Supreme Court of Texas

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No. 19-1108

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Texas Commission on Environmental Quality and 

Dos Repúblicas Coal Partnership,

Petitioners,

v.

Maverick County, City of Eagle Pass, Environmental Defense 

Fund, Walter Herring, Ernesto Ibarra, Gabriel De La Cerda, 

Mike Hernandez, Boulware and Anson Family, Ltd., and 

Maverick County Environmental and Public Health Association, 

Respondents

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Third District of Texas

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Argued October 27, 2021

JUSTICE BLACKLOCK delivered the opinion of the Court.

In 2013, Dos Repúblicas Coal Partnership (DRCP) applied to the 

Texas Commission on Environmental Quality for renewal of a permit for 

wastewater discharge at a coal mine. TCEQ granted the permit. Years 

later, the primary question before this Court is whether, all along, 

DRCP was the correct permit applicant. We hold that it was.
2

The parties agree that TCEQ rules required both “the operator 

and the owner [of the facility]” to apply for a permit. 30 TEX. ADMIN.

CODE § 305.43(a). DRCP owns the mine. It hired a contractor to conduct 

day-to-day activities at the mine. The dispute is whether DRCP or the 

contractor is the mine’s “operator.” TCEQ’s rules define “operator” as 

“[t]he person responsible for the overall operation of a facility.” Id.

§ 305.2(24). TCEQ concluded that DRCP remains the mine’s operator 

because it retains overall responsibility for the mine’s operation despite 

having contracted away day-to-day duties. 

The court of appeals disagreed. Applying its precedent, it 

understood “operator” to mean “the entity responsible for [the] personal 

performance of causing the [facility] to function.” See Heritage on San 

Gabriel Homeowners Ass’n v. Tex. Comm’n on Env’t Quality, 393 S.W.3d 

417, 430 (Tex. App.—Austin 2012, pet. denied). Because DRCP hired a 

contractor to personally perform the daily running of the mine, the court 

of appeals concluded that the contractor is the mine’s “operator” and 

therefore a required—but absent—permit applicant.

When a statute or rule defines its terms, courts should not 

construct a restated definition using alternative verbiage that adds or 

subtracts substantive requirements or limiting factors. The court of 

appeals erred by substituting a judicially crafted definition of “operator” 

for the definition provided by TCEQ’s rules. Even if the definition 

supplied by the rule’s drafters leaves room for interpretation in some 

cases, the touchstone must remain the text of the definition—not a 

judicial paraphrase of it.
3

Applying the rule’s definition of “operator” to this case, we hold 

that substantial evidence supports TCEQ’s conclusion that DRCP—

despite having contracted out the day-to-day running of the mine—

remains “responsible” for the “overall operation” of the mine. The 

“personal performance” requirement proposed by Respondents imposes 

an additional limiting factor not dictated by the rules themselves. By 

requiring that a permit applicant have responsibility only for the 

facility’s overall operation, the rule is best read to reject—rather than 

embrace—the narrowing “personal performance” requirement that 

dictated the outcome below. The judgment of the court of appeals is 

reversed, and the case is remanded to that court for consideration of the 

parties’ remaining arguments.

I.

The Legislature authorized TCEQ to “issue permits and 

amendments to permits for the discharge of waste or pollutants into or 

adjacent to water in the state.” TEX. WATER CODE § 26.027(a). As for 

who must apply for such a permit or what a permit application will look 

like, the Legislature vested TCEQ with broad discretion: “A person 

desiring to obtain a permit or to amend a permit shall submit an 

application to [TCEQ] containing all information reasonably required by 

[TCEQ].” Id. § 26.027(b). TCEQ has adopted administrative rules 

governing applications for a “Texas Pollutant Discharge Elimination 

System” (TPDES) permit, the permit for which DRCP applied. See 

generally 30 TEX. ADMIN. CODE § 305.1 et seq. One such rule—which the 

parties agree applies here—is that “it is the duty of the operator and the 

owner to submit an application for a permit.” Id. § 305.43(a).
4

Once TCEQ’s executive director determines an application is 

“administratively complete,” the applicant must provide public notice of 

its intent to obtain the permit. TEX. WATER CODE § 5.552(b)(1). The 

executive director then “shall conduct a technical review of and issue a 

preliminary decision on the application.” Id. § 5.553(a). The applicant 

must publish notice of the preliminary decision, which is then subject to 

public comment. Id. § 5.553(b)–(c). A public meeting and a contested 

case hearing may follow. See id. §§ 5.554 (requiring public meetings 

during the comment period), 5.556(a) (allowing for contested case 

hearings).

In 2009, DRCP acquired a coal mine in Maverick County. It 

contracted with Camino Real Fuels, LLC (CRF) to “develop, construct, 

operate and perform on-going reclamation at the Mine and to remove 

and deliver coal from the Mine” to DRCP. The mine is near the City of 

Eagle Pass. Wastewater from the mine may flow into nearby waterways 

that feed into the Rio Grande River, from which the City gets its water 

supply. Because of these wastewater discharges, DRCP needed a 

TPDES permit. See id. § 26.121.

DRCP’s predecessor held a TPDES permit for the mine dating to 

1994 (renewed in 2001, 2006, and 2011) that was set to expire on 

September 1, 2015. DRCP alone applied for the renewal of the permit. 

DRCP started the renewal process in September 2013. Relative to the 

existing permit, DRCP requested permission to alter its wastewater 

management practices in various ways, the technicalities of which are 

not relevant to our decision.
5

In January 2014, TCEQ’s executive director determined DRCP’s 

application administratively complete. See id. § 5.552(a). The executive

director completed his technical review in December 2014, after which 

he issued a “Notice of Application and Preliminary Decision.” See id.

§ 5.553(a). This document granted a “draft permit” and gave notice of a 

public meeting on the permit. See id. § 5.553(b)–(c) (requiring notice of 

public meeting). During the meeting, TCEQ took public comments. See 

id. §§ 5.554, 5.555(a) (requiring the executive director to respond to 

relevant and material public comments).

At relevant times during the administrative process, Maverick 

County, the City of Eagle Pass, the Environmental Defense Fund, 

Walter Herring, Ernesto Ibarra, Gabriel De La Cerda, Mike Hernandez, 

Boulware and Anson Family, Ltd., and the Maverick County 

Environmental and Public Health Association (collectively “Permit 

Contestants”) opposed the permit. See id. § 5.556(a), (c), (d) (authorizing 

“affected person[s]” to contest the executive director’s decision or request 

a contested case hearing). They challenged TCEQ’s conclusion that 

DRCP was the mine’s “operator” and raised many other environmental 

and property-rights complaints. 

On January 15, 2015, DRCP requested that TCEQ refer the 

application to SOAH for a contested case hearing. Id. § 5.557(a). Permit 

Contestants were admitted as parties. In November 2015, two 

administrative law judges held a four-day hearing. In addition to 

considering a variety of substantive objections to the permit, the ALJs 

considered whether DRCP’s contractor, CRF, should have applied as the 

mine’s “operator.” 
6

In April 2016, the ALJs issued a proposal for decision (PFD), 

recommending TCEQ grant the permit with “the addition of a boron 

limit and a requirement that aluminum be monitored.” On the 

“operator” question, the ALJs found that DRCP was both the owner and 

the operator of the mine. They noted that while CRF performed the 

day-to-day work of running the mine, CRF was merely a contractor 

acting under DRCP’s direction. The ALJs acknowledged testimony that 

DRCP only had “financial responsibility” for the mine, while CRF had 

“operational responsibility.” They pointed to other evidence, however, 

tending to show that DRCP was responsible for the overall operation of 

the mine despite CRF’s responsibility for day-to-day activities: 

DRCP is solely responsible for the acquisition and 

maintenance of all interests and rights in real property and 

the reserves, provides its requirements and expectations to 

CRF, approves every plan and budget prior to the 

incurrence of any costs by CRF, pays all actual costs during 

design and construction of the Mine, pays all operation 

costs during production at the Mine, and is required to 

retain, maintain, and comply with all permits.

PFD at 16. The ALJs also noted that a DRCP representative visits the 

mine daily to provide oversight.

TCEQ largely agreed with the PFD, but it found that the boron 

limit and aluminum monitoring requirements were unnecessary. See 

TEX. GOV’T CODE § 2003.047(m) (authorizing TCEQ to amend factual 

findings contained in a PFD). TCEQ instead required water-quality 

testing periodically over the life of the permit. In July 2016, TCEQ 

issued a final order granting DRCP’s application with modifications.

Permit Contestants sued TCEQ in Travis County District Court. 

See id. § 2001.171 (authorizing judicial review of a final decision in a 
7

contested case). DRCP intervened. Permit Contestants raised the same 

issues they raised before SOAH, with the addition of an objection to 

TCEQ’s modification of the PFD. The district court held that DRCP was 

not the mine’s operator and that TCEQ’s decision to the contrary “was 

not reasonably supported by substantial evidence considering the 

reliable and probative evidence in the record as a whole, and was 

arbitrary and capricious.” The district court affirmed TCEQ’s decision 

on all other issues. Cf. id. § 2001.174 (reviewing court may affirm in 

whole or in part or reverse or remand for further proceedings).

Both sides appealed. 628 S.W.3d 497, 500 (Tex. App.—Austin 

2019). DRCP and TCEQ appealed the “operator” issue. Id. Permit 

Contestants appealed on issues affirmed by the district court. Id. The 

court of appeals affirmed the district court’s holding that DRCP was not 

the “operator” of the mine. Id. Relying on its prior decision in Heritage

v. TCEQ, 393 S.W.3d 417, the court of appeals understood “operator” to 

mean “the entity responsible for its personal performance of causing the 

[facility] to function.” 628 S.W.3d at 506. Applying this definition, the 

court of appeals concluded that substantial evidence did not support 

TCEQ’s finding that DRCP was the mine’s operator. Id. at 511. As a 

result, the application lacked the required applicant and should have 

been denied. Id. at 511–12. Having concluded that the permit should 

not have been granted regardless of its substantive content, the court of 

appeals held it lacked jurisdiction over the remaining issues regarding 

the content of the permit. It vacated the district court’s judgment as to 

those issues. Id. at 512.
8

TCEQ and DRCP ask this Court to reinstate TCEQ’s decision in 

its entirety. They argue that the court of appeals departed from the 

plain text of TCEQ’s administrative definition of “operator” by 

employing the court’s own definition. They also complain of the court of 

appeals’ application of the substantial-evidence rule. Permit 

Contestants contend that Heritage’s “more precise” definition of 

“operator” controls and, applying that definition, there is no substantial 

evidence to support TCEQ’s conclusion that DRCP is the mine’s 

operator. The parties also dispute whether the court of appeals should 

have—and, indeed, could have—addressed Permit Contestants’

remaining issues after ruling on the “operator” issue.

II.

Courts reviewing agency action under the Administrative 

Procedure Act may reverse or remand agency orders, and: 

shall reverse or remand the case for further proceedings if 

substantial rights of the appellant have been prejudiced 

because the administrative findings, inferences, 

conclusions, or decisions are:

(A) in violation of a constitutional or statutory 

provision;

(B) in excess of the agency’s statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial 

evidence considering the reliable and probative 

evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse 

of discretion or clearly unwarranted exercise of 

discretion.

TEX. GOV’T CODE § 2001.174(2). 
9

The parties agree that we should review TCEQ’s conclusion that 

DRCP is the mine’s “operator” under subpart E, which asks whether the 

agency’s decision is “reasonably supported by substantial evidence.” 

When applying the substantial-evidence rule, “a court may not 

substitute its judgment for the judgment of the state agency on the 

weight of the evidence on questions committed to agency discretion.” Id. 

§ 2001.174. “The true test is not whether the agency reached the correct 

conclusion, but whether some reasonable basis exists in the record for 

the action taken by the agency.” Tex. Health Facilities Comm’n v. 

Charter Med.–Dall., Inc., 665 S.W.2d 446, 452 (Tex. 1984).

III.

The parties’ arguments can be distilled into three questions: 

(1) how to define “operator”; (2) whether there was substantial evidence 

that DRCP is the mine’s “operator”; and (3) whether the court of appeals 

should have ruled on the remaining issues. We address each question 

in turn.

A.

Before we can apply the substantial-evidence rule to TCEQ’s 

decision that DRCP is the mine’s operator, we must understand the 

meaning of the word “operator,” as TCEQ’s rules use it. This definitional 

inquiry raises a predicate legal question, which we address de novo. See 

R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water, 336 

S.W.3d 619, 624 (Tex. 2011).

The Legislature conferred on TCEQ very broad discretion to set 

the requirements for permit applications of this sort. See TEX. WATER 

CODE § 26.027(b). Applicants must “submit an application [] containing 
10

all information reasonably required by [TCEQ].” Id. The Legislature 

authorized TCEQ to promulgate rules governing TPDES permits. See 

id. §§ 26.011, 26.027. TCEQ has done so. See generally 30 TEX. ADMIN.

CODE § 305.1 et seq. Despite its broad statutory authority over 

applications, once TCEQ promulgates rules governing the application 

process, it must follow them. TEX. WATER CODE § 5.234 (“An 

application . . . shall be presented to the executive director and handled 

as provided . . . in the rules adopted by the [TCEQ].”). This case is about 

whether it did so.

Courts interpret agency regulations “using the same principles 

we apply when construing statutes.” Patients Med. Ctr. v. Facility Ins. 

Co., 623 S.W.3d 336, 341 (Tex. 2021). The starting point is the rule’s 

plain text. TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 

(Tex. 2011). As with statutes, when a rule “assigns a particular meaning 

to a term, we are bound by” it. Id. It is often stated that courts will 

uphold an agency’s interpretation of its own rule if the interpretation “is 

reasonable and does not contradict [the rule’s] plain language.” R.R. 

Comm’n, 336 S.W.3d at 625 (quotation omitted). Even so, courts must 

first determine what the rule’s text means before they can decide 

whether the agency’s interpretation contradicts the text. See, e.g., 

Harris Cnty. Appraisal Dist. v. Tex. Workforce Comm’n, 519 S.W.3d 113, 

119 (Tex. 2017). 

The rule at issue requires both “the operator and the owner [of 

the facility]” to apply for a TPDES permit. 30 TEX. ADMIN. CODE
11

§ 305.43(a).1 Another provision defines the term “operator” as “[t]he 

person responsible for the overall operation of a facility.” Id. § 305.2(24). 

In a dispute over who must apply as the “operator,” courts are bound by 

the definition provided in TCEQ’s rules, just as they are bound when the 

Legislature defines terms in a statute. See Combs, 340 S.W.3d at 439.

Following its precedent, the court of appeals understood 

“operator” to mean “the entity responsible for its personal performance 

of causing the facility to function.” 628 S.W.3d at 505 (quoting Heritage, 

393 S.W.3d at 430). In Heritage, landowners challenged TCEQ’s order 

concluding that Waste Management was the “operator” of a landfill. 393 

S.W.3d at 422, 426.

2 The court of appeals agreed with TCEQ. In so 

1 The full text of the relevant provision is:

(a) It is the duty of the owner of a facility to submit an 

application for a permit or a post-closure order. However, if the 

facility is owned by one person and operated by another and the 

executive director determines that special circumstances exist 

where the operator or the operator and the owner should both 

apply for a permit or a post-closure order, and for all Texas 

Pollutant Discharge Elimination System permits, it is the duty 

of the operator and the owner to submit an application for a 

permit.

The parties agree that only the final portion of the provision, specific to TPDES 

permits, applies here.

2 Petitioners argue that Heritage has no application here because it 

involved a different category of permit. But the disputed definition of 

“operator” applies to both wastewater and solid-waste permits. See 30 TEX.

ADMIN. CODE § 305.2 (“The following words and terms, [including ‘operator,’] 

when used in this chapter, have the following meanings.”); see also RSUI 

Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 126 (Tex. 2015) (“Generally, the 

law recognizes ‘a natural presumption that identical words used in different 

parts of the same act are intended to have the same meaning.’” (quoting Atl. 

Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932))). 
12

doing, it relied on dictionary definitions of “operates”—“to cause to 

function usu[ally] by direct personal effort”—and “operation”—“doing or 

performing especially of action.” 393 S.W.3d at 428–30 (citing 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002)). After 

lengthy analysis, the court summarized its understanding of “operator” 

using the “personal performance” language quoted above. Id. at 430.3

It bears noting that Heritage affirmed TCEQ’s decision that 

Waste Management was the “operator” and therefore the correct 

applicant. When Heritage is read in its context, as all judicial decisions 

should be, the court employed the “personal performance” concept not to 

exclude parties from the definition of “operator” but to explain why the 

definition included Waste Management. And it did so within a statutory 

scheme that gives TCEQ remarkably broad discretion to determine 

which entities must file applications. See TEX. WATER CODE § 26.027(b).

Nevertheless, the court of appeals below applied the “personal 

performance” paraphrase as if it were the governing definition of 

“operator.” Applying Heritage in this way was error. A judicial 

paraphrase of a legislatively supplied rule of decision—no matter how 

well-reasoned or suitable to the case then before the court—does not 

become the rule of decision applicable to future cases. That role is 

reserved for the text chosen by the Legislature—or, in this case, by an 

3 Even if the court of appeals was correct that DRCP was the wrong 

applicant, Permit Contestants would only be entitled to relief under the APA 

“if substantial rights of the appellant have been prejudiced because” of the 

error. TEX. GOV’T CODE § 2001.174(2). Petitioners have not argued that 

Permit Contestants do not satisfy this requirement, and we express no opinion 

on that question. 
13

agency acting with the Legislature’s permission. See PHI, Inc. v. Tex. 

Juv. Just. Dep’t, 593 S.W.3d 296, 305 (Tex. 2019) (holding that a 

description of a statute in a judicial “opinion is not itself the rule of 

decision. That role is reserved for the statute.”).

Here, the governing definition of “operator,” to which courts are 

not free to add or subtract verbiage, is “[t]he person responsible for the 

overall operation of a facility.” 30 TEX. ADMIN. CODE § 305.2(24). 

Relative to the definition provided by the rule, the Heritage

reformulation injects the limiting principle of “personal performance.” 

The effect on the definition is to replace the rules’ use of “overall 

operation” with the court’s use of “personal performance.” 

Understanding “operation” to mean solely “personal performance” may 

make it easier to identify the operator by clarifying and limiting the 

scope of what counts as “operation.” But a court’s principal goal when 

interpreting text is not to achieve simplicity or ease of application—

though these would be by-products of a well-drafted rule. Instead, a

court’s duty is to stick to the text chosen by the rule-makers, without 

adding to it or subtracting from it. 

So what does it mean to be “responsible for the overall operation 

of the facility”? Permit Contestants argue that “operation” entails 

“flipping the switches”—personally performing the tasks required to 

operate the facility. TCEQ and DRCP, on the other hand, argue that 

“operation” entails the ultimate authority to make decisions about how 

the facility will be operated. In a vacuum, neither is an unreasonable 

understanding of the word “operation.” But we are not in a vacuum. We 

are applying the text of the rule. And the rule itself tells us what kind 
14

of operation it envisions—“overall operation.” We need look only at the 

modifier “overall,” a word chosen by the rulemakers, to resolve the 

parties’ disagreement about the rule’s meaning.4

The question, properly framed, is not what “operation” means. 

Looking at the entire definition, the questions are what “overall 

operation” means, and what it means to be “responsible” for it. When 

we focus on all the words contained in the rule—not on dictionaries 

defining one of them—it becomes clear that TCEQ’s approach is 

well-supported by the text of its rule. The court of appeals erred by 

excluding from “operator” those entities who are responsible for overall 

operations even though they may not conduct daily operations.5

4 Permit Contestants argue that the Court should look to the federal 

Environmental Protection Agency’s (EPA) view of “operator” because TCEQ 

amended its rules to include the operator requirement at the behest of the 

EPA. See 15 Tex. Reg. 5492, 5493 (1990). Permit Contestants assert that 

“EPA’s understanding as early as 1980 was that operational control, not 

financial or some other class of control, was the marker of an entity that needed 

to apply for the permit.” Even so, EPA’s definition is not any narrower than 

TCEQ’s. As the court of appeals noted, “[t]he federal regulations do not 

specifically define ‘operator’ as distinct from ‘owner’; rather, a definition is 

provided for ‘owner or operator,’ which ‘means the owner or operator of any 

facility or activity subject to regulation under the NPDES program.’” 628 

S.W.3d at 504 n.6 (quoting 40 C.F.R. § 122.2). And, EPA reviewed and had no 

objection to the draft permit here.

5 TCEQ advances its own restatement of the rule’s definition of 

“operator”: “an entity (owner or not) that is liable to be called on to answer, in 

general and taking everything into account, for the mine’s management or 

manner of functioning.” We decline to adopt that formulation, not because of 

any obvious defect in its substance, but because doing so would risk falling into 

the same error as the court of appeals. TCEQ’s proffered paraphrase is full of 

words not contained in the rule itself, such as “liable,” “in general,” and 

“management.” Such concepts may be helpful, in some cases, to courts 

grappling with what it means to be “responsible for the overall operation of the 
15

B.

We next address whether substantial evidence supports TCEQ’s 

conclusion that DRCP was the mine’s operator. “The question whether 

an agency’s determination meets [the substantial-evidence] standard is 

one of law.” Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 

(Tex. 2000). Under substantial-evidence review, we consider “whether 

any evidence supports the [agency’s] determination.” Pub. Util. Comm’n 

v. Tex. Indus. Energy Consumers, 620 S.W.3d 418, 427 (Tex. 2021). We 

ask “not whether the agency’s decision is correct, but whether the record 

demonstrates a reasonable basis for it.” Ne. Indep. Sch. Dist. v. Riou, 

598 S.W.3d 243, 251 (Tex. 2020). “The findings, inferences, conclusions, 

and decisions of an administrative agency are presumed to be supported 

by substantial evidence, and the burden is on the contestant to prove 

otherwise.” Charter Med.–Dall., Inc., 665 S.W.2d at 453.

In the Findings of Fact section of its Order granting the permit, 

TCEQ concluded the following:

40. Based on the Contract Mining Agreement signed by Mr. 

Gonzalez Saravia Coss, DRCP is solely responsible for the 

acquisition and maintenance of all interests and rights in 

real property and the reserves, provides its requirements 

and expectations to CRF, approves every plan and budget 

prior to the incurrence of any costs by CRF, pays all actual 

costs during design and construction of the Eagle Pass 

Mine, pays all operation costs during production at the 

facility.” In other cases, undue focus on these extraneous words might inject 

limiting or expanding factors not justified by the text of the rule. If TCEQ 

wants to amend its rules’ definition of “operator” to include these additional 

concepts, it should do so through the appropriate process, not through 

litigation. 
16

Eagle Pass Mine, and is required to retain and maintain 

all permits.

41. DRCP has an office in Eagle Pass, and a DRCP 

representative visits the site on a daily basis to oversee all 

the functions for which it has responsibility.

42. DRCP has ownership and control of mine operations, 

including activities subject to the TPDES permit; has 

responsibility over permit compliance, including the 

TPDES permit; is integrally involved in the activities at 

the Eagle Pass Mine; and has financial responsibility over 

the operations at the Eagle Pass Mine.

Based on these findings of fact, TCEQ concluded that DRCP was the 

proper permittee as both the mine’s owner and its operator.

Permit Contestants object to TCEQ’s conclusion primarily 

because, in their view, it cannot be squared with Heritage’s emphasis on 

personal performance, which they contrast with financial responsibility 

or high-level oversight. We have already explained why the court of 

appeals should not have viewed “operation” as entailing only personal 

performance. Any analysis of the evidence through the Heritage lens is 

therefore unhelpful, and this renders most of Permit Contestants’ 

arguments about the evidence inapposite.6 As explained above, the 

rule’s definition of “operator” includes the decision-making entity with 

responsibility for overall operations, even if that entity is not personally 

performing the operations. This understanding of who qualifies as an 

6 Respondents come close to conceding that, unless Heritage’s 

understanding of “operator” controls, they cannot win under the substantialevidence rule. See Maverick Cnty. Resp. Br. at 11 (“Unless the court of appeals 

was wrong in its understanding of the meaning of ‘operator,’ the evidence to 

which Petitioners point to claim that DRCP is the operator just does not reach 

the ‘scintilla’ level; it is so weak as to do no more than create a mere surmise 

or suspicion of the fact it is claimed to support.”).
17

“operator” must inform the inquiry into whether substantial evidence 

supports the conclusion that DRCP is one.

Viewing the record as a whole and employing an understanding 

of “operator” based solely on the rule’s text, we hold that substantial 

evidence in the record supports TCEQ’s conclusion that DRCP is the 

mine’s operator. As noted above, TCEQ made several findings of fact in 

support of its conclusion that DRCP is the mine’s “operator.” DRCP 

owns the mine and “control[s]” mine operations, including activities 

subject to the TPDES permit. DRCP is “integrally involved in the 

activities” at the mine. In addition to having “financial responsibil[ity]”

for mine operations,7 DRCP must approve each plan and budget before 

CRF may incur costs. DRCP “provides its requirements and 

expectations to CRF.”8 DRCP is “solely responsible” for the acquisition 

and maintenance of all interests and rights in real property and 

reserves. DRCP is responsible for TPDES permit compliance. DRCP 

retains and maintains all permits. And finally, a DRCP representative 

from DRCP’s Eagle Pass office “visits the site on a daily basis to oversee 

7 The parties and the court of appeals focus on a distinction between 

“financial responsibility” and “operational responsibility.” We need not explore 

that distinction, however, because even assuming the distinction is valid, some 

evidence supports the conclusion that DRCP retained operational control—

particularly, the requirement that it approve plans and budgets, its provision 

of requirements and expectations to CRF, its responsibility for permit 

compliance, and the daily presence of its representative to provide oversight.

8 A DRCP officer described the relationship: “DRCP provides its 

requirements and expectations to CRF. For example, this could relate to 

amount of coal required. Based on these requirements, CRF develops a mine 

plan in which it describes the necessary steps to comply with DRCP’s 

expectations. . . . DRCP must, however, approve the plan and budget prior to 

the incurrence of any costs by CRF.”
18

all the functions for which [DRCP] has responsibility.” See TCEQ Order, 

Findings of Fact at 5, findings 40–42.9

All of this evidence together demonstrates “a reasonable basis in 

the record” on which TCEQ could have concluded that DRCP is not 

merely a passive owner who has given responsibility for overall 

operations to someone else. Instead, substantial evidence supports 

TCEQ’s conclusion that DRCP was the entity “responsible for the overall 

operation of the facility” and therefore the correct permit applicant.

C.

Permit Contestants raised several other objections to substantive 

elements of TCEQ’s decision, such as whether TCEQ properly conducted 

its “antidegradation review” and whether the permit should impose 

stricter limits on aluminum and boron. The district court affirmed 

TCEQ’s decision on all these issues. 

After holding DRCP was not the mine’s operator and thus the 

incorrect permit applicant, the court of appeals decided it could not 

reach the remaining issues and vacated the part of the district court’s 

judgment addressing them. 628 S.W.3d at 512. The court of appeals 

held that addressing the remaining issues would amount to rendition of 

an advisory opinion. For this proposition, it cited only the general 

prohibition on advisory opinions. See Valley Baptist Med. Ctr. v. 

9 Maverick County makes a token effort in this Court to contest these 

fact findings as unsupported by the record. It does not explain how the findings 

are unsupported, however, instead merely asserting that the findings 

overstate or misstate the record evidence. The burden is on Permit 

Contestants to show that TCEQ’s findings are not supported by substantial 

evidence. Charter Med.–Dall., Inc., 665 S.W.2d at 453. They have failed to 

make that showing here. 
19

Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (“Under article II, section 1 of 

the Texas Constitution, courts have no jurisdiction to issue advisory 

opinions.”).

TCEQ, joined by DRCP, argues that the court of appeals erred by 

failing to address the remaining issues. They contend the court of 

appeals had jurisdiction to reach these issues, and they ask this Court 

to reach them even though the court of appeals did not. Although we 

decline to reach the remaining issues, we hold that the court of appeals 

did not lack jurisdiction to reach them and therefore could have done so. 

The APA provides that a court reviewing an agency decision after 

a contested case “may affirm the agency decision in whole or in part.” 

TEX. GOV’T CODE § 2001.174(1). The district court exercised its 

authority under this provision by affirming TCEQ’s decision in part. 

Despite reversing on the improper-applicant issue, the district court 

affirmed TCEQ’s decision as to the remaining issues. To the extent the

court of appeals suggested the district court erred by reaching the 

remaining issues, we disagree. The APA plainly gave both the district 

court and the court of appeals the authority to affirm in part, as the 

district court did, even if other issues required partial reversal or 

remand to the agency. The only remaining question is whether, as the 

court of appeals suggested, a judicial ruling on the remaining issues 

violated the constitutional prohibition on advisory opinions. It did not. 

“The distinctive feature of an advisory opinion is that it decides 

an abstract question of law without binding the parties.” Tex. Ass’n of 

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). We see 

nothing “abstract” in the parties’ ongoing, vigorous dispute over TCEQ’s 
20

scientific and environmental findings regarding this mine. The parties 

are engaged in a lengthy, complicated, and very expensive 

administrative process, of which judicial review is but a part—and of 

which the parties’ scientific and environmental disputes are but a part. 

Cases like this one frequently bounce back and forth between the agency 

and the courts or between levels of the court system. It may turn out, 

when the dust settles, that one element or another of a court’s decision 

ended up being irrelevant to the ultimate outcome. That does not mean 

the court lacked jurisdiction to decide that part of the case. Even 

assuming the remaining issues were rendered superfluous by the court 

of appeals’ resolution of the “operator” question, the possibility remained 

that this Court would take a different view of the “operator” question, 

as we have done. The dispute over the remaining issues therefore 

remained live, and its resolution still impacted the parties’ rights—even 

though the extent to which it did depended on how the case progressed 

in the future. Resolving the remaining issues would not have amounted 

to an advisory opinion by the court of appeals.10 

10 See, e.g., In re Camp Lejeune, N.C. Water Contamination Litig., 2012 

WL 12869566, at *2 (N.D. Ga. May 11, 2012) (“While the court understands 

Plaintiffs’ concerns that the court is issuing an advisory opinion, it is not 

unusual for a court to rule on alternative arguments and the parties have 

briefed both arguments and provided oral argument to the court. Ruling on 

both arguments would allow the Court of Appeals to consider them at the same 

time rather than extending the litigation by returning to the district court and 

back up to the Court of Appeals a second time.”); cf. Cincinnati Life Ins. Co. v. 

Cates, 927 S.W.2d 623, 626 (Tex. 1996) (“We further conclude that the 

appellate court may consider other grounds that the movant preserved for 

review and trial court did not rule on in the interest of judicial economy.”).
21

The prudential practice of courts to decline to reach issues not 

necessary to the disposition of a case should not be confused with the 

constitutional prohibition on advisory opinions. There is overlap 

between the two, of course. But particularly in a complex administrative 

appeal, litigation would become unmanageable if it were the rule that 

every issue not strictly necessary to each court’s disposition of the case 

were beyond that court’s constitutional power to decide. The court of 

appeals erred by vacating the district court’s judgment as to the 

remaining issues. Both the district court and the court of appeals had 

jurisdiction to address those issues. The court of appeals could have

reached them. Whether the court of appeals was obligated to reach them 

is a separate issue, to which we now turn.

Petitioners argue the court of appeals was obliged to reach the 

remaining issues. It observes that the APA allows courts of appeals to 

“affirm the agency decision . . . in part.” TEX. GOV’T CODE § 2001.174(1). 

Petitioners argue that “in part” carries with it the premise that the other

part of the judgment reverses the remaining parts of the agency’s 

decision, suggesting that the entire decision has been reviewed. We do 

not read Section 2001.174(1) to obligate courts of appeals to reach all 

issues raised by the parties regardless of whether the issues are 

necessary to dispose of the appeal. The provision uses “may” in an 

apparent attempt to ensure courts have discretion to dispose of cases as 

they see fit. If the Legislature sought to impose a requirement—

unknown elsewhere in the law—that courts of appeals reach 

unnecessary issues, we would expect it to be much more clearly stated. 
22

TCEQ further contends that the court of appeals was obligated by 

Rule of Appellate Procedure 47.1 to reach the remaining issues. Rule 

47.1 requires courts of appeals to “hand down a written opinion 

that . . . addresses every issue raised and necessary to final disposition 

of the appeal.” TCEQ argues that resolution of the remaining issues was 

“necessary to final disposition of the appeal” because the improperapplicant problem did not infect the entire proceeding. TCEQ suggests 

the improper-applicant problem can be fixed on remand to the agency 

without necessarily disturbing TCEQ’s findings on other matters, 

although it does not clearly state how this would happen. Permit 

Contestants disagree. They argue that, if the applicant is improper, the 

entire process has been for naught and must be completely redone. If 

that is true, as they argue, then it was not necessary for the court of 

appeals to review TCEQ decisions that would need to be decided anew 

in a second proceeding.

We need not resolve this dispute, which raises doubtful questions 

of administrative procedure that would be better decided by this Court 

on more complete briefing. One way or another, the court of appeals’ 

judgment will be reversed, and this case will be remanded to the court 

of appeals for consideration of the remaining issues. Whether the court 

of appeals was obligated by Rule 47.1 to address those issues in the past, 

it appears it will be obligated to address them in the future—assuming 

the parties maintain their current positions. 

Finally, TCEQ and DRCP ask this Court to address the remaining 

issues without the benefit of the court of appeals having done so. “When 

presented with an issue the court of appeals could have but did not 
23

decide, we may either remand the case or consider the issue ourselves.” 

RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 124 (Tex. 2018) (citing 

TEX. R. APP. P. 53.4). “[O]rdinarily a case will be remanded to the court 

of appeals for further proceedings when we reverse the judgment of the 

appeals court and the reversal necessitates consideration of issues 

raised in but not addressed by that court.” State v. Ninety Thousand 

Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency 

($90,235), 390 S.W.3d 289, 294 (Tex. 2013). We conclude that our review 

of these issues, if it becomes necessary, would benefit from the court of 

appeals having addressed them first. We will take the ordinary course 

and remand the remaining issues for consideration by the court of 

appeals.

IV.

The judgment of the court of appeals is reversed. The part of the 

district court’s judgment vacated by the court of appeals is reinstated 

without regard to the merits. The case is remanded to the court of 

appeals for further proceedings consistent with this opinion.

James D. Blacklock

Justice

OPINION DELIVERED: February 11, 2022