1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-14-00176-CV

____________________

TEXAS RICE LAND PARTNERS, LTD., JAMES E. HOLLAND, DAVID C. 

HOLLAND, AND MIKE LATTA, Appellants

V.

DENBURY GREEN PIPELINE-TEXAS, LLC, Appellee

__________________________________________________________________ 

On Appeal from the 172nd District Court 

Jefferson County, Texas

Trial Cause No. E-181,923 

__________________________________________________________________ 

OPINION 

James E. Holland, David C. Holland, and Texas Rice Land Partners, Ltd.

(“Texas Rice”) own a Texas cattle ranch and rice farm. Mike Latta, a rice farmer, 

leases the property. Denbury Green Pipeline-Texas, LLC (“Denbury Green”)

sought to construct a carbon dioxide pipeline across the property. When Texas 

Rice refused to allow Denbury Green to survey the property, Denbury Green 

obtained a temporary injunction against Texas Rice. The trial court subsequently 
2

granted Denbury Green’s motion for summary judgment, finding that Denbury 

Green is a common carrier with the power of eminent domain. The trial court 

permanently enjoined Texas Rice from: (1) interfering or attempting to interfere

with Denbury Green’s right to enter and survey Texas Rice’s property; and (2) 

harassing Denbury Green while it conducts its survey.

This Court affirmed the trial court’s ruling, but the Texas Supreme Court 

developed a new test for determining common carrier status and reversed our 

decision on grounds that Denbury Green had not shown itself to be a common 

carrier under the new test. Tex. Rice Land Partners, Ltd. v. Denbury Green 

Pipeline-Texas LLC, 296 S.W.3d 877, 878 (Tex. App.—Beaumont 2009), rev’d,

363 S.W.3d 192 (Tex. 2012). On remand, Denbury Green again moved for 

summary judgment, alleging that it is a common carrier under the Texas Natural 

Resources Code and the Texas Business Organizations Code. The trial court 

granted Denbury Green’s motion, declared that Denbury Green is a common 

carrier under both statutory provisions and has the right of eminent domain as to 

the carbon dioxide pipeline, and dismissed Texas Rice’s counterclaims. In two 

appellate issues, Texas Rice challenges the trial court’s summary judgment ruling 

and final judgment. We reverse the trial court’s judgment and remand for further 

proceedings consistent with this opinion.
3

Factual Background

Ray Dubuisson, Denbury Green’s vice-president of land, testified that 

Denbury Green was formed for the purpose of owning a Texas pipeline. According 

to Dan Cole, Denbury Green’s vice-president of marketing and business 

development, Denbury Green is regulated as a common carrier by the Texas 

Railroad Commission and does not buy, sell, explore for, or produce carbon 

dioxide. He stated that the “Green Line” was proposed in 2008 as a pipeline to be 

“constructed, owned, and operated for the transportation of carbon dioxide from 

the Texas-Louisiana border, running west along the Gulf Coast, to the Oyster 

Bayou Unit in Chambers County, Texas, and on to the West Hastings Unit in 

Brazoria and Galveston Counties, Texas[.]” Denbury Onshore, LLC, with which 

Denbury Green is affiliated, owns the NEJD pipeline located in Mississippi and 

Louisiana and would own the Louisiana portion of the Green Line. Together, the 

Green Line and the NEJD pipeline would form a network to transport carbon 

dioxide from the Jackson Dome Unit in Mississippi and from other sources of 

anthropogenic carbon dioxide located along the Green Line’s route.

Cole stated that Denbury Onshore and other third-party leaseholders own 

interests in the West Hastings Unit and the Oyster Bayou Unit. John Armor, a joint 

interest advisor for ExxonMobil, testified that Denbury Onshore’s ownership 
4

interest in the West Hastings Unit is about eighty-nine percent and ExxonMobil 

owns about 9.7 percent. Denbury Onshore also operates the Jackson Dome Unit, 

but Cole stated that the carbon dioxide reserves in the Jackson Dome are also 

utilized by other working interest owners. In April 2008, the Railroad Commission 

granted Denbury Green’s permit to operate the Green Line, noting that Denbury 

Green had provided the filings necessary to be classified as a common carrier for 

transportation of carbon dioxide. Denbury Green completed the pipeline in 2010. 

Cole explained that the Green Line is located near oil fields whose owners 

are potential shippers and that “it was intended from inception that the proposed 

Green Line would transport carbon dioxide for hire[.]” Dubuisson also 

acknowledged the possibility that “other’s people’s” carbon dioxide would be 

transported through the pipeline. According to Cole, Denbury Green anticipated “a 

strong demand for carbon dioxide pipelines to carry carbon dioxide waste away 

from plants and refineries to oil fields where tertiary recovery operations were 

being conducted.” Cole stated that Denbury Green intended the Green Line to be 

used for not only transporting the carbon dioxide needed for tertiary operations in 

the West Hastings Unit and the Oyster Bayou Unit, but that the Green Line would 

also be used by other entities. Cole asserted that Denbury Green has (1) reserved 

space in the Green Line for other users; (2) always made the Green Line available 
5

to carbon dioxide owners for shipping; and (3) anticipated that plants, refineries, 

and other industrial facilities along the Green Line’s route are potential customers 

who may choose to use the Green Line for transport and pay Denbury Green for 

those transportation services. Additionally, Cole stated that Denbury Green 

transports, for a fee, carbon dioxide owned by Denbury Onshore and the other 

interest owners of the West Hastings Unit and the Oyster Bayou Unit. Cole 

believed Denbury Green would secure additional transportation agreements. 

Cole also explained that Airgas Carbonic, Inc. approached Denbury Green in 

2012 about using the Green Line to move its carbon dioxide from Airgas’s facility 

in Mississippi to another Airgas facility to be constructed in Texas. Airgas’s Texas 

facility would process liquid carbon dioxide for sale to its Houston-area customers.

In 2013, the parties entered into a contract in which Denbury agreed to transportcarbon dioxide from the Texas/Louisiana border to Airgas’s Texas facility. Airgas 

maintains title to the carbon dioxide being shipped to its Texas facility. Phil Filer, 

Airgas’s president, stated that Airgas manufactures and distributes liquid carbon 

dioxide and was using a Shell Refinery in Texas to convert gas into liquid. Filer 

explained that Airgas constructed its own liquid CO2 manufacturing plant in Texas 

once the Shell Refinery became unavailable and that Airgas would not have 
6

expended the resources needed to build its Texas facility if Airgas did not intend to 

use the Green Line for shipping. 

Cole further stated that, in 2008, Denbury Green and Air Products, LLC

began discussions regarding the use of the Green Line to transport anthropogenic 

carbon dioxide. In 2012, the parties entered into a contract whereby Denbury 

agreed to transport anthropogenic carbon dioxide to a meter in the West Hastings 

Unit. Cole explained that Air Products retains title to the carbon dioxide and that 

title is transferred at the West Hastings Unit. Gloria Power, the director of business 

development tonnage gases for Air Products, explained that, without the Green 

Line, it would not have been economically feasible for Air Products, a 

manufacturer and supplier of industrial gases, to participate in a capture and 

sequestration project with the United States Department of Energy. Power testified 

that the carbon dioxide transported to the West Hastings Unit is used by Denbury 

Onshore who pays Air Products for the carbon dioxide. She explained that once the 

carbon dioxide reaches the West Hastings Unit, it is initially used for enhanced oil 

recovery operations, but that all of the carbon dioxide is ultimately permanently 

sequestered underground in the West Hastings Unit when oil and gas operations 

are abandoned.
7

In its summary judgment, the trial court declared that Denbury Green is a 

common carrier under section 111.002(6) of the Texas Natural Resources Code 

and section 2.105 of the Texas Business Organizations Code. The Court found that, 

as a common carrier, Denbury Green has the power of eminent domain under 

section 111.019 of the Texas Natural Resources Code and the Green Line is a 

carbon dioxide common carrier pipeline that serves the public. 

Summary Judgment

In issue one, appellants contend that the trial court erred by granting 

summary judgment in favor of Denbury. We review a trial court’s ruling on a 

traditional summary judgment motion de novo. Provident Life & Accident Ins. Co. 

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We “consider whether reasonable and 

fair-minded jurors could differ in their conclusions in light of all of the evidence 

presented.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 

2007) (per curiam). We view the evidence in the light most favorable to the 

nonmovant, indulge every reasonable inference in favor of the nonmovant, and 

resolve any doubts against the motion. Id. at 756.

According to Denbury Green, section 2.105 of the Texas Business 

Organizations Code “provides an additional source of condemnation authority 

beyond that provided in the Natural Resources Code.” Section 2.105 provides, in 
8

pertinent part, that a limited liability company engaged as a common carrier in the 

pipeline business for the purpose of transporting carbon dioxide has all the rights 

and powers conferred on a common carrier by sections 111.019 through 111.022 of 

the Texas Natural Resources Code. Tex. Bus. Org. Code Ann. § 2.105 (West 

2012). Section 111.019 gives common carriers the power of eminent domain to

enter and condemn the land, rights-of-way, easements, and property of any person 

or corporation necessary for the construction, maintenance, or operation of a

common carrier pipeline. Tex. Nat. Res. Code Ann. § 111.019(a), (b) (West 2011). 

To exercise this right of eminent domain, an entity must meet the statute’s 

definition of “common carrier.” Id. § 111.002. A common carrier: 

owns, operates, or manages, wholly or partially, pipelines for the 

transportation of carbon dioxide or hydrogen in whatever form to or 

for the public for hire, but only if such person files with the 

commission a written acceptance of the provisions of this chapter 

expressly agreeing that, in consideration of the rights acquired, it 

becomes a common carrier subject to the duties and obligations 

conferred or imposed by this chapter[.]

Id. § 111.002(6). Thus, to have the right of eminent domain conferred by Chapter 

111, as referenced in section 2.105, an entity must still meet Chapter 111’s 

common carrier requirement. Accordingly, section 2.105 is not an independent 

basis for exercising eminent domain authority. See R.R. Comm’n of Tex. v. Moran 

Utils. Co., 728 S.W.2d 764, 767 (Tex. 1987) (“A statute must be harmonized with 
9

other relevant statutes, if possible.”); see also Howlett v. Tarrant Cnty., 301 

S.W.3d 840, 846 (Tex. App.—Fort Worth 2009, pet. denied) (“If the statutes share 

a common purpose or object, they must be harmonized if possible.”). 

Under the Texas Supreme Court’s new test for determining common carrier 

status pursuant to Chapter 111, “for a person intending to build a [carbon dioxide] 

pipeline to qualify as a common carrier under Section 111.002(6), a reasonable 

probability must exist that the pipeline will at some point after construction serve 

the public by transporting gas for one or more customers who will either retain 

ownership of their gas or sell it to parties other than the carrier.” Tex. Rice, 363 

S.W.3d at 202 (emphasis added). Thus, central to our inquiry is Denbury Green’s 

intent at the time of its plan to construct the Green Line. See id. This is particularly 

true, given that Texas Rice challenged Denbury Green’s common carrier status as 

early as mid-2008. (“[O]nce a landowner challenges [common carrier] status, the 

burden falls upon the pipeline company to establish its common-carrier bona fides 

if it wishes to exercise the power of eminent domain.”). Id. “[A] reasonable 

probability is one that is more likely than not.” Id. at 202 n.29.

Denbury Green presents several arguments in support of its contention that it 

is a common carrier under Texas Rice. According to Denbury Green, Airgas uses 

the Green Line to transport its own carbon dioxide to its own facility in Texas 
10

where it uses the carbon dioxide for its own purposes and Airgas retains ownership 

of the carbon dioxide at all times. The record demonstrates that the Green Line was 

first contemplated in 2008, but Airgas did not approach Denbury Green about 

transporting carbon dioxide until after the Green Line was completed. Tellingly, 

when Airgas raised the issue in an email sent after the Texas Supreme Court’s 

ruling, Airgas stated, “Given the recent ruling about your pipeline, I thought it 

might be advantageous for you to have another company transport some CO2 down 

this line.” As the Texas Supreme Court has noted, the professed use must be a 

public use in truth. Id at 202. We cannot say that the Airgas contract, reached after 

the Green Line’s completion, speaks to Denbury Green’s intent at the time of its 

plan to construct the Green Line. See id.

Denbury Green also contends that, because of the Green Line’s location near 

oil fields, a reasonable probability exists that carbon dioxide emitters could capture 

carbon dioxide emissions and ship those emissions through the Green Line to nonDenbury Green purchasers, other mature oil fields for tertiary recovery, or other 

sequestration locations. According to Denbury Green, it intentionally placed the 

Green Line near potential shippers, it intended to transport carbon dioxide for hire, 

it anticipated a demand for pipelines to carry carbon dioxide waste, and it believed 

additional transportation contracts would be reached. However, “property is taken 
11

for public use only when there results to the public some definite right or use in the 

business or undertaking to which the property is devoted.” Coastal States Gas 

Producing Co. v. Pate, 309 S.W.2d 828, 833 (Tex. 1958) (emphasis added).

Denbury Green’s subjective beliefs about what it anticipated and who might use 

the Green Line are mere conclusions and are not competent summary judgment 

evidence. See Tex. Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 

1994). Such subjective beliefs do not demonstrate, as a matter of law, a reasonable 

probability that, at the time Denbury Green intended to build the Green Line, the 

pipeline’s purpose was to serve the public. See Texas Rice, 363 S.W.3d at 202.

Additionally, Denbury Green asserts that, although the Green Line serves its 

affiliate Denbury Onshore, the Green Line also serves other West Hastings interest 

owners by transporting carbon dioxide from the Jackson Dome to the West 

Hastings Unit. Denbury Green contends that all of the interest owners, not just 

Denbury Onshore, use the carbon dioxide for enhanced oil recovery operations.

Moreover, Denbury Green argues that the anthropogenic carbon dioxide captured 

by Air Products is shipped to the West Hastings Unit and sold to Denbury Onshore 

on behalf of both Denbury Onshore and the other West Hastings interest owners 

for use in tertiary operations in the West Hastings Unit. Denbury Green maintains 

that Denbury Onshore and the other West Hastings interest owners are only 
12

incidental users of this carbon dioxide, given that sequestration is the ultimate end 

use.

Denbury Onshore does pay for and use the carbon dioxide that Air Products 

sends to the West Hastings Unit and it is not the only interest owner in either the 

Jackson Dome Unit or the West Hastings Unit. However, Denbury Onshore owns 

the majority interest in both the Jackson Dome Unit and the West Hastings Unit 

and is the operator of the West Hastings Unit, incurring the responsibility for dayto-day operations. Denbury Green’s agreements with Denbury Onshore, as shipper 

and operator of the West Hastings Unit, to transport carbon dioxide for a fee was 

ratified by four non-operator working interest owners of the West Hastings Unit.

Armor testified that ExxonMobil did not ratify these agreements; Denbury 

Onshore appeared to be purchasing carbon dioxide from itself; ExxonMobil does 

not have title to or possession of the carbon dioxide; and, ExxonMobil pays a 9.7 

percent interest in transportation and production costs.

Given evidence indicating that (1) Denbury Onshore owns the controlling 

interest in the West Hastings Unit and the Jackson Dome Unit, (2) a very small 

percentage of non-operator working interest owners ratified the transportation 

agreements, and (3) the other interest owners do not take title to or possession of 

the carbon dioxide, reasonable jurors could differ as to whether Denbury Green’s 
13

contracts with Air Products and Denbury Onshore are sufficient to establish an 

intent to serve the public. Specifically, the evidence raises a fact issue regarding 

whether the taking serves a substantial public interest. See Pate, 309 S.W.2d at 833 

(A taking of property for public use does not become a private use simply because 

a private entity benefits from the taking, as long asthe “public has a direct, tangible 

and substantial interest and right in the undertaking.”). The duty of weighing this 

evidence belongs to the jury. See Huckabee v. Time Warner Entm’t Co., L.P., 19 

S.W.3d 413, 422 (Tex. 2000) (“[T]rial courts must not weigh the evidence at the 

summary judgment stage.”).

“Issues of knowledge and intent are rarely appropriate for summary 

judgment.” Murray v. Cadle Co., 257 S.W.3d 291, 302 (Tex. App.—Dallas 2008, 

pet. denied). Only when reasonable minds cannot differ does the issue of intent 

become a question of law; otherwise, intent is a question of fact for the jury’s 

determination. Logan v. Mullis, 686 S.W.2d 605, 608 (Tex. 1985). In this case, 

viewing the evidence in the light most favorable to appellants and indulging every 

inference in their favor, we conclude that reasonable minds could differ regarding 

whether, at the time Denbury Green intended to build the Green Line, a reasonable 

probability existed that the Green Line would serve the public. See Tex. Rice, 363 

S.W.3d at 202; see also Mayes, 236 S.W.3d at 756; Logan, 686 S.W.2d at 608. 
14

Accordingly, summary judgment was improper. We sustain issue one and need not 

address appellants’ second issue.1 See Tex. R. App. P. 47.1. We reverse the trial 

court’s order granting summary judgment in favor of Denbury Green and remand 

the cause for further proceedings consistent with this opinion. 

REVERSED AND REMANDED.

 ________________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on December 18, 2014

Opinion Delivered February 12, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.

 1

In issue two, appellants maintain that a final judgment was granted on 

claims not presented in Denbury Green’s summary judgment motion.