### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00425- CV

SWEPI LP , Appellan t

v. Railroad Com m ission of T exas and Hi dalgo Coun ty, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0332 2, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

O P I N I O N

SW EPI L P appea ls from t h e d i s t rict court’s judgme nt aff irming final order s of appellee the Railroad Commi ssion of Texas and g ranting the Commi ssion’s plea to the jurisdiction

on SW EPI ’s decla

ratory claims. I n its final order s, the Commi ssion approve d two applications for

1 “qualifie d subdivisions ” pursuant to chapte r 92 of the natura l resour ces code and the Commi ssion’s companion rule 76. See Tex. Nat. Res. Code Ann. §§ 92.00 1 -. 0 0 7 (W est 2001) (“c hapter 92”);
16 Tex. Admin. Code § 3.76 (2009) (Tex. R.R. Comm’n, Commi ssion Approva l of Plats for Mineral
Deve lopment) (“r

ule 76”). Be cause we conclude that the district court did not err in aff irming the Commi ssion’s final order s and g ranting its plea to the jurisdiction, we af fi rm t he district court’s judg ment.

See Tex. Civ. Prac. & Rem. C o d e An n . § § 3 7.001-.011 (West 2008) (Texas Uniform 1 Dec lara tory J udg ments Act) (the “Act ”) ; Tex. Gov’t Code Ann. §§ 2001.001-.902 (West 2008 & Supp. 2009) ( Texas Administ rative Proc edure Act) ( the “APA” ).BACK GR OUND

Chapter 92 and Rule 76

We beg in by providing a brief o v e r v ie w o f the rele vant statutory scheme and common law to g ive context to the parties’ arg uments. Under the com m o n law, the mineral estate is dominant, and a mineral estate owner ’s rig ht to develop includes an implied rig ht to use the surfa ce
estate in way s rea sonably nece ssary to car ry out its opera

tions as long as the opera tions are consistent with the common law require ment to rea so n ab l y accommodate the curr ent uses of the surfa ce. See Getty Oil Co. v. Jones , 470 S.W .2d 618, 621 (Tex

. 1 9 7 1 ); Texas Genc o, LP v. Valence Operating Co. , 187 S.W .3d 1 1 8 , 1 2 1 -22 (Tex. App.—Waco 2006, pet. denied) (discussion of
“ac commodation doctrine” ); Davis v. Dev on Energy Prod. Co. , 136 S.W .3d 419, 423-24 (Tex. App.—Amar illo 2004, no pet.) (discussion of common law balanc e betwee n the mineral and surfa ce estates of the use of the surfa ce a

nd the ac commodation doctrine)

. I n 1983, the Texas L eg islature enac ted chapte r 92. See Tex. Nat. Res. Code Ann. §§ 92.001-.007 (“Miner al Use of Subdivided L and”). Chapter 92 provides a statutorily g rante d exception to the common law. I t provides a proce dure for owner s of surfa ce estates to limit mineral

es tate owner s’ use of the surfa ce based upon the surfa ce’ s future development, deleg ating administration of the proce dure to the Commi ssion. See id

. § 9 2

. 0 0 4. The commission has jurisdiction over oil and g as wells in Texas and persons owning or eng ag ed in drilling or opera ting oil and g as we lls in Tex as. See id . § 81.051 (West 2001) (“Jurisdiction of Comm ission”).

S ec tion 92.003 provides that “surf ace owner s of a parc el of land may cre ate a qualified subdivision on the land if a plat of the subdivision has been approve d by the railroa d

2commission and filed with the cler k of the county in which the subdivision is to be located.” See id

. § 92.003. Section 92.002(3) de fines a “ qualified subdivision” as follows:
(3) “Qua lified subdivision” means a tra ct of land of not more than 640 a cre s: (A) that is located in a county having a population in excess of 400,000, or in a county having a population in excess of 140,000 that border s a county having a populatio n i n ex ce ss of 400,000 or located on a barr ier island; (B ) that has been subdivided in a manner authorized by law by the surfa ce owner s for re sidential, commerc ial, or industrial use; and (C) that contains an opera tions site for eac h separ ate 80 acr es within the 640-ac re trac t and provisions for r o a d and pipeline ease ments to allow use of the ope rations site.

Id . § 92.002(3). Wit hin an approve d qualified subdivision , t h e mineral estate owner ’s use of the surfa ce is limit ed to “desig nated operations s ites for ex plorati o n , d ev elopm ent, and production of minerals and the desig nated ease ments only as nece ssary to adequately use the opera tions sites.” Id

. § 92.005. “‘O pera

tions site’ means a surfa ce are a of two or more a cre s located in whole or in pa rt within a qualified subdivision, desig n at ed on the subdivision plat, that an owner of a possessory mineral interest may use to explore for and produce minerals.” Id

. § 92.002(1). An application to 2

cre ate a qualified subdivisio n “m u s t be acc ompanied by a plat of the subdivision showing the applicant’ s proposed location of opera tions sites and road and pipeline ease ments.” Id. § 92.004(a)

.
“‘Possessory mineral int ere st’ means a m i n er al i ntere st that includes t he right t o use t he 2 land surfa ce for exploration and production of minerals.” Tex. Nat

. Res. Code Ann. § 92.002(2) (West 2001). 3After notice to the applicant and owner s of possessory mineral interests, the

Commi ss i o n m u s t h o l d a hearing on the application to “conside r t he adequac y of t he number and location of opera tions sites and road and pipeline ease ments.” See id

. § 92. 0 0 4 (b ). “A ft er considering the evidenc e, the commission shall approve , reje ct, or amend the application to ensure that the mineral resour ces of the subdivision are fully and eff ectively exploi ted.” Id

. An applicant

or owner of a possessory mineral interest may appea l the Commi ssion’s order “as provided by law.” Id .; see also Tex. Gov’t Code Ann. § 20 0 1

. 1 7 1 (W es t 2008) (judicial revie w of state
ag ency decisions). The Commi ssion adopted rule 76 to implement chapte r 92. See 16 Tex. Admin. Code § 3.76; see also Tex. Nat. Res. Code Ann. § 92.004(a) (commission c harg ed with a dopting rules). The subsections of rule 76 at issue substantively trac k the lang uag e in the corr esponding sections in chapte r 92. With t his context , we turn to the pa rties’ dispute.
The Controversy

I n 2004, Be tty Ey

horn acquir ed t h e s u rface estate of 1,280 contig uous acr es of dry far m land in Hidalg o County

. Boston Texas L and and Trust owns the mineral estate of the 1,280 acr es, and SW EPI is the owner and opera tor of an oil and g as lease with B oston Te x as L and and Trust that encompa ssed this acr eag e. SW EPI has opera tional w ells producing g as on portions of the a cre ag e.

4I n 2006, Ey horn rec orded plats in the rea l property rec ords of Hida lgo County and 3
filed two applications acc ompanied by the rec orded plats with the Commi ssion for “qualifie d subdivisions ” of 640 acr es eac h on her l an d

. S ee Tex. Nat. Res. Code Ann. §§ 92.002(3), .004;
16 Tex. Admin. Code § 3.76(a) (4), (c)

. The plats show proposed locations for oil and g as opera tions sites and road and pipeline ease ments. See Tex. Nat. Res. Code Ann. § 92.004(a) ; 16 Tex. Admin. Code § 3.76(c) (4). At that time, Hidalg o County had an option to purcha se the 1,280 acr es from Ey horn and planned to use the ac rea g e for constructing and oper ating a landfill. The Commi ssion notified SW EPI as an owner of possessory mineral interests, and SW EPI opposed approva l of both applications. See Tex

. Na t

. Res. Code Ann. § 92.004(b); 16 Tex. Admin. Code § 3.76(d). The two applications we re c onsidered in c onsolidated hea ring s. 4
I n September 2006, SW EPI filed this cause , reque sting that the district court enjoin the Commi ssion from holding the heari n gs b ecause the Commi ssion did not have authority to
approve the applications. After a hear ing, the district court denied SW EPI ’s reque st and abate d this

cause until the Com mission entered its final orde rs. 5

The subdivision plats bear the signa ture of the county judge and attestation by the county 3 cler k that the Hidalg o County C o m m i s s ioner’s Court revie wed and approve d the plats for the two subdivisions in Febr

uary 2006. I n September 2006, Ey

horn provided SWEPI and the Commi ssion with revised plats for 4 both subdivisions and advised them that the revised plats would be the basis for Ey horn’s case at the consolidated hear ings. Among the revisions, these plats incre ased the siz e of the proposed oil a nd g as opera tions sites. The revised plats desig nate approximately 140 acr es and 139 acr es for oil and g as oper ations sites in the two subdivis ions respec tively

.

SW EPI filed an acc eler ated appea l from the district court’s d en i al of its reque st for 5 injunctive relief with this Court, but it was dismiss ed for want of prosec ution in J une 2007. SW EPI LP v. Railroad Commission , No. 03-06-00599- CV (Tex. App.—Austin J une 18, 2007) (mem. op.), available at http:// www.3r dcoa.c ourts.state.tx .us/opinions/ Opinion.asp? OpinionI D=15959. 5The consolidated hear ings wer e resumed and hear d on J anuar y 21 and Fe bruar

y 22,
2007. The hear ing examiners issued a proposal for decision on November 1, 2007, rec ommending 6
approva l of both applications. The evidenc e was then reope ned in J anuar y 2008 to rec eive evidenc e of a ne w well that SWEP I drilled afte r t he proposa l for dec ision was issued. The ne w well wa s at

a surfa ce locat ion outside of the proposed opera tions sites on one of the subdivisions

. Ey horn provided a revised plat for that subdivision which was admitted into the rec o rd

. The revised plat provided a

n additional opera tions sit e ar ound the location of the new we ll.
T h e h e a r in g e xa mi n e r s th e r e a f

te r is s u ed an amende d proposal for decision, a d d r e s s in g the new well and continuing to rec ommend app ro v al o f b o th applications. I n Fe bruar y 2008, the Commi ssion a dopted and incorpora ted the examiners’ conclusions of law and rele vant finding s of fac t and enter ed separ ate final order s approving the two appli cations. The final order for eac h qualified subdivision attache d and incorporated a metes and bounds descr iption of the subdivision and the revised plat depicting the location of the oil and g as opera tions sites and ease ments. SW EPI filed a motion for r ehea

ring on both applications, which motions the Commi ssion overruled.
I n May 2008, SW EPI filed an amende d petition in this cause , seeking judicial revie w of t h e C o mmissi on’s final order s under the Texas Administrative Procedur e Act. See Tex. Gov’t Code Ann. §§ 2001.001-.902 (West 2008 & Supp. 2009) (the “APA”)

. SW EPI also soug ht decla rations that the Commi ss i o n ’s final order s wer e in excess of the Commi ssion’s statutory authority and interfe red with and impaired a leg al rig ht or privileg e of SW EPI or, in the alterna tive,

P ri o r to the hear ing in J anuar y 2007, Hidalg o County amende d its subdivision rules to 6 addre ss qual i fi ed subdivisions for purposes of chapte r 92. Although SW EPI challeng ed the amendments in the district cour t, SW EPI does not cha lleng e them on appe al.

6decla

rations constru i n g S W E P I ’s rights under the Commi ssion’s final orders. See id

. § 2001.038 (West 2008); Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008) (Texas Uniform
Dec lara tory J udg ments Act) (the “Ac t”). After Ey horn sold her land to Hidalg o County , Hidalg o County intervene d and Ey

horn withdrew

as a pa rty to this cause.
I n Marc h 2009, the Commiss ion filed a plea to the jurisdiction on SW EPI ’s claims for decla ratory relief and, in April 2009, the district court held a hear ing on the administrative appea l and the Commi ssion’s plea to the jurisdiction. Following the hear ing, the district court aff irmed the Commi ssion’s final order s and g rante d its plea to the jurisdiction. This appeal followe d.

ANALYSIS
I n five issues, SW EPI contends that the district court err ed by aff i rm i ng the Commi ssion’s final order s and by g ranting the Commi ssion’s plea to the jurisdiction. SW EPI urg es that the Commi ssion exceede d its statutory authority beca use chapte r 92’s plain lang uag e does not authorize the C ommissi on to consider or approve two contig uous 640-ac re qualified subdivi sions

on a single parc el of land for the single purpose of landfill opera tions. As to its decla ratory claims,
SW EPI contends that the district court had jurisdiction to interpre t chapte r 92 and rule 76 or, in the alterna tive, to declar e SWEP I ’s rig hts under the Commission’s final orders.

Adm inis trative Appeal of Com m ission ’s Final Orders
I n its first thre e issues, SWEP I challeng es the Commission’s final orders unde r the
APA. SW EPI urg es that the Commi ssion acte d outside of its authority by approv i n g E y horn’s applications of two co n t i guous 640 acr es for the “same development on a single parc el of land.”

7SW EPI also urg es that the Commi ssio n ac t ed outside its authority by approving the subdivisions

beca use they “had not been subdivided for ‘re sidential, commerc ial or industrial us e’ ” but for Hidalg o County to construct and opera te a landfill. SW EPI further urg es that t h e C o mmissi on improperly

interpre ted and a

pplied rule 76 in a ma

nner that interfer es with or impairs a le g al rig ht or privileg e of SWEPI

.

A) Scope and Standard of Rev iew
We may reve rse a state administrative ag ency ’s decision that prejudice s substantial rig hts of the complaining party if the decision i s in violation of a constitutional or statutory provision, in excess of the ag ency ’s authority , made throug h unlawful proce dure or aff ecte d by other

err or of law, not rea sonably supported by substantial evidenc e, or arbitra ry or capr icious or char acte rized by an abuse of discretion. Tex. Gov’t Code Ann. § 2001.174(2)( A)-( F) (West 2008); Railroad Comm’n v. Torch Operating Co. , 912 S.W .2d 790, 792-93 (Tex. 1995). SW EPI limit s its challeng e to the Commi ssion’s authority to consider and approve the final o rd er s . See id. § 2001.174(2)( B)

.

An administrative ag ency “has o n l y those power s that the L eg islature expressly confe rs upon it” and “any implied power s that are rea sonably nece ssar y t o car ry out the express responsibi lities g iven to it by the L eg islature.” See Public Util. Comm’n v. City Pub. Serv. Bd. , 53 S.W .3d 310, 315 (Tex. 2001). The issue then is the scope of the Commi ssion’s authority under chapte r 92, and the starting point for construing chapte r 92 is the lang uag e of the statute itself. See In re City of George town , 53 S.W .3d 328, 331 (Tex. 2001).

8We consider questions of statutory construction de novo . See City o f S a n Antonio v. City of Boerne , 111 S.W .3d 22, 25 (Tex. 2003). When construing a statute, our pr imary g oal is
to deter mine and g ive eff

ect to the leg islature’s intent. Id. ; see also Tex. Gov’t Code Ann. § 312.005 (West 2005). To deter

mine leg islative intent, we look to the s t at u t e as a whole, as opposed to isolated provisions. City of San Antonio , 111 S.W .3d at 25 (citing State v. Gonzalez , 82 S.W .3d 322,
327 (Tex. 2002)). We beg in with t h e p l ai n l anguag e of the s tatute at issue and apply its common meaning

. Id. Where the statutory text is unambig uous, we adopt a constructi o n supported by the
statute’s plain lang uag e unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc . v. Ry lander , 6 S.W .3d 278, 284 (Tex. 1999).

We construe administrative rules in the same manner as statutes. See Rodriguez

v. Servic e Lloyds Ins. Co. , 997 S.W .2d 248, 2 5 4 (Tex. 1999). Unless the rule is ambig uous, we follow the rule’s plain lang uag e, and our primary objective is to g ive eff ect to the ag ency ’s intent.
See id. For this rea son, we g ive defe renc e to an ag ency ’s interpre tation of its own rules unless that interpre tatio n is clea

rly err oneous or contra

ry to the plain lang uag e of the rule. See Public Util.
Comm’n v. Gulf States Utils. Co. , 809 S.W .2d 201, 207 (Tex. 1991) ; Citi es of D ickinson v. Public Util. Comm’n , 284 S.W .3d 449, 453 (Tex. App.—Austin 2009, no pet.).

B) 640-acre Limit f

or a Qualified Subdivision
I n its first two issues, SW EPI contends that the Commi ssion exceede d its statutory authority under chapte r 92 and improperly interpre ted and applied rule 76 by approving
two contig uous qualified subdivi sions that are in excess of 640 acr es combined on a si ng le parcel of land. SW EPI urg es that the plain meaning of “not m o re t h an 640 acr es” in the definition of

9“qualifie d subdivision” in section 92.002(3) and rule 76(a) (4) is as a statutory cap or “absolute limit ”

on the amount of ac res that c an be a pproved as a qualified subdivision on a si ng le parcel of land.
See Tex. Nat. Res. Code § 92.002(3); 16 Tex. Admin. Code § 3.76(a) (4). SW EPI focuse s on the use of the indefinite article “a” in the definition of “qualifie d subdivision” in the statute and the rule—“ a
trac t of land of not more than 640 acr es”—a nd in the phrase i n s ec t i o n 9 2.003 that “[t] he surfa ce

owner s of a parc el of land may cre ate a qualified subdivision on the land

. . . .” See Tex. Nat. Res. Code Ann. §§ 92.002(3), .003; 16 Tex. Admin. Code § 3.76(a) (4) (empha sis added)

. Ba sed upon 7
the use of “a” in the phrase s “a trac t of land of not mor e than 640 acr es,” “a parc el of land,” and “a qualified subdivision ,” SW EPI contends that the plain meaning of this lang uag e only supports a si ng le 640-acre qualified subdivi sion per parce l of l and. S WEP I arg ues that to construe chapter
92 and rule 76 to authoriz e t h e Commi ssion to approve multipl e applications for contig uous
q u al i fi ed subdivisions on a single piece of proper ty , as long as no single application exceeds
6 4 0 ac re s , wo uld g ive no meaning to the inclusion of “no more than 640 acr es.” See City of
San A n t o n i o , 1 11 S.W .3d at 29 (ef fec t must be g iven to eac h word and clause so that none are rende red meaning less); see also Tex. Gov’t Code Ann. § 31 1 .021(2) (West 2005) (“[T]he entire statute is intended to be ef fec tive.”). The Commi ssion’s interpre tation of chapte r 92 and rule 76, howeve r, confor ms with the common meaning of the lang uag e in both the statute and rule. I n draf ting statutes, the singula

r
t ense includes the plural and the plural tense includes the singula r “unless expressly p ro v i d ed

S ec t i o n 9 2.003 addre sses who may cre ate a qualified subdivision, limit ing cre ation of 7 a subdivision to “the surfa ce owner s of a trac t of land.” See Tex. Nat. Res. Code Ann. § 92.003 (West 2001). 10otherwise.” Tex. Gov’t Code Ann. § 312.003(b) (West 2005); see i d

. § 311.012(b) (West 2005)

(“The singula

r includes the plural and the plural includes the singula r.”) ; Frenship Rural High Sch.
Dist. v. Central Educ. Agenc y , 404 S.W .2d 41, 43-44 (Tex. Civ. App.—Austin 1966, writ ref ’d n.r.e.) (discussing and apply ing rule that singula r i n cludes plural). Her e, the leg islature did not provide other

wise. Although the leg islature limit ed a qualified subdivision to “a trac t of land of not more than 640 acr es,” the leg islature did not expressly provide that only one 640-ac r e q u a li f ie d s ubdivision

was authorized for a landowner of more than 640 acr es. Nor did the leg islature expressly require the Commi ssion to consider applications for qualified subdivisions based upon their rela tion to other proposed subdivi sions, such as joint proposed de velopment and rela tive locations. “Only when it is nece ssary to g ive eff ect to the clea

r leg islative intent can we insert additional wo rd s or require ments into a statutory provision.” Cameron v. Terrell & Garrett, Inc ., 618 S.W .2d 535, 540 (Tex. 1981); see City of Rockwall v. Hughes , 246 S.W .3d 621, 629 (Tex. 2008) (dec lining to re ad additional words into statute in construing statute).

I n contras t t o the Commi ssion’s interpre tation, SW EPI ’s proposed interpre tation would require this Court to add additional require ments to the s tatute t hat are not co n t ai n ed i n i t s plain lang uag e. See Cameron , 618 S.W .2d at 540. We would have to add require ments that would limit a landowner of more than 640 acr es to one qualified subdi v i s i o n o n h er l and even if she planned to develop her entire trac t for the same purpose. I f the leg islature had intended to place such restric tions on qualified subdivisions , it could have written such restric tions into the statute. See id.;

see also Presidio Indep. Sch. Dist. v. Scott , No. 08-0958, slip op. at 7 (Tex. April 2 3 , 2 0 1 0 ),

11a v a il

a b le a t h tt p :/ /w w w . s u p r e me . c o u

r ts

. s tate.tx.us /historica l/ 2 0 1 0 /a p r /0 8 0 9 5 8

. p d f ( “ Co u

r ts mu s t n o t
g ive the words used by the L eg islature an ‘exag g era ted, forc ed, or constraine d meaning .’” (quoting
C i t y o f A u s tin v. Southwestern Bell Tel. Co. , 92 S.W .3d 434, 442 (Tex. 2002))

. L ikewise, if t h e leg islature had intended to eff ect a cap, it would likely have said so. We may not presume that when the leg islature chooses, it opts for opacity

. The purpose of the law shall not be sacr ificed to a literal interpre tation of the ar

ticle “a .” The Com mission’s interpre tation of chapter 92 and rule 76 als o confor ms with the title and stated purpose of chapte r 92. See Tex. Gov’t C o d e An n . § 311.023(1), (7) (West 2005) (whe n construing a statute whether or not ambig uous on its fac e, court s may consider the “objec t
soug ht to be obtained” and “title”); McI ntyre v. Ramirez , 109 S.W .3d 741, 745 (Tex. 2003). Chapter
92 is entitled “Minera l Use of Subdivided L and.” “Subdivide” commonly means “to further divide (wha t has alre ady been divided).” Webster’ s T h ird New I nterna tional Dictionary 2274 (2002). Section 92.001 states the leg islative purpose be hind the enac tment of cha pter 92:

I t is the finding of the leg i s l ature that the rapidly expanding population and development of the cities and towns of this state and the concomitant need for adequate and aff

ordable housing and suitable jo b o pportunities call for full and efficient utiliz ation and deve lopment of all the land resource s of this state, as well as the full deve lopment of all the minerals of this state

. I n view of that finding , it is the intent of the leg islature that the mineral resour ces of this state be fully and eff ectively exploi ted and that all land in this state be maintained and utiliz ed to its fullest and m o s t ef fi ci ent us e. I t is the further finding of this leg islature that it is nece ssary t o exercise t h e au thority of t he legislature pursuant to Article XVI , Section 59, of t he Constit ution of the State of Texas to assure proper and order ly development of both the mineral and land resour ces of this state and that the enac tment of this chapte r will protec t the rig hts and welfa re of the citizens of this state.

12Tex. Na t. Re s. Code Ann. § 92.001 (italics added)

. The Commi ssion’s inter preta tion is consistent with the plain lang uag e of the title and the stated purpose that the leg islature intended to addre ss the mineral use of land that has been subdivided and to ma x imiz e the development of both the surfa ce and the miner al re source s on the subdivided land. Id

.

As the hear ing examiners explain in the amende d proposal for decision conc erning the leg islature’s intent in ena cting chapte r 92,
Considering that the stated purpose of the enac tment of Chapter 92 of the Code was to achie ve full and eff

icient utiliz ation and development of all the land resour ces of the state, as well as full development of the minerals of the state, it appe ar s t o the examiners implausible that it was intended that the surfa ce owner of a 1 , 2 8 0 -a cre housing or mix ed use developm en t , fo r example, [would] be prohibited from obtaining the protec tions of § 9 2

. 0 0 5 fo r more than 50% of his development. The definition in § 92

. 0 0 2 (3 ) sugg ests that the C ommissi on may not approve a dis tinct subdivision containing more than 640 acr es, but it does not expressly forbid approva l of two contig uous 640-ac re subdivisions cre ated out of a single parc el of contig uous acr eag e. A more plaus i b le interpre tation is that the 640-ac re limit ation in the definition of “qualifie d subdiv i s i o n ” was intended to require the surfa ce owner to rese rve opera tions sites and road and pipeline ease ments for eac h distinct 640 acr es or less and to require independe nt analy sis by the Railroad Commi ssion of t he adequa cy of such opera tions sites and ease ments for the full and eff icient exploi tation of minera l resourc es for

eac h distinct 640 acre s or less.

The Commi ssion’s interpre tation to allow contig uous qualified subdivisions that exceed 640 acr es combined for a single proposed development satisfies the leg islative intent to balanc e the competing interests betwee n the surfa ce and mineral estates and serve s the leg islative intent “that all land in this state be ma intained and utilized to it s fullest and most effic ient use.” Id . (empha sis added).

Chapter 92 as a whole also supports the C ommissi on’s interpre tation of the statute and its rule that allows contig uous qualified subdivisions that exceed 640 acr es combi n ed for a

13single proposed development. See City of San Antonio , 111 S.W .3d at 25. Chapter 92 balanc es the

future de velopment of the surfac e estate ag ainst the s ubsurfa ce mineral resource s by requiring the Commi ssion independe ntly to consider the “ade quacy of the number and location of opera tions sites and road and pipeline ease ments” for eac h distinct application and by providing minimum require ments for the siz e and location of the opera tions sites. See Tex. Nat. Res. Code Ann. § 92.004(b). Eac h opera tions site must have at least two acr es and eac h separ ate 80 acr es must have
at least one opera tions site. See id

. § 92.002(1), (3)( C); 16 Tex. Admin. Code § 3.76(a) (2), (4)( C). Additionally , afte r considering the evidence, the Commi ss i o n m ust “appr ove, reject or amend the application to ensure that the mineral resour ces of the subdivision are fully and eff ectively exploi ted.” See Tex. Nat. R es. C ode Ann. § 92.004(b); 16 Tex. Admin. Code § 3.76(d). Chapter
92 ensure s that the interests of owner s of possessory mineral interests are protec ted for eac h distinct qualified subdivision that the Commi ssion approves.

Th e C o m m i s s ion’s interpre tation of chapte r 92 and rule 76 is rea sonable and consistent with the leg islative history of chapter 92. See Tarrant Appraisal Dist. v. Moore,
845 S.W .2d 820, 823 (Tex. 1993) (“Construction of a statute by the administrative ag ency char g ed with its enfor ceme nt is entitled to serious consideration, so long as the construction is rea sonable and does not contra dict the pl ain l ang uag e of the s tatute.”) ; Public Util. Comm’n , 8 0 9 S

. W

. 2 d at 207; Railro a d Co mm’n v. Coppock , 215 S.W .3d 559, 563 (Tex. App.—Austin 2007, pet. denied) ; see also
Tex. Gov’t Code Ann. § 311.023(3), (6) (West 2005) (whe ther or not statute ambig uous, court may

14consider administrative construction of statute and leg islative history ). The leg islative h i story is 8
silent on any intent to place an ab s o l u t e limit on the number of contig uous qualified subdivision applications that the Commi ssion c ould c onsider and a pprove or the number of

applications that a single proper

ty owner could file and have approve d for a prop o s ed d evelopment based upon an absolute limit or statutory cap of acr eag e. SW EPI relies upon t h e am endment in 1987 to section 92.002(3) that incre ased the

acr eag e for a qualified subdivision from 160 to 640 acr es. See Act of J une 11, 1987, 70th L eg ., R.S., ch

. 2 74, § 1, 1987 Tex. Gen. L aws 1616, 1616. SW EPI contends that the Commi ssion’s 9 interpre tation makes the amendment from 1 60 to 640 acr es meaning less beca use, without the amendment, a party could have filed four applications to rea ch 640 acr es of qualified subdivisions

. I ncre asing the siz e for qualified s ubdivisions to 640 acr es, howeve r, provides cer tainty and

Prior to the approva l of the final order s here , the Commi ssion simult aneously had approve d 8 applications for contig uous qualified subdivisions that exceede d 640 acr es combined. See Texas Railroad Comm’n, Application of Affili ate Crown De ve l opment, Ltd. to Consider Approval of a Qualified Subdivision Pursuant to Statewide Rule 76 for a 407.40 Acre Tract Subdivision in Montg o me ry County, Texas , Docke t No. 03-0245063 (January 24, 2006) (final order g ranting a p p li c a ti o n ) ; Texas Railroad Comm’n, Application of Affili ate Crown Dev elopme n t, Lt d

. to Co n s id

e r Approval of a Qualified Subdivision Pursuant to Statewide Rule 76 for a 535 Acre Tract Subdivision i n Mo ntgomery County, Texas , Docke t No. 03-0245064 (January 24, 2006) (final order g ranting application). The leg islature also amende d section 92.002(3) by requiring the desig nation of two or more 9 acr es as an opera tions site for eac h separ ate 80 acr es within a qualified subdivision and by allowing qualified subdivi sions o n b ar ri er islands. See Act of J une 11, 1987, 70th L eg ., R.S., ch. 274, § 1, 1987 Tex. Ge n. L aws 1616, 1616. Prior to the amendment, a qualified subdivision had to contain two or more ope rations sites within the 160 acr es. See id. 15protec tion f or the parties and promotes eff iciency by reduc ing the number of applications require d for lar g er de velopments. 1 0

Moreove r, we re w e to ac cept SWEPI ’s interpre tation of the lang uag e in chapter 92 and rule 76, such an interpre tation would lead to absurd results. Rylander , 6 S.W .3d at 284. For

ex am ple, an owner of a 1,000-ac re proper ty that the owner wanted to develop as a residenti al subdivision would be limit ed to an are a of 640 acr es for qualified subdivisions , without any consideration or balancing betwee n the competing int ere sts of t he minera l and surfa ce e states and the “fullest and most eff

icient use” of the 1,000 acr es. See Tex. Nat. Res. Code Ann. § 92.001; see also Tex. Gov’t Code Ann. § 311.023(5) (West 2005) (whe ther or not statute ambig uous, court may consider “conse quence s of a particula r construction”) ; Scott , slip op. at 7 (cour t must not g ive words “exag g era ted, forc ed, or c onstrained mea ning” ).
SW EPI analog izes Ey

horn’s two contig u ous applications that exceede d 640 acr es

c o mb in ed to plaintiffs who attempt to “esc ape the L eg islature’s statutory scheme by artful plea d in g . ”
See Murphy v. Russell , 167 S.W .3d 835, 838-39 (Tex. 2005) (plaintiff’s claim of battery dismiss ed beca use substance was medical malprac tice claim and, ther efor e, statutorily require d to f ile expert
repor t); see also In re Merrill Lynch Trust Co. FSB , 235 S.W .3d 185, 19 0 (T ex . 2007) (orig

. proce eding ) (“[A]rbitrability turns on the substance of a claim, not artful pleading .”); Baylor Univ.

v. Sonnichsen 221 S.W .3d 632, 636 (Tex. 2007) (foc us of “leg al trea tment of claims [i s] on the true

For example, prior t o the 1987 amendment, a develope r wit h two 640 acr e tra cts would 1 0 have to file and pursue eig ht qualified subdivision applications with the Commi ssion, incre asing the expense for the applicant and any contestants and risk to the applicant that one application will fail and jeopa rdize the entire pr oject. See id

. 16nature of disputes rathe r than allow artful pleading to morph contra ct cla i m s into fra ud cause s of action to g ain favor able redr ess under the law”)

. We do not find these case s analog ous as they focus

on a plaintiff’s improper re- char acte rization of a cause of action into a differ ent cause of action. I n
contra st, Ey

horn complied with the proce dures in chapte r 92 and rule 76 by filing two s ep ara te applications for 640 acr es, and she fully informed the Commi ssion and SW EPI of Hidalg o County ’s option to buy

her la nd and its plans for de veloping the two contig uous subdivisi ons. Consist ent with the power s that the leg islature expre s s l y confe rre d on it, the Commi ssion independe ntly a n a ly ze d E y h o r n ’ s a p p li c a ti o n s , c o n s id e r e d th e adequa cy of the proposed
opera tio n s s i t es and ease ments for eac h proposed qualified subdivision, and deter mined that the minerals would be “fu l ly and eff ectively exploi ted” on the land comprising the two distinct subdivisions

. See Tex. Nat. R es. C ode Ann. § § 9 2.001, .004(b); 16 Tex. Admin. Code § 3.76(d); Public Util. Comm’n , 53 S.W .3d at 315. Apply ing the plain lang uag e of chapte r 92 and r ule 76, 1 1

we conclude that the Commi ssion did not exceed its statutory authority under chapte r 92 and did not misint erpr et or misapply rule 76 by approving the two separ ate applications for 640 acr es eac h in its final orde rs. We overrule SW EPI ’s first and se cond issues.

1 2

SW EPI does not cha lleng e the he aring examiners’ conclusion of law number 4 that was 1 1 adopted by the Commi ssion i n its final order s. The hear ing examiners conclude d: “Appr oval of ea ch o f the applications in these dockets will ensure that the mineral resour ces of eac h o f t h e qualified subdivisions are f ully and ef fec tively exploi ted and de veloped.” SW EPI contends that chapte r 92 should be strictly construed beca use it deprive s SW EPI 1 2 of its common law rig ht to use as much of the s urfa ce as rea sonably nece ssary

in order to de velop the minerals. SW EPI urg es that a l ar ger s ubdivision more sever ely limit s oil and g as opera tions beca use t here is a larg er area that cannot be rea ched. I f a stat u t e “deprives a person of a common law ri gh t , t h e s tatute will be strictly construed in the sense that it will not be extended bey ond its plain meaning or applied to case s not clea rly within its purview.” S a tterfield v. Satterfield , 448 S.W .2d 456, 459 (Tex. 1969). Gi ven our conclusion that the plain lang uag e of the statute 17C) Landfil l as “Industri al” Use
I n its third issue, SW EPI con tends that the Commi ssion exceede d its statutory authority by approving the applications beca use Ey horn’s land was not “subdivided i n a m an ner authorized by law b y the surfa ce owner s for residential, commerc ial, or industrial use.” See Tex.
Nat. Res. Code Ann. § 9 2

. 0 0 2 (3 )( B) ; 16 Tex. Admin. Code § 3.76(a) (4)( B) ; see also Tex. Gov’t Code Ann. § 2001.174(2)( B)

. SW EPI specific ally urg es that the proposed use of a landfill is not 1 3
an “industrial use ” within that term’s c ommon meaning

.

SW EPI challeng es the Commi ssion’s adoption of the hear ing examiners’ finding of fac t number 6 and c onclusions of law number s 2 and 3:

6. Eac h of the proposed qualified subdivisions has been subdivided in a manner authorized by

law by the surfa ce owner f

or industrial use.

a. Ey

horn i s t h e o wn er o f t he surface estate of the acrea g e included in eac h of the propose d qualified subdivisions. b. Ey

horn has filed plats of eac h of the proposed qualified subdivisions with the Ra ilroad Commi ssion showing subdivided lots and the proposed locations of opera tions sites for exploration, development, and production of minerals and road and pipeline ease ments nece ssary to use the oper ations sites.

supports the Commi ssion’s interpre t at i o n , i t follows that the interpre tation does not extend the statute “be y ond its plain meaning .” See id

.

Wit hout providing additional arg ument o r au thorities, SW EPI contends that the 1 3 Commi ssion’s f

inal order s also are “ar

bitrary or capr icious or cha rac terized by abuse of discretion or clea rly unwar rante d exercise of discretion.” See Tex. Gov’t Code Ann. § 2001.174(2)( F) (West 2008). For the same rea sons that we conclude that the Boa rd did not exceed its statutory authority , we also conclude that the Commi ssion’s order s wer e not arbitra ry or capr icious or char acte rized by abuse of discretion or c lear ly

unwar rante d exercise of

discretion. See id

. 18c. Under Hidalg o C ounty subdivision rules, approva l of the Commi s s i oner’ s Court of Hidalg o County of qualified subdivision plats is not r equire d prior to Ra ilroad Commi ssion a pproval. Under these subdivision rules, a parc el of land is considere d subdivided for residential, commerc ial, or industrial use when a plat delineating trac t boundarie s, oil and g as opera ti o n s s ites, pipeline ease ments, road ease ments or other boundarie s is filed with the Railroad Commi ssion as a pa rt of an a pplication for a

pproval of a

qualified subdivision. d. The acr eag e cover ed by the two proposed qualified subdivisions is subject to an option to purcha se contra ct betwee n Ey horn, as curr ent surfa ce ow ner, a

nd Hidalg o County , as purc haser

.

e. Hidalg o County proposes to use eac h of the proposed q u al i fi ed subdivisions for a

landfill and assoc iated landf ill facilities. * * *
2. All things nece ssary to the Commi ssion attaining jurisdiction over the subject matter and the parties in these dockets have been perf ormed or have occur

red.
3. Eac h of the applications for approva l o f qualified subdivisions in these dockets meets and complies with al l require ments for approva l of Chapter 92 of th e Texas Natura l Resource s Code and Railroad Commi ssion Statewide Rule 76.

SW EPI urg es that the leg islature did not intend landfill opera tions as the ty pe of use it was try ing to protec t in enac ting chapte r 92. SW EPI focuse s on ref ere nces in the leg islative history
to “buil d i n gs , ” “deve loping urban areas,” and “rea l-estate development.” SW EPI urg es t hat t he 1 4

The House Commi ttee on Energ y in its bill analy sis ref ere nces by way of backg round that 1 4 “cities are expanding out over adjac ent far m an d ra n ch l and to meet the needs of the people for residentia l , co m m ercial, and industrial buildings.” House Comm. on Energ y , Bill Analy sis, Tex. S.B. 946, 68th L eg ., R.S. (1983). The bill analy sis from t h e s en at e natura l resour ces committee states in the backg round section that “bank[s] or other lending instit utions are reluc tant to lend construction capital if there is a possibili ty that the building th ey fi n an ce , s uch as a war ehouse, might later be demolished by the subsurfac e mineral owner s in order for the minerals to be broug ht to the surfa ce.” Senate Comm. on Nat. Res., Bill Analy sis, Tex. S.B. 946, 68th L eg ., R.S. 19“foc us in adopting t h e s t atut e was in rec onciling the land use needs of local urban rea l estate

development with full and eff ective development of the state’s mineral resour ces.” The leg islative history , howeve r, is silent on what constitutes an “i n d u s t rial use.” And the Commi ssion’s interpre tation that a l an d fi l l is an industrial use within the meaning of section 92.002(3)( B) is

rea sonable and does not contra dict the plain lang uag e of the statute. See Moore, 845 S.W .2d at 823; Coppock , 215 S.W .3d at 563. The common meani n g o f “indus trial” when used as an adjec tive

means “of or belong ing to industry .” Webster’s Third New I nterna tional Dictionary 1155 (2002). 1 5

That the leg islature intended for residential subdivisions or commerc ial or industrial office parks to f

all within the ty

pes of uses a llowed under the statute does not pre clude other uses, such as landfill opera tions, from also falling within the ty pes of uses allowed. Section 92.002(3)( A)

ex pressly define s the counties in which a qualified subdivision may be cre ated based u p o n t h e population of the county : the trac t of land must be “loca ted in a county having a population in excess of 400,000, or in a county having a population in excess of 140,000 that border s a county having a

(1983). The House Resear ch Org ani z ation noted that chapte r 92 was passed to allow “both rea l-estate development and mineral exploration.” House Resear ch Org anization, Daily Report for May 20, 1987. I nterpre ting “industrial use” to include landfill opera tions is consistent wi th traditional 1 5 zoning conce pts of “industrial use districts.” See Robert M. Ander son, 2 American Law of Zoning 3d § 9.44 (1986) (“I ndustrial districts tra ditionally have been the rec eptac le into which all uses are place d afte r those worthy of protec tion have been provided for. Not infreque ntly these zones have been denominated ‘unre stricted,’.

. .”); Patrick J

. Rohan, 7 Zoning and Land Use Controls § 39.06 (2009) (“Tr aditional zoning scheme s place industrial uses at the bottom of the hiera rchy of uses. Thu s , b e g in

n in g with what is considere d the highe st, most sensitive use of proper ty , the single -family detac hed ho m e, zoning codes ty pically move down throug h high density residential uses and commerc ial uses bef

ore the y rea ch the lowe st classification, industrial use.” ).

20population in excess of 400,000.” See Tex. Na t. Re s. Code Ann. § 92.002(3)( A). Other than the 1 6 population require ment, there is no expressed restric tion that a qualified subdivision only be in urban

are as or f or deve lopment that includes buildings. See id. ; Cameron , 618 S.W .2d at 540.
SW EPI relies upon subsection (c) of section 92.005 to support that the leg islature did
not intend for a landfill to be an “industrial use.” See Tex. Nat. Res. Code Ann. § 92.005(c)

. Section 92.005(c) provides the circ umstances when the restric tions on an owner of a possessory m i n er al interest in a qua lified subdivision cease to a pply :
(c) This section cea ses to apply to a subdivision if, by the third anniver sary of the date on whic h the orde r of the c ommissi on become s final: (1) the surfa ce owner has not commence d actua l construction of roads or utilit ies within the qualified subdivision; and (2) a lot within the qualified subdivisio n h as n ot been sold to a third party

.

See id. SW EPI focuse s on the require ment in subse ction (c) (2) that a lot be sold to a third party to support that the uses intended wer e “urba n rea l estate development, like residential subdivisions and

commerc ial or industrial office parks.” But the plain lang uag e of subsect ion (c) is that both subsections (1) and (2) must apply for the restric tions on the owner of the possessory mineral interest
to cea se. I f construction of roads or utilit ies is commence d within three y ear s of the order from the Commi ssion be coming final—whe ther or not a lot is sold to a third party —section 92.005(c) does

A su rf ac e o wn er al so may cre ate a qualified subdivision on a trac t of land on a barr ier 1 6 island. See Tex. Nat. Res. Code Ann. § 92.002(3)( A) (West 2001). 21not apply

. See City of San Antonio , 111 S.W .3d at 25. Section 92.005(c) does not support limit ing

“industrial use” as SWEP I proposes.

A p p ly in g th e c o mmon meaning of “industrial use,” we conclude that the Commi ssi o n did not exceed its statutory authority by interpre ting “industrial use” to include landfill opera tions. 1 7
See Tex. Nat. Res. Code Ann. § 92.002(3)( B) ; 16 Tex. Admin. Code § 3

. 7 6(a) (4); City of
San Antonio , 111 S.W .3d at 25. We overr ule SWEP I ’s third issue.

Dec laratory Relief

I n its fourth and fifth issues, SW EPI contends that the district court err ed in g ranting the Commi ssion’s plea to the jurisdiction as to its decla ratory claims under the Act and under section 2001.038(a) of the g overnme nt code. Alterna tively , SW EPI contends that the district court err ed in
g ranting the Commiss ion’s pleas a s to its alternative reque sts for dec lara tory relief conce rning the meaning of the Commission’s final orders.

I n its plea to the jurisdiction, the Commi ssion contende d that the district court did not have jurisdiction of SW EPI ’s decla ratory claims beca

use those claims wer e redunda nt of its claims challeng ing the Commi ssion’s final orders under section 2001.174 o f t h e APA and that full relief

was available t o S W EPI as part of its suit for judicial revie w of the Commi ssion’s final order s. SW EPI urg es that it pled and proved that its re q u es t s fo r d ecla ratory relief did not duplicate its

Prior to Ey

horn’s applications, the Commi ssion had considere d and approve d a qualified 1 7 subdivision application for landfill opera tions. See Texas Ra ilroad Comm’n, Application of E& D W aste Systems, Inc. f

o r A p p r o va l of a Qualified Subdivision Pursuant to Statewide Rule 76 for a 99.9733 Acre Tract of Land in A bstracts Nos. 601 and 607, Galveston County, Texas , Docke t N o. 3-84,416 (Oil & Gas Div’n Aug ust 19, 1985) (final application approving qualified subdivision for use as a landfill). 22administrative appe al but wer e broader beca use a de cision on the administrative appe al “[did] not

nece ssarily settle the underly ing dispute betwee n the parties over the scope of the Commi ssion’s authority .” See Texas Mun. Pow er Agency v. Public Utility Comm’n , 253 S.W .3d 1 8 4 , 200 (Tex. 2007) (re manding dec l ar at o ry claims that are “distinct from and not duplicative of the claims for judicial revie w of Commission orders”).

We revie w the trial court’s ruling on a plea to the jurisdiction de novo . Texas Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 2 2 8 (T ex . 2004). A pl ea to the j urisdiction is a dilatory plea that contests the trial c ourt’s authority to de termine the subject matter of the cause of

ac t i o n wi thout reg ard to whether the claims asser ted have merit. Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 554 (Tex. 2000).

Section 37.004(a) of the Act provides that a person “whose rig hts, sta t u s , or leg al rela tions are aff

ecte d by a statute

. . . may have deter mined any question of construction or validity arising under the

. . . statute

. . . an d o b t ai n a decla ration of rig hts, status, or other leg al rela tions
t h ere under.” Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a)

. Section 2001.03 8 (a ) o f t h e
g overnme nt code provides, “The validity or applicability of a rule

. . . may be deter mined in an action for decla ratory judgme nt if it is allege d that the rule or its thre atene d application interfe res with or impairs, or threa tens to interfe re with or impair, a leg al rig ht or privileg e of the plaintiff.” Tex. Gov’t Code Ann. § 2001.038(a ).

A decla ratory j u d g ment claim “will not lie” when it is “re dundant” of a para llel admi nistrative appea l and the “re medy under the APA is the same as that provided u n d er t h e [Act] ”—re versa l of the ag enc y ’s final order

. Texas Mun. Power Agenc y v. Public Util. Comm’n ,

23260 S.W .3d 647, 651 (Tex. App.—Austin 2008, no pet.) (citing and quoting Texas Liquor Control

Bd. v. Canyon Creek Land Corp ., 456 S.W .2d 891, 895 (Tex. 1970)); see also Y oung Chevrolet, Inc.

v. Texas Motor Vehic le Bd. , 974 S.W .2d 906, 911 (Tex. App.—Austin 1998, pet. denied) (“When

a statute provides a method for attacking an ag ency order , a decla ratory judgme nt action direc ted at that order will not lie.”); Texas Dep’ t of Transp. v. Texas W eek ly Advoc ate , No. 03-09-00159- CV,
2010 Tex. App. L EXI S 566, at *8 (Tex. App.—Austin J an. 29, 2010, no pet.) (m em. op.) (“A [declara tory judgme nt] action cannot stand if there is a pending action that resolves the exact issues raised unde r the [Act].”) (c iting and quoting Texas Liquor Cont rol Bd. , 456 S.W .2d at 895).

Her e it is cle ar that SW EPI ’s decla ratory claims duplicate its claims and available

reme dies under its administrative appea l of the Commi ssion’s final order s . SW EPI soug ht the following decla

rations in its pleading s:

• Section 92

. 0 0 2 (3 ) of the Code and Statewide Rule 76(a) (4) limit the Commi ssion’s authority to consider and/or approve applicatio n s for “qualifie d subdivisions ” to no more tha n 640 acr es;

• The Com mission had no authority to consider or approve the Applications, beca use to do so was tantamount to considering and appr oving a “qualifie d subdivision” of more than 640 a cre s;

• The Commi ssion exceede d its statutory authority and violated its own rule by considering and appr oving the Applications;

• The Commi ssion exceede d its statutory authority and vi o l at ed i ts own rule when it re fused to dismiss the Applications upon [ SW EPI ]’s mot ion;

• The Commi ssion exceede d its statutory au t h o ri t y and violated its own rule when it adopted the order s . . . , eff ectively g ranting “qualifie d subdivision” status to a trac t of more than 640 a cre s; and

24• The Commission has applied Statewide R ule 76 in a manner that interf ere s with or impairs a leg al rig ht or privileg e of [SW EPI ]. * * *

• The words “re sidential, commerc ial and industrial use” as found in the definition of “qualifie d subdivision” in Tex. Nat. Res. Code § 92.002(3)( B) , do not include a use as a la ndfill within t he mea

ning of these ter ms.

• The words “re sidential, commerc ial and industrial use” as found in the definition of “qualifie d subdivision” in Statewide Rule 3.76(a) (4)( B) , do not include a use as a la

ndfill within t he mea

ning of these ter ms.

SW EPI ’s decla

ratory claims are based upon the same sta t u tory construction
arg uments that it made at the consolidated hear ings befor e the Commi ssion a nd that it made to the district court in its administrative appea l of the Commi ssion’s final order s. An available reme dy in its administrative appea l was the reve rsal of the Commi ssion’s order s if the order s wer e “in excess of the ag ency ’s statutory authority .” See Tex. Gov’t Code Ann. § 2001.174(2)( B)

. The district court

nece ssari ly d e c id e d th e s u

b stance of SW EPI ’s decla ratory claims when it aff

irmed the Commi ssion’s final order s—interpre ting chapte r 92 and rule 76 to authorize the Commi ssion to approve Ey horn’s
two applications for contig uous qualified subdivisions of 640 acr es eac h and for development as a landfill. See id . SW EPI ’s dec lara tory claims would provide no a dditional relief.
SW EPI cites City of W

aco v. Texas Natural Resou r ce Conservation Commission , 83 S.W .3d 169 (Tex. App.—Austin 2002, pet. denied) , to support the district court’s jurisdiction to consider its decla

ratory claims. We find the analy sis in City of W aco inapplicable here

. I n that case , this Court held that the district court had jurisdiction to consider the city ’s reque st for a decla ration that the TNRCC could not g rant additional permits in a water shed are a until the city complied with

25fede ral reg ulations tha t w ere incorporated into state law. Id

. at 173. Unlike here , the City was not

attacking an ag ency order or rule, and the only g round for dismiss al that the TNRCC raised was one of ripene ss—“that the controve rsy [was] hy pothetical and not ripe for adjudication apar t from a specific permit application.” Id

. at 178. This Court made clea r that “[t] he City [was] not appea ling
fr o m a specific ag ency action and [was] not challeng ing the validity or application o f an age n cy rule,” but rig hts it alleg ed it was afforde d under feder al reg ulation. Id . I n that context, this Court held that the district court had jurisdiction to consider the city ’s reque st f or decla ratory relief “on a purely leg al issue.” Id . at 178. 1 8
As to SW EPI ’s alterna tive claims for decla rations of i t s l egal rig hts, status, and rela tions under the Commi ssion’s final order s, SW EPI contends that there is confusion surrounding the restric tions place d on SW EPI beca use it is not clea

r if SW EPI is subject to the orig inal plats filed and approve d by Hidalg o County or if th e re v i s ed plats that the Commi ssion approve d and incorpora ted into its final order s repla ced the plats orig inall y fi led in Hidalg o County

. SW EPI ’s compl aint focuse s on alleg ed uncer tainty cre ated by Ey

horn’s filing of amende d plats for the subdivisions during the pendenc y of the applications befor e t h e C o m mission and conce rns that Hidalg o County

may impose restrictions on SWEP I in the future ba sed upon the orig inal plats.

SW EPI ’s relianc e on El P aso Hospital District v. Texas Health and Human Servic es 1 8 Commission , 247 S.W .3d 709 (Tex. 2008), and City Public Servic e Board of San Antonio v. Public Utility Commission , 96 S.W .3d 355 (Tex. App.—Austin 2002, no pet.) , i s s i m i l arly misplaced. Neither case addre ssed the issue raised by the Commi ssion here

— wh et h er asser ted decla ratory claims wer e re dundant of the issues and available remedies in a parallel a dminist rative a ppeal. I n El Paso Hospital , the issue was whether the age n cy ’s method of calc ulating cer tain rate s was an ag ency rule and, if so, if it was valid. 2 4 7 S

. W

. 3 d at 711. And i n City Public Servic e , this Court addre ssed the dire ct appe al provisions of the public utilities act. 96 S.W .3d at 356. 26Section 92.004(a) specifie s that applications m ust b e ac co m p anied by a plat of t he

subdivision showing the proposed locations of ope ra t i o n sites and easements. See Tex. Nat. R es. Code Ann. § 92.004(a)

. But section 9 2.004(b) authorizes the Commi ssion itself to amend a plat prior to approva l and section 92.006 expressly allows a surfa ce owner to abandon, repla t, or amend
any portion of a subdivision as long as the amendment or repla tting is approve d by the Commi ssion.
See id

. §§ 92.004(b), .006. Section 92.006 further protec ts the owner of possessory mineral interests beca use an amendments or repla t “may not alter, diminis h, or impair the usefulness of an opera tions site or appurte nant road or pipeline ease ment unless the am en d m en t o r repla t is approve d by the commission in acc ordanc e with Section 92.003 of this Code.” See id

. § 92.006. Her e Ey horn’s revisions to the plats wer e made in p art to provide more surfa ce are a for SW EPI ’s oil and g as
opera tions sites and to acc ommodate the new we l l that SW EPI drilled on one of the subdivisions during the pende ncy

of the a pplications befor e the Commission.
I n any event, the Act may not be used to obtain an im permissible advisory opinion
to in t er p ret the Commi ssion’s final order s. See Texas Ass’n of Bus. v. Texas Air Control Bd. , 1 9
852 S.W .2d 440, 444 (Tex. 1993) (Ac t “mer ely a proce dural device for deciding case s alre ady within

a court’s jurisdiction rathe r than a leg islat i v e en l ar gement of a court’s power , permitting the rendition of advisory opinions”); Alamo Express, Inc. v. Union City Transfer , 309 S.W .2d 815,

Ey horn initially filed a proposed subdivision plat, a metes and bounds descr iption and use 1 9 restric tions, and a “map of topogr aph and draina g e” with Hidalg o County for both subdivisions

. The revised plats that wer e approve d by the Commi ssion c onsist of one pag e per subdivision depicting the location of the oil and g as oper ations sites and ea sements. 27827-28 (Tex. 1958) (re quest for a decla ratory judgme nt of meaning of ag ency order and its various provisions seeking impermissible advisory opinion).
We conclude that the district court did not err in g ranting the Commi ssion’s plea
to the jurisdiction conce rning SW EPI ’s decla ratory claims. We overr ule SW EPI ’s four th and fifth issues.

CONCLUSION

Having overr

uled SW EPI ’s issues on appea l, we aff irm the district court’s judgme nt, aff irming the Commi ssion’s final order s and g ranting the Commi ssion’s plea to the jurisdiction on SW EPI ’s dec lara tory

claims.

__________________________________________

J an P. Patterson, J ustice
Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: May

11, 2010

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