This is a mandamus action brought by Sabine Offshore Service, Inc. to compel the officials of the City of Port Arthur to vacate a water rationing program in the Sabine Pass area. The trial court denied the relief and the Beaumont Court of Civil Appeals affirmed the judgment of the trial court. 582 S.W.2d 477. We reverse the judgment of the Court of Civil Appeals and remand the case to the trial court for a new trial.

Port Arthur, pursuant to article 1182a, annexed adjacent land which included the Sabine Pass area on May 15, 1978. Also, in accordance with article 1182c, it assumed control of the facilities of Jefferson County Fresh Water Supply District No. 1, which was supplying water to Sabine Pass.

At the time of annexation the Sabine Pass area was having some problems with inadequate water supply and pressure. In order to maintain adequate pressure for schools and homes the City adopted a Water Rationing Plan which affected only the industries in the Sabine Pass area.

Under this plan, Offshore, a company which supplied water to offshore drilling rigs and the largest user of water in the Sabine Pass area, was allowed to draw water only on alternate days. Competitors of Offshore in other areas within the city limits of Port Arthur were allowed to draw all the water they needed. This limitation seriously affected Offshore's business in the competitive market. No residences or schools either within or without the area were made subject to this plan.

The Court of Civil Appeals held that Sabine was not being discriminated against and upheld the trial court. The plan, made the basis of the Court of Civil Appeals opinion, was a plan adopted by Port Arthur on September 14. Port Arthur admitted to the Court of Civil Appeals, in its oral argument, that this plan was not implemented until October 20, which was after the trial court rendered its judgment. Under this plan Sabine could draw water daily except between the hours of 4 and 12 a. m. This plan was never presented to the trial court and is not in the record. There was, however, an affidavit disclosing the new plan which was filed in the Court of Civil Appeals and attached to Port Arthur's Motion to Dismiss the appeal as moot.

Affidavits outside the record cannot be considered by the Court of Civil Appeals for any purpose other than determining its own jurisdiction. Rule 406, Texas Rules of Civil Procedure, provides:

Motions made either to sustain or defeat the jurisdiction of the court, dependent on facts not apparent in the record and not ex-officio known to the court, must be supported by affidavits or other satisfactory evidence.

This Court has construed Rule 406 quite narrowly. In Rosenfeld v. Steelman, 405 S.W.2d 301 (Tex. 1966) we stated:

These provisions (of Rule 406) have been held to apply only to a determination by the Court of Civil Appeals of its own jurisdiction and not to a determination of the trial court's jurisdiction.

The Court of Civil Appeals should not have based its judgment upon evidence contained in affidavits not a part of the trial court record. This could only be considered by the Court of Civil Appeals for the purpose of determining whether the issue is moot, a jurisdictional question.

We regard the decision in this case to be in conflict with Texas Rules of Civil Procedure 406 and with Rosenfeld v. Steelman, 405 S.W.2d 301 (Tex. 1966). Accordingly, the writ of error is granted; and without hearing oral argument, we reverse the judgment of the Court of Civil Appeals.

Normally this Court would remand this case to the Court of Civil Appeals with instructions to consider only the evidence contained in the record; such an act in this case would be futile and not in furtherance of judicial economy. Since Port Arthur has instituted a "new" plan of water rationing upon which no evidence has been heard, we remand this case to the trial court for a new trial.

Summaries of

Sabine Offshore Serv v. City of Port Arthur

Supreme Court of Texas

Mar 19, 1980

595 S.W.2d 840 (Tex. 1980)

holding an appellate court may not consider matters outside the appellate record

Summary of this case from Arroyo v. State

holding that in an original proceeding, the appellate court may not consider evidence that was not part of the record before the trial court except to decide its own jurisdiction

Summary of this case from Hudson v. Aceves

holding that in an original proceeding, the appellate court may not consider evidence that was not part of the record before the trial court except to decide its own jurisdiction

Summary of this case from In re State ex rel. Tyler

holding that in an original proceeding the appellate court may not consider evidence that was not part of the record before the trial court except to decide its own jurisdiction

Summary of this case from In re Emex Holdings L.L.C.

holding that in an original proceeding the appellate court may not consider evidence that was not part of the record before the trial court except to decide its own jurisdiction

Summary of this case from In re Muñoz

finding that appellate court cannot consider matters outside record for any purpose other than determining its own jurisdiction

Summary of this case from Ellis v. Schlimmer

finding that appellate court cannot consider matters outside record for any purpose other than determining its own jurisdiction

Summary of this case from Morales v. Maldonado

recognizing that matters outside the record can be considered by a court in determining its own jurisdiction

Summary of this case from City of El Paso v. Waterblasting Techs., Inc.

noting appellate court may consider affidavit outside the record for purposes of determining jurisdiction

Summary of this case from Jackson v. Ken

stating we generally may not consider matters outside of the appellate record

Summary of this case from In re I.L.

explaining that "[a]ffidavits outside the record cannot be considered by the Court of Civil Appeals for any purpose other than determining its own jurisdiction"

Summary of this case from Arlitt v. Ebeling

noting that the court of appeals could consider affidavits outside the record only "for the purpose of determining whether the issue is moot, a jurisdictional question"

Summary of this case from Poff v. Cypress Four Prop. Ventures LLC

explaining that "[a]ffidavits outside the record cannot be considered by the Court of Civil Appeals for any purpose other than determining its own jurisdiction"

Summary of this case from Bailey v. Gasaway

noting that courts of appeals may not consider affidavits outside the record

Summary of this case from In re Marriage of Vick

noting that appellate courts generally cannot consider evidence not included in the trial-court record

Summary of this case from Cagle v. Andrews

prohibiting affidavits outside the record from being considered by appellate court for any purpose other than determining its own jurisdiction

Summary of this case from Bierwirth v. Fed. Nat'l Mortg. Ass'n

prohibiting affidavits outside the record from being considered by appellate court for any purpose other than determining its own jurisdiction

Summary of this case from Campbell v. Wells Fargo Bank, N.A.

noting that courts of appeals may not consider evidence outside the record

Summary of this case from Bacon v. Tex. Historical Comm'n

stating that affidavits outside the record cannot be considered by an appellate court for any purpose other than determining its own jurisdiction

Summary of this case from Warriner v. Warriner

stating matters outside of the record cannot be considered by appellate court for any purpose other than determining its own jurisdiction

Summary of this case from Kapoor v. Estate of Klovenski

stating "[a]ffidavits outside the record cannot be considered by the Court of Civil Appeals for any purpose other than determining its own jurisdiction"

Summary of this case from Meeker v. Tarrant County College Dist

stating that affidavits outside the record cannot be considered by appellate court for any purpose other than determining its own jurisdiction

Summary of this case from In Interest of J.R.O.

stating that affidavits outside the record cannot be considered by an appellate court for any purpose other than determining its own jurisdiction

Summary of this case from Wright v. State

declining to remand when futile and not in furtherance of judicial economy

Summary of this case from Nauslar v. Coors Brewing

declining to remand case to court of appeals because such "would be futile and not in furtherance of judicial economy"

Summary of this case from Tolbert v. Gibson

Sabine Offshore Serv v. City of Port Arthur

Summary

Opinion

Sabine Offshore Serv v. City of Port Arthur

Sabine Offshore Serv v. City of Port Arthur

Case Details

Citations

Citing Cases

Sabine Offshore Serv v. City of Port Arthur

Summary

Opinion

Sabine Offshore Serv v. City of Port Arthur

Sabine Offshore Serv v. City of Port Arthur

Case Details

CitationsCopy Citation

Citing Cases

Citations