that the issue was the charter school's "right to continue operating its open-enrollment charter school, an entity owing its powers and existence to the Legislature." Id. at 66. Citing long-standing law that " ‘Municipal Corporations do not acquire vested rights against the State,’ " the Court held that "a charter school's charter is not a vested property right to which the due course of law or prohibition on retrospective laws apply." Id. at 67–68 (quoting Deacon v. City of Euless , 405 S.W.2d 59, 62 (Tex. 1966) ). Thus, whether a charter school's charter was a vested property right to which the retroactivity prohibition applied was dispositive of the issue without a Robinson analysis.

Accordingly, Honors Academy instructs that although Robinson may have changed the general analytical framework for evaluating whether a retroactive law is unconstitutional from an "impairs vested rights" test to a factor test, the nature of the prior right may, in some circumstances, categorically prevent the application of the retroactivity prohibition.² This bar is especially pertinent when a governmental entity or political subdivision, like a municipal corporation, asserts a retroactivity challenge, as evidenced by Honors Academy ’s reliance on Deacon. See id. at 67 (citing Deacon , 405 S.W.2d at 62 ). In Deacon , landowners challenged a city's annexation ordinances as void, relying on a statute made applicable to annexation proceedings pending on March 15, 1963, notwithstanding the statute's effective date of August 23. 405 S.W.2d at 60–61. The city argued that to give retroactive effect to the statute violated the constitutional prohibition against retroactive laws. Id. at 62. The Deacon Court held:

2 This categorical bar does not necessarily implicate standing, however. See Wilson v. Andrews , 10 S.W.3d 663, 669 (Tex. 1999) (noting that "we overstated our position" in Proctor v. Andrews , 972 S.W.2d 729, 734 (Tex. 1998), when Proctor Court in dicta agreed with court of appeals that city lacked standing to raise due process and equal protection challenges because municipalities do not enjoy due process rights); Stop the Ordinances Please v. City of New Braunfels , 306 S.W.3d 919, 929 (Tex. App.—Austin 2010, no pet.) (noting that "plaintiff is not required to allege the deprivation of a ‘vested right’ constituting a due-process violation to demonstrate the requisite infringement of a ‘legally protected interest’ "). But see El Paso County v. El Paso Cnty. Emergency Servs. Dist. No. 1 , 622 S.W.3d 25, 41 (Tex. App.—El Paso 2020, no pet.) (concluding El Paso County Emergency Services Districts do not have standing to raise due process and equal protection challenges because "Texas law is well-settled that municipal corporations and other units of government are not vested with constitutional rights under the Texas or United States Constitutions"); City of Irving v. Dallas/Fort Worth Int'l Airport Bd. , 894 S.W.2d 456, 465 (Tex. App.—Fort Worth 1995, writ denied) ("[A] municipal corporation which exists under the authority of a state has no standing to raise a challenge under the Contract Clause of either the Federal or State Constitution," and "a municipality's sovereignty is dependent upon that of the state.").

Section 16, Art. 1, prohibits the making of retroactive laws in so far as they destroy or impair vested rights. The Legislature cannot by retroactive legislation applicable to municipal corporations destroy or impair vested rights which persons have acquired in their relationships with the municipal corporations, but Municipal Corporations do not acquire vested rights against the State.

...

We hold that Section 16, Art. 1 of the Constitution did not prohibit the Legislature from making the relevant provisions of Art. 970a retroactive to annexation proceedings pending on March 15, 1963. It is immaterial that the City may

have begun proceedings for annexation of the territory in controversy when there was no general law limitation on the size of areas which could be annexed; it acquired no vested right against the State to complete them.

Id. (internal citations omitted). And this Court has held that municipal corporations cannot rely on Article I provisions to invalidate laws governing them, stating:

Municipal corporations and other government subdivisions derive their existence and powers from legislative enactments and are subject to legislative control and supremacy. Consequently, they cannot use the sword of the due-process-of-law and other provisions of Article I to invalidate the laws that govern them. ... [But] the legislature's supremacy and control over municipalities and other agencies of the state do not extend so far as to permit the legislature to infringe upon rights given municipalities and other subdivisions or agencies of the State, as such , in some express constitutional provision outside Article I.

Texas Workers’ Comp. Comm'n v. City of Bridge City , 900 S.W.2d 411, 414 (Tex. App.—Austin 1995, writ denied) ; see Honors Acad. , 555 S.W.3d at 68 (citing City of Bridge City , 900 S.W.2d at 414, with approval and noting in citation parenthetical City of Bridge City ’s conclusion "that governmental entities cannot use Article I rights to invalidate the laws that govern them"); Proctor v. Andrews , 972 S.W.2d 729, 734 (Tex. 1998) ("Courts have recognized that a municipal corporation or other government subdivision can bring a constitutional challenge based on a provision outside the bill of rights and its guarantees to ‘persons’ and ‘citizens.’ " (citing City of Bridge City , 900 S.W.2d at 414 )); El Paso County v. El Paso Cnty. Emergency Servs. Dist. No. 1 , 622 S.W.3d 25, 41 (Tex. App.—El Paso 2020, no pet.) ("A unit of government may assert constitutional violations outside of the bill of rights where it is ‘charged with implementing a statute’ that it believes violates the Texas or United States Constitution." (quoting Proctor , 972 S.W.2d at 734 )).³

3 Other authorities have addressed related issues. See, e.g., Tooke v. City of Mexia , 197 S.W.3d 325, 345 (Tex. 2006) ("A governmental entity cannot complain of a retroactive waiver of immunity, since all governmental immunity derives from the State, and a governmental entity acquires no vested rights against the State." (citing Deacon v. City of Euless , 405 S.W.2d 59, 62 (Tex. 1966) )); City of Fort Worth v. Zimlich , 29 S.W.3d 62, 72 (Tex. 2000) ("The City, however, derives its existence and powers from legislative enactments and is subject to legislative control. Consequently, the Legislature has the power to require the City to submit to inconvenient venue, and the City's due process challenge of this application of the venue statute fails."); Proctor , 972 S.W.2d at 734 (agreeing with court of appeals that "municipalities do not enjoy due process rights"); White Deer Indep. Sch. Dist. v. Martin , 596 S.W.3d 855, 864 (Tex. App.—Amarillo 2019, pet. denied) ("Because statutes are unconstitutional only when they operate retroactively to ‘destroy or impair’ vested rights, and the District, as a governmental entity, has no vested rights against the State, we conclude that the District's interest in tax revenues is not a vested right to which the prohibition on retroactive laws applies." (citing Deacon , 405 S.W.2d at 62 )); see also Toledo City Sch. Dist. Bd. of Educ. v. State Bd. of Educ. , 146 Ohio St.3d 356, 56 N.E.3d 950, 960 (2016) (collecting and comparing decisions by "our sister supreme courts" "examin[ing] whether the prohibition on retroactive laws extends to political subdivisions").

These authorities, however, do not prevent municipal corporations from relying on the retroactivity prohibition in all situations; it depends on the nature of the prior right asserted by the municipal corporation. In Milam County v. Bateman —which addressed counties as political subdivisions—the Texas Supreme Court held that although "the political rights and privileges delegated to counties are not within the constitutional prohibitions against retroactive laws and those which impair vested rights," a "different principle, however, obtains as regards the rights of counties to property which they may acquire" and "[s]uch rights, as a general rule, are protected by the same constitutional guarantees which shield the property of individuals." 54 Tex. 153, 165–66 (1880) ; see Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll. Dist. , 554 S.W.2d 924, 930 (Tex. 1977) (plurality op.) (noting that in Milam County "[t]he legislature's extensive control over its subdivisions’ political rights was recognized, but it was held that a subdivision's property rights, ‘are protected by the same constitutional guarantees which shield the property of individuals’ " (quoting Milam County , 54 Tex. at 166 )). The rationale underlying this distinction appears to rest on the fact that when a political subdivision of the State acquires and holds property devoted to public use,⁴ it is generally acting as trustee for the local public:

4 The City specifically asserts that its alleged prior right impacted by H.B. 2846 will be devoted to public use, stating that "H.B. 2846 requires an unconstitutional forced sale of specific municipal assets Houston owns and will devote to exclusive public use" and that "[t]here is no dispute that, as a regional WWP, Houston's[ ] intended use of the Reservoir was as a municipal and regional water supply" and citing Tex. Civ. Prac. & Rem. Code § 101.0215(11), (19), (32) (identifying as governmental functions "waterworks," "dams and reservoirs," and "water and sewer service"); Long Island Water-Supply Co. v. City of Brooklyn , 166 U.S. 685, 689, 17 S.Ct. 718, 41 L.Ed. 1165 (1897) ("[T]hat the supply of water to a city is a public purpose cannot be doubted[.]").

The corporate entity is a legislative creation, and its powers may be restrained, its functions changed, or its existence destroyed at the will of the legislature; but, in so far as it has acquired and holds property, it is but a trustee for the local public; and, although its powers be withdrawn or its existence ended, the property which survives it belongs to the same public, and must be, in some way, applied to its use. It has no contract right to exist as a corporation, but the public that it represents has a vested right in the municipal property acquired for its benefit, and is entitled to demand that such property be applied to its uses.

Love v. City of Dallas , 120 Tex. 351, 40 S.W.2d 20, 27 (1931) (quoting Pearson v. State , 56 Ark. 148, 19 S.W. 499, 500 (1892), and noting that Pearson "correctly stated the rule as to legislative power over ... other municipal properties" and "[n]ot only is this a correct statement of the rule, but it is the one accepted by the best writers and courts of the country");⁵ see Texas Antiquities Comm. , 554 S.W.2d at 930–31 (discussing Milam County and Love ). Thus, consistent with the rationale enunciated in Love , when a municipal corporation acquires and holds property for the benefit of the local public, the local public has acquired a vested right in that property by virtue of its relationship with the municipal corporation, and challenged legislation impairing that right would be subject to the Robinson factor test to determine whether the law is unconstitutionally retroactive. See Deacon , 405 S.W.2d at 62 ("The Legislature cannot by retroactive legislation applicable to municipal corporations destroy or impair vested rights which persons have acquired in their relationships with the municipal corporations[.]"); see also Robinson , 335 S.W.3d at 145–46 (replacing "impairs vested rights" test with factor test).

5 Love v. City of Dallas concerned school districts’ property rights. 120 Tex. 351, 40 S.W.2d 20, 26 (1931). However, the Love Court noted, "School districts are local public corporations of the same general character as municipal corporations" and "are defined as quasi-municipal corporations"; "[c]ities and towns and municipal corporations are of the same general nature as quasi-municipal corporations, in so far as here involved, and the right of the Legislature to create, abolish, enlarge, or restrict them in their territory or powers is, unless restrained by special constitutional provisions, similar to the authority of the Legislature over quasi-municipal corporations"; and "[t]his opinion necessarily deals with both types of public corporations, and it is not believed that the rules of law as to school property rights are different." Id. at 26–27.

From this case law, I derive the following principles. For individuals and private entities, the Texas Constitution's prohibition against retroactive laws "broadly protects rights, although they may not be rights in property." Wright , 464 S.W.2d at 648. For political subdivisions like municipal corporations, on the other hand, the constitutional prohibition against retroactive laws protects a narrower class of rights against the State.⁶ Reading Honors Academy, Deacon, Milam County , Love , and the other related cases discussed above together, I conclude that when a municipal corporation asserts a prior right against the State to challenge a retroactive law as unconstitutional, the municipal corporation generally needs to demonstrate that the nature of its prior right against the State is a vested property right as a threshold requirement to trigger the Robinson factor test.

6 Although the cited cases concern different types of political subdivisions—e.g., cities in Deacon or counties in Milam County —in my opinion the principles that I derive from the case law generally cover these entities for the purpose of a retroactivity analysis, although the specific application of the principles may have different nuances depending on what type of entity is asserting the constitutional challenge. Here, it is undisputed that the City is a home-rule municipality. "Municipalities are creatures of law that are ‘created as political subdivisions of the state ... for the exercise of such powers as are conferred upon them. ... They represent no sovereignty distinct from the state and possess only such powers and privileges as have been expressly or impliedly conferred upon them.’ " Town of Lakewood Village v. Bizios , 493 S.W.3d 527, 530 (Tex. 2016) (quoting Payne v. Massey , 145 Tex. 237, 196 S.W.2d 493, 495 (1946) ). "Home-rule municipalities ‘derive their powers from the Texas Constitution’ and ‘possess the full power of self government and look to the Legislature not for grants of power, but only for limitations on their power.’ " Id. at 531 (quoting In re Sanchez , 81 S.W.3d 794, 796 (Tex. 2002) (orig. proceeding) ); see also Tex. Const. art. XI, § 5. Although some authorities I cite refer to political subdivisions as legislative creations, see, e.g., Love , 40 S.W.2d at 27 ; Texas Workers’ Comp. Comm'n v. City of Bridge City , 900 S.W.2d 411, 414 (Tex. App.—Austin 1995, writ denied), this does not accurately refer to "home-rule municipalities." Nevertheless, I see no reason that these general principles would not also apply to home-rule municipalities as political subdivisions. See, e.g., City of Galveston v. State , 217 S.W.3d 466, 469 (Tex. 2007) (describing home-rule cities as political subdivisions by noting that "[p]olitical subdivisions in Texas have long enjoyed immunity from suit when performing governmental functions" and that "high standard" for waiver of immunity "is especially true for home-rule cities" because "[s]uch cities derive their power from the Texas Constitution, not the Legislature"); Guaranty Petrol. Corp. v. Armstrong , 609 S.W.2d 529, 531 (Tex. 1980) ("A political subdivision has jurisdiction over a portion of the State; a department, board or agency of the State exercises its jurisdiction throughout the State. Members of the governing body of a political subdivision are elected in local elections or are appointed by locally elected officials; those who govern departments, boards or agencies of the State are elected in statewide elections or are appointed by State officials. Political subdivisions have the power to assess and collect taxes; departments, boards and agencies do not have that power."); Willis v. Potts , 377 S.W.2d 622, 625 (Tex. 1964) ("The Legislature from time to time has passed laws controlling such Home Rule Cities. Such Home Rule Cities exist solely by virtue of the State Constitution and legislative enactments. These cities are therefore political and governmental subdivisions under this state."); City of Goose Creek v. Hunnicutt , 120 Tex. 471, 39 S.W.2d 617, 618 (Tex. [Comm'n App.] 1931) ("It is true that legislative power to incorporate a home rule city is, by constitutional provision, delegated to the inhabitants of the territory affected; nevertheless a city so incorporated is a political subdivision of the state for governmental purposes."), overruled on other grounds by De Shazo v. Webb , 131 Tex. 108, 113 S.W.2d 519 (1938).

With this framework in mind, I turn to the nature of the prior right asserted by the City.⁷ The City argues that "appropriated water rights are ordinarily considered to be vested rights" and that "the ‘prior right’ impaired by [H.B. 2846] is Houston's right to 70% of water from the Reservoir." The State, on the other hand, argues that "[t]he most Houston can claim is an unperfected right to use water that it has never exercised," see Tex. Water Code § 11.026 ("No right to appropriate water is perfected unless the water has been beneficially used...."); that "[t]he power that authorizes or proposes to give may always revoke before an interest is perfected in the done" (quoting De Cordova v. City of Galveston , 4 Tex. 470, 479 (1849) (Hemphill, C.J.)); and thus that "the State is free to take away Houston's unperfected, or unvested, water rights."

7 BRA and the State raise the appellate issue of whether the City had a vested right and challenge the City's assertions to possessing a vested property right against the State. Although they do not expressly address what rights the City, as a municipal corporation, can acquire as vested rights against the State for the purpose of a retroactivity analysis, a court performing a Robinson analysis must consider "the nature of the prior right impaired," including whether the City met its burden to overcome the presumption of constitutionality by demonstrating that the prior right it asserts is a vested property right against the State.

The water use permit at issue here, Permit 2925B, is a "grant[ ] to the permittees of usufructuary rights to the State's water upon the implied condition subsequent that the waters would be beneficially used." See Wright , 464 S.W.2d at 649 ; see also Tex. Water Code § 11.0235(a) ("The waters of the state are held in trust for the public, and the right to use state water may be appropriated only as expressly authorized by law."); In re Adjudication of the Water Rights of Upper Guadalupe Segment of Guadalupe River Basin , 642 S.W.2d 438, 444 (Tex. 1982) (noting that "[a] usufruct has been defined as the right to use, enjoy and receive the profits of property that belongs to another"); Ware v. Texas Comm'n on Envtl. Quality , No. 03-14-00416-CV, 2017 WL 875307, at *1 (Tex. App.—Austin Mar. 3, 2017, no pet.) (mem. op.) ("Under Chapter 11, the waters of Texas rivers, streams, and lakes (among other sources) are declared to be the property of the State (i.e., ‘state water’) held in trust for the public, but the right to use state water (as opposed to corporeal ownership) may be acquired by appropriation in the manner and for the purposes the chapter prescribes." (internal footnotes and citations omitted)). No doubt, "a water right, when acquired and perfected, constituted a vested right to the use of the water appropriated." Wright , 464 S.W.2d at 647 (collecting cases); see In re Adjudication , 642 S.W.2d at 445 ("Appropriated water rights, like riparian rights, are vested."); Clark v. Briscoe Irrigation Co. , 200 S.W.2d 674, 679 (Tex. App.—Austin 1947, writ dism'd) ("Nor is there any question but that a water right, when acquired and perfected either under the posting or permit system, constitutes a vested interest in or title to the use of the water thereby appropriated."). But here, the water has not been beneficially used or appropriated, and the City's right to appropriate water has not been perfected in the almost 20 years since the permit had been initially issued. See Tex. Water Code § 11.026. In Motl v. Boyd , the Texas Supreme Court explained and described the nature of a permit right prior to appropriation. 116 Tex. 82, 286 S.W. 458, 475 (1926), disapproved of on other grounds by Valmont Plantations v. State , 163 Tex. 381, 355 S.W.2d 502 (1962). The Motl Court stated: "The instrument issued by the board is called by the statute in various sections a permit; that is, a permit to appropriate water. Permit is synonymous with leave or license, and means no more than that the party has the license of the state to become an appropriator of water upon statutory conditions." Id. (emphasis added). Referencing a predecessor statute of Section 11.026 that similarly required beneficial use before appropriation rights are considered perfected, the Motl Court continued: "The right to appropriate does not mature until the permit holder actually appropriates it in the manner and form prescribed by the statute. ... On the whole, we think the permit is just what the name signifies—merely a license to become an appropriator of public water." Id. This Court, following and expounding on Motl , explained: "Thus, a permit is no more than evidence of a right to acquire another right, the right to use whatever quantity of water the holder may require for a beneficial use." Lower Colo. River Auth. v. Texas Dep't of Water Res. , 638 S.W.2d 557, 563 (Tex. App.—Austin 1982) (citing Motl , 286 S.W. at 475 ), rev'd on other grounds , 689 S.W.2d 873 (Tex. 1984) ; see 73 Tex. Jur. 3d Water § 113 ("A permit is, however, merely a license to become an appropriator of public water on statutory conditions. The right to appropriate does not mature until the permit holder actually appropriates water in the manner and form prescribed by the statute." (citing Motl , 286 S.W. at 475 )). Accordingly, not only has the City not perfected the usufructuary water right described in Permit 2925B, but also it has not even acquired that right. See Tex. Water Code §§ 11.002(5) (defining "[w]ater right" to mean "a right acquired under the laws of this state to impound, divert, or use state water"), .022 ("The right to the use of state water may be acquired by appropriation in the manner and for the purposes provided in this chapter." (emphasis added)). By acquiring the permit to use the water, the City has acquired only the "right to acquire [the usufructuary] right" in the future through beneficial use. See Lower Colo. River Auth. , 638 S.W.2d at 563.

Consistent with these authorities, I cannot conclude that the City's right to acquire in the future a water use right upon appropriation constitutes a vested property right that would satisfy the threshold requirement to trigger a Robinson analysis for a municipal corporation. The City does not cite any case authorities that would support its position that an unperfected water right granted in a permit is a vested property right, and general principles of Texas law indicate the contrary. See, e.g., De Cordova , 4 Tex. at 479 (Hemphill, C.J.) ("The power that authorizes or proposes to give may always revoke before an interest is perfected in the done.").

The City argues that Permit 2925B is exempt from permit cancellation under Section 11.173(b), presumably implying that this statutory protection from cancellation changes the nature of the right granted in the permit to a vested right. See Tex. Water Code § 11.173(b). But Section 11.173(b) exempts a permit "from cancellation under Subsection (a)." Id. And Section 11.173(a) merely authorizes the cancellation of a permit based on 10 years of nonuse "during the 10-year period immediately preceding the cancellation proceedings authorized by this subchapter." Id. § 11.173(a). If the condition is satisfied, the permit "is subject to cancellation in whole or in part, as provided by this subchapter, to the extent of the 10 years nonuse." Id. ; see id. § 11.172 ("A permit ... is subject to cancellation in whole or part for 10 years nonuse as provided by this subchapter."). But Subchapter E provides the procedural mechanism for cancelling a permit for nonuse and is limited to authorizing the cancellation for nonuse; it does not generally protect an unperfected water right from cancellation. See generally id. §§ 11.171–.186 ("Subchapter E. Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse"). In other words, Section 11.173(b) does not create a settled expectation that a specified type of permit will not be cancelled at all such that the right granted in the permit is vested; rather, to the extent Section 11.173(b) creates settled expectations, the expectation is that the permit will not be cancelled for nonuse under Subchapter E.

The City may be correct that Chapter 11 does not authorize the Commission to cancel its permit on the ground that the right has not been perfected. See id. § 11.177(a) (authorizing commission to cancel permit after hearing and nonuse finding). But the Legislature's power to enact, amend, or repeal state laws is "generally limited only by federal or state constitutional provisions or federal law"—not other legislative acts—and "as a general rule, one ‘legislature cannot prevent future legislatures from amending or repealing a statute.’ "⁸ Graphic Packaging Corp. v. Hegar , 538 S.W.3d 89, 104 (Tex. 2017) (quoting Central Power & Light Co. v. Public Util. Comm'n , 649 S.W.2d 287, 289 (Tex. 1983) ). Thus, the lack of an express statutory provision authorizing the Commission to cancel a permit granting unperfected water rights does not prevent the Legislature from enacting a law that effectively cancels the City's rights under the permit by requiring them to be contractually transferred to BRA, so long as the law satisfies constitutional and federal law. And the City is presumed to know this law. Philadelphia Indem. Ins. v. White , 490 S.W.3d 468, 483 (Tex. 2016) ("[P]arties are presumed to know the law[.]" (quoting Texas Emp'rs Ins. Ass'n v. Tabor , 283 S.W. 779, 780 (Tex. Comm'n App. 1926) )). Especially given the unique circumstances of the Legislature's involvement with the Allens Creek Reservoir project for over 20 years, I cannot conclude that the City had a legitimate claim of entitlement that rose to the level of a vested property right against the State. Accordingly, I would hold that the City's asserted prior right is "not a vested property right to which the ... prohibition on retrospective laws appl[ies]." Cf. Honors Academy , 555 S.W.3d at 68.

8 H.B. 2846 amended S.B. 1593 by adding an additional section directing the City to contract with BRA. See Act of May 22, 1999, 76th Leg., R.S., ch. 1291, § 1.01, 1999 Tex. Gen. Laws 4426, amended by Act of May 16, 2019, 86th Leg., R.S., ch. 380, § 1, 2019 Tex. Gen. Laws 688, 688.

CONCLUSION

H.B. 2846 and the circumstances leading up to it are, no doubt, novel exercises of legislative authority, and the Legislature's policy of enacting H.B. 2846 may be reasonably questioned. But our role as judges is to evaluate the constitutionality of a law, not its policy. It is my opinion that, as written and interpreted by precedential authorities, the retroactivity prohibition relied on by the City does not prohibit H.B. 2846. I therefore respectfully dissent.