       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-17-00499-CV


   Nicky E. Dyer; Flora Harrell; Edgar Hoagland; Shirley Hoagland; James Langston;
           James A. Langston, III; Lois Nelson; Brian Rodel; Richard Ward;
      Edwin A. (Art) Wilson; Montgomery County; and City of Conroe, Appellants

                                               v.

 Texas Commission on Environmental Quality; Bryan W. Shaw, in his official capacity as
   Chairman of the Texas Commission on Environmental Quality; Buddy Garcia and
 Carlos Rubinstein, in their official capacities as Commissioners of the Texas Commission
         on Environmental Quality; and TexCom Gulf Disposal, LLC, Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
      NO. D-1-GN-11-001898, THE HONORABLE TIM SULAK, JUDGE PRESIDING



                             DISSENTING OPINION


              Water is a precious resource.     If an entity seeks to dispose of commercial

industrial waste by injecting that waste into the ground, there is a detailed permitting process

enacted by the Texas Legislature to ensure that this waste does not endanger underground

sources of drinking water. See Tex. Water Code § 27.051. In this case, two independent ALJs

recommended denial of such permit applications after years of review and two evidentiary

hearings before SOAH. In granting the permits, the TCEQ essentially disregarded the ALJs’

findings without providing any meaningful reasoning for its decision, a decision the trial court

affirmed.   The majority upholds the TCEQ’s actions only by jettisoning some of the

requirements that the TCEQ must follow when changing an ALJ’s finding of fact or conclusion
of law. See Tex. Gov’t Code §§ 2001.058(e), 2003.047(m). I dissent because I would conclude

that the TCEQ must comply with Section 2001.058(e) of the Texas Government Code, which

requires the TCEQ to state both the “specific reason and legal basis” for each of its changes

when rejecting an ALJ’s PFD. See id. § 2001.058(e).


Texas Government Code Sections 2001.058(e) and 2003.047(m) are not inconsistent

               The majority holds that Sections 2001.058(e) and 2003.047(m) of the

Government Code cannot both apply to the TCEQ because the provisions are inconsistent, and

that Section 2003.047(m) would be rendered “meaningless” if it cannot remain standing on its

own. Ante at ___. Nothing in the text of these statutes suggests that each provision cannot be

read in conjunction with the other. See id. §§ 2001.058(e), 2003.047(m). To the contrary,

Section 2003.047(n) specifically states that Chapter 2001 shall apply “to the extent not

inconsistent with this section.”   Id. § 2003.047(n).    In other words, the Texas Legislature

specifically contemplated the application of both statutes and specified the standard for

determining when to apply both. It did not say to apply both statutes so long as doing so would

have separate legal significance, or so long as the statutes do not have any overlap or duplication

in subject matter. It said to apply both statutes to the extent they are not inconsistent; here the

standard for modifying an ALJ’s PFD in Chapter 2001 is not inconsistent with Section

2003.047(m), as it contains no standard for modifying a PFD. By concluding otherwise, the

majority ignores the standard the Legislature specifically instructed should be applied and creates

its own, new rule. The TCEQ is required to meet the requirements of both statutes, including the

standard for modifying set forth in Section 2001.058(e), and it has not done so.




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               I also disagree that this construction would render Section 2003.047(m)

meaningless. Section 2003.047(m) adds an additional requirement that Section 2001.058(e) does

not—that “any [amendment] and order [by the TCEQ] shall be based solely on the record made

before the administrative law judge.” Id. § 2003.047(m). It is not unreasonable to assume that

the Legislature wanted to impose an additional restriction on the TCEQ’s ability to unilaterally

change ALJ decisions, which are reached by independent decisionmakers who, like a jury, heard

the testimony and could make determinations such as witness credibility that an agency

reviewing a cold record cannot. Additionally, if Section 2001.058(e) is not read in conjunction

with Section 2003.047(m), and as a result the TCEQ is not required to give specific reasons and

legal bases for its changes, it significantly interferes with a reviewing court’s ability to determine

whether the agency’s changes were based solely on the record before the ALJ. The record may

reveal many things, but it does not reveal the legal and factual analyses the TCEQ utilizes in its

decision making.

               Finally, while this issue has not been squarely addressed by appellate courts,

Texas courts of appeals have previously applied both statutes when reviewing TCEQ decisions

modifying an ALJ’s decision. See Wood v. Texas Comm’n on Envtl. Quality, No. 13-13-00189-

CV, 2015 Tex. App. LEXIS 2139, at *30-31 (Tex. App.—Corpus Christi Mar. 5, 2015, no pet.)

(mem. op.) (holding that changes to ALJ’s findings met requirements of both section

2001.058(e) and section 2003.047(m)); Travis County v. Texas Comm’n on Envtl. Quality,

No. 07-12-00457-CV, 2014 Tex. App. LEXIS 4624, at *24-26 (Tex. App.—Amarillo Apr. 29,

2014, pet. denied) (mem. op.) (acknowledging applicability of both section 2001.058(e) and

section 2003.047(m) to modification of solid-waste-disposal permit).



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Even the requirements of Section 2003.047(m) have not been met

               Even if Section 2003.047(m) solely applies to the TCEQ’s amendments to the

ALJ’s findings, I would still conclude that it has not provided “an explanation of the basis of the

amendment” as required by the statute. The “explanation” provided by the TCEQ as to why

numerous findings and conclusions should be reversed provides no rationale to support changing

very specific findings of fact and conclusions of law.       Instead, it merely makes sweeping

assumptions about the likelihood of groundwater contamination. For example, the TCEQ’s

explanation states that “no adverse health or welfare effects will result from the injection of

commercial non-hazardous waste into TexCom’s injection wells” without explaining how any

specific portion of the record supports that conclusion.      While the TCEQ may give us a

justification for their change, i.e., changing the permit approval because the TCEQ believes that

“no adverse health or welfare effects will occur,” it never provides any explanation as to “why”

it disagrees with the ALJs’ finding to the contrary, such as “the ALJ ignored the testimony of

witness X regarding migration,” etc. Before the TCEQ can make such drastic changes, which

may affect our underground sources of drinking water, the State of Texas deserves the

explanation required by law.

               For the above reasons, I dissent from the majority’s decision affirming the trial

court’s judgment.

                                             __________________________________________

                                             Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Goodwin and Kelly

Filed: May 22, 2019



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