      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                    ON MOTION FOR RECONSIDERATION EN BANC



                                       NO. 03-07-00025-CV



  Texas Citizens for a Safe Future and Clean Water and Mr. James G. Popp, Appellants

                                                  v.

           Railroad Commission of Texas and Pioneer Exploration, Ltd., Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
       NO. D-1-GN-06-001303, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                              CONCURRING OPINION


               About all that can be said with clarity regarding the term “public interest” is that

everyone is for it—at least according to one’s own perception of it. Of course, perspectives may

differ dramatically as to the relevant “public,”1 much less what is in that public’s “interest” or the

virtually infinite range of considerations that could potentially bear upon that inquiry. But whatever

the value of this broad and even aspirational term in other contexts, it has serious drawbacks—as the

present controversy illustrates—when used in a legislative delegation of power to an administrative

agency. Administrative agencies possess only those powers the legislature has expressly granted


       1
         All things being equal, the relevant “public” could mean, e.g., a few individuals, a
neighborhood, a community, all Texans, or conceivably the whole world.
them by statute, together with those necessarily implied from the statutory authority conferred or

duties imposed. See Public Util. Comm’n v. GTE-Southwest, Inc., 901 S.W.2d 401, 407 (Tex. 1995).

Such statutes not only serve as benchmarks against which courts can ascertain whether agencies have

remained within their legislatively conferred authority, but are ultimately the constitutional moorings

of the administrative state within a government founded on separation-of-powers principles. See

City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex. 2006) (confirming the continued viability of

the delegation doctrine). A statutory mandate that an agency consider the “public interest,” without

further guidance, more closely resembles a restatement of general powers or goals of government2

than an express statutory directive. In more practical terms, such a term invites incursions by

agencies into areas that the legislature never intended (though this case presents the anomaly of an

agency actually disclaiming statutory powers).

               The legislature did not define what it meant by “public interest” in section

27.051(b)(1) of the water code, nor did it specify the criteria that the Railroad Commission must

consider when making that determination. I agree with the appellees and the many amici that

the Court cannot view “public interest” in isolation, but must construe it in its statutory context.

See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003); Helena Chem. Co.

v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). To this extent, I agree that “public interest” in section

27.051(b)(1) is not an unqualified delegation of policymaking power, nor is it wholly without

objective meaning; instead, it is necessarily limited by the statutory context in which it appears.

Nonetheless, I ultimately must agree with my colleagues regarding the narrow, largely theoretical




       2
         E.g., U.S. Const. pmbl. (“We the people of the United States, in order to . . . promote the
general welfare . . . do ordain and establish this Constitution . . . . ).

                                                  2
issue presented in this proceeding—there is nothing in the statutory scheme related to the

Railroad Commission or its injection-well program evidencing legislative intent to limit the

Commission’s statutory authority or jurisdiction in a manner that would preclude it from considering

the public-safety factors presented below in its assessment of the “public interest” bearing on its

issuance of an injection-well permit. Because the Commission’s order was premised on a narrower

understanding of its statutory powers, I agree that remand is appropriate3 and join in overruling

the Commission’s motion for reconsideration en banc.              I also join in Justice Waldrop’s

acknowledgments that the existence of the Commission’s statutory power to consider

“public interest” factors does not imply how the Commission should exercise it in determining the

weight any particular proffered “public interest” consideration should be given, as informed by its

judgments of fact or policy. ___ S.W.3d ___, ___ (Waldrop, J., concurring opinion to denial of en

banc consideration); see also Public Util. Comm’n of Tex. v. Texas Tel. Ass’n, 163 S.W.3d 204, 213

(Tex. App.—Austin 2005, no pet.) (“It is within the [Public Utility] Commission’s authority to

decide what public interest means in a particular case . . . [and it] has wide discretion in determining

what factors to consider when deciding whether something serves the public interest.” (citation

omitted)).



                                               _____________________________________________

                                               Bob Pemberton, Justice

Joined by Chief Justice Law, Justices Puryear and Waldrop

Filed: May 23, 2008


        3
            See Tex. Gov’t Code Ann. § 2001.174(2)(D) (West 2000).

                                                   3
