author: JAN P. PATTERSON, Justice.

text:
    SWEPI LP, Appellant, v. RAILROAD COMMISSION OF TEXAS and Hidalgo County, Appellees.
    No. 03-09-00425-CV.
    Court of Appeals of Texas, Austin.
    May 11, 2010.

      Dan Miller, McElroy, Sullivan & Miller, L.L.P., Austin, for Appellant.
    Laura E. Miles-Valdez, Asst. Atty. Gen., Jamie Nielson, Austin, for Appellees.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

JAN P. PATTERSON, Justice.

SWEPI LP appeals from the district court’s judgment affirming final orders of appellee the Railroad Commission of Texas and granting the Commission’s plea to the jurisdiction on SWEPI’s declaratory claims. In its final orders, the Commission approved two applications for “qualified subdivisions” pursuant to chapter 92 of the natural resources code and the Commission’s companion rule 76. See Tex. Nat. Res.Code Ann. §§ 92.001-.007 (West 2001) (“chapter 92”); 16 Tex. Admin. Code § 3.76 (2009) (Tex.R.R. Comm’n, Commission Approval of Plats for Mineral Development) (“rule 76”). Because we conclude that the district court did not err in affirming the Commission’s final orders and granting its plea to the jurisdiction, we affirm the district court’s judgment.

BACKGROUND

Chapter 92 and Rule 76

We begin by providing a brief overview of the relevant statutory scheme and common law to give context to the parties’ arguments. Under the common law, the mineral estate is dominant, and a mineral estate owner’s right to develop includes an implied right to use the surface estate in ways reasonably necessary to carry out its operations as long as the operations are consistent with the common law requirement to reasonably accommodate the current uses of the surface. See Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex.1971); Texas Genco, LP v. Valence Operating Co., 187 S.W.3d 118, 121-22 (Tex.App.-Waco 2006, pet. denied) (discussion of “accommodation doctrine”); Davis v. Devon Energy Prod. Co., 136 S.W.3d 419, 423-24 (Tex.App.-Amarillo 2004, no pet.) (discussion of common law balance between the mineral and surface estates of the use of the surface and the accommodation doctrine).

In 1983, the Texas Legislature enacted chapter 92. See Tex. Nat. Res.Code Ann. §§ 92.001-007 (“Mineral Use of Subdivided Land”). Chapter 92 provides a statutorily granted exception to the common law. It provides a procedure for owners of surface estates to limit mineral estate owners’ use of the surface based upon the surface’s future development, delegating administration of the procedure to the Commission. See id. § 92.004. The commission has jurisdiction over oil and gas wells in Texas and persons owning or engaged in drilling or operating oil and gas wells in Texas. See id. § 81.051 (West 2001) (“Jurisdiction of Commission”).

Section 92.003 provides that “surface owners of a parcel of land may create a qualified subdivision on the land if a plat of the subdivision has been approved by the railroad commission and filed with the clerk of the county in which the subdivision is to be located.” See id. § 92.003. Section 92.002(3) defines a “qualified subdivision” as follows:

(3) “Qualified subdivision” means a tract of land of not more than 640 acres:
(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 borders a county having a population in excess of 400,000 or located on a barrier island;
(B) that has been subdivided in a manner authorized by law by the surface owners for residential, commercial, or industrial use; and
(C) that contains an operations site for each separate 80 acres within the 640-acre tract and provisions for road and pipeline easements to allow use of the operations site.

Id. § 92.002(3).

Within an approved qualified subdivision, the mineral estate owner’s use of the surface is limited to “designated operations sites for exploration, development, and production of minerals and the designated easements only as necessary to adequately use the operations sites.” Id. § 92.005. “ ‘Operations site’ means a surface area of two or more acres located in whole or in part within a qualified subdivision, designated 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 create a qualified subdivision “must be accompanied by a plat of the subdivision showing the applicant’s proposed location of operations sites and road and pipeline easements.” Id. § 92.004(a).

After notice to the applicant and owners of possessory mineral interests, the Commission must hold a hearing on the application to “consider the adequacy of the number and location of operations sites and road and pipeline easements.” See id. § 92.004(b). “After considering the evidence, the commission shall approve, reject, or amend the application to ensure that the mineral resources of the subdivision are fully and effectively exploited.” Id. An applicant or owner of a possessory mineral interest may appeal the Commission’s order “as provided by law.” Id.; see also Tex. Gov’t Code Ann. § 2001.171 (West 2008) (judicial review of state agency decisions).

The Commission adopted rule 76 to implement chapter 92. See 16 Tex. Admin. Code § 3.76; see also Tex. Nat. Res.Code Ann. § 92.004(a) (commission charged with adopting rules). The subsections of rule 76 at issue substantively track the language in the corresponding sections in chapter 92. With this context, we turn to the parties’ dispute.

The Controversy

In 2004, Betty Eyhorn acquired the surface estate of 1,280 contiguous acres of dry farm land in Hidalgo County. Boston Texas Land and Trust owns the mineral estate of the 1,280 acres, and SWEPI is the owner and operator of an oil and gas lease with Boston Texas Land and Trust that encompassed this acreage. SWEPI has operational wells producing gas on portions of the acreage.

In 2006, Eyhorn recorded plats in the real property records of Hidalgo County and filed two applications accompanied by the recorded plats with the Commission for “qualified subdivisions” of 640 acres each on her land. See 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 gas operations sites and road and pipeline easements. See Tex. Nat. Res.Code Ann. § 92.004(a); 16 Tex. Admin. Code § 3.76(c)(4). At that time, Hidalgo County had an option to purchase the 1,280 acres from Eyhorn and planned to use the acreage for constructing and operating a landfill. The Commission notified SWEPI as an owner of possessory mineral interests, and SWEPI opposed approval of both applications. See Tex. Nat. Res.Code Ann. § 92.004(b); 16 Tex. Admin. Code § 3.76(d). The two applications were considered in consolidated hearings.

In September 2006, SWEPI filed this cause, requesting that the district court enjoin the Commission from holding the hearings because the Commission did not have authority to approve the applications. After a hearing, the district court denied SWEPI’s request and abated this cause until the Commission entered its final orders.

The consolidated hearings were resumed and heard on January 21 and February 22, 2007. The hearing examiners issued a proposal for decision on November 1, 2007, recommending approval of both applications. The evidence was then reopened in January 2008 to receive evidence of a new well that SWEPI drilled after the proposal for decision was issued. The new well was at a surface location outside of the proposed operations sites on one of the subdivisions. Eyhorn provided a revised plat for that subdivision which was admitted into the record. The revised plat provided an additional operations site around the location of the new well.

The hearing examiners thereafter issued an amended proposal for decision, addressing the new well and continuing to recommend approval of both applications. In February 2008, the Commission adopted and incorporated the examiners’ conclusions of law and relevant findings of fact and entered separate final orders approving the two applications. The final order for each qualified subdivision attached and incorporated a metes and bounds description of the subdivision and the revised plat depicting the location of the oil and gas operations sites and easements. SWEPI filed a motion for rehearing on both applications, which motions the Commission overruled.

In May 2008, SWEPI filed an amended petition in this cause, seeking judicial review of the Commission’s final orders under the Texas Administrative Procedure Act. See Tex. Gov’t Code Ann. §§ 2001.001-902 (West 2008 & Supp. 2009) (the “APA”). SWEPI also sought declarations that the Commission’s final orders were in excess of the Commission’s statutory authority and interfered with and impaired a legal right or privilege of SWEPI or, in the alternative, declarations construing SWEPI’s rights under the Commission’s final orders. See id. § 2001.038 (West 2008); Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-011 (West 2008) (Texas Uniform Declaratory Judgments Act) (the “Act”). After Eyhorn sold her land to Hidalgo County, Hidalgo County intervened and Eyhorn withdrew as a party to this cause.

In March 2009, the Commission filed a plea to the jurisdiction on SWEPI’s claims for declaratory relief and, in April 2009, the district court held a hearing on the administrative appeal and the Commission’s plea to the jurisdiction. Following the hearing, the district court affirmed the Commission’s final orders and granted its plea to the jurisdiction. This appeal followed.

ANALYSIS

In five issues, SWEPI contends that the district court erred by affirming the Commission’s final orders and by granting the Commission’s plea to the jurisdiction. SWEPI urges that the Commission exceeded its statutory authority because chapter 92’s plain language does not authorize the Commission to consider or approve two contiguous 640-acre qualified subdivisions on a single parcel of land for the single purpose of landfill operations. As to its declaratory claims, SWEPI contends that the district court had jurisdiction to interpret chapter 92 and rule 76 or, in the alternative, to declare SWEPI’s rights under the Commission’s final orders.

Administrative Appeal of Commission’s Final Orders

In its first three issues, SWEPI challenges the Commission’s final orders under the APA. SWEPI urges that the Commission acted outside of its authority by approving Eyhorn’s applications of two contiguous 640 acres for the “same development on a single parcel of land.” SWEPI also urges that the Commission acted outside its authority by approving the subdivisions because they “had not been subdivided for ‘residential, commercial or industrial use’ ” but for Hidalgo County to construct and operate a landfill. SWEPI further urges that the Commission improperly interpreted and applied rule 76 in a manner that interferes with or impairs a legal right or privilege of SWEPI.

A) Scope and Standard of Review

We may reverse a state administrative agency’s decision that prejudices substantial rights of the complaining party if the decision is in violation of a constitutional or statutory provision, in excess of the agency’s authority, made through unlawful procedure or affected by other error of law, not reasonably supported by substantial evidence, or arbitrary or capricious or characterized 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). SWEPI limits its challenge to the Commission’s authority to consider and approve the final orders. See id. § 2001.174(2)(B).

An administrative agency “has only those powers that the Legislature expressly confers upon it” and “any implied powers that are reasonably necessary to carry out the express responsibilities given to it by the Legislature.” 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 Commission’s authority under chapter 92, and the starting point for construing chapter 92 is the language of the statute itself. See In re City of George-town, 53 S.W.3d 328, 331 (Tex.2001).

We consider questions of statutory construction de novo. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). Wfiien construing a statute, our primary goal is to determine and give effect to the legislature’s intent. Id.; see also Tex. Gov’t Code Ann. § 312.005 (West 2005). To determine legislative intent, we look to the statute 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 begin with the plain language of the statute at issue and apply its common meaning. Id. Where the statutory text is unambiguous, we adopt a construction supported by the statute’s plain language unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999).

We construe administrative rules in the same manner as statutes. See Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999). Unless the rule is ambiguous, we follow the rule’s plain language, and our primary objective is to give effect to the agency’s intent. See id. For this reason, we give deference to an agency’s interpretation of its own rules unless that interpretation is clearly erroneous or contrary to the plain language of the rule. See Public Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex.1991); Cities of Dickinson v. Public Util. Comm’n, 284 S.W.3d 449, 453 (Tex.App.Austin 2009, no pet.).

B) 640-acre Limit for a Qualified Subdivision

In its first two issues, SWEPI contends that the Commission exceeded its statutory authority under chapter 92 and improperly interpreted and applied rule 76 by approving two contiguous qualified subdivisions that are in excess of 640 acres combined on a single parcel of land. SWEPI urges that the plain meaning of “not more than 640 acres” in the definition of “qualified subdivision” in section 92.002(3) and rule 76(a)(4) is as a statutory cap or “absolute limit” on the amount of acres that can be approved as a qualified subdivision on a single parcel of land. See Tex. Nat. Res.Code § 92.002(3); 16 Tex. Admin. Code § 3.76(a)(4). SWEPI focuses on the use of the indefinite article “a” in the definition of “qualified subdivision” in the statute and the rule — “a tract of land of not more than 640 acres” — and in the phrase in section 92.003 that “[t]he surface owners of a parcel of land may create a qualified subdivision on the land....” See Tex. Nat. Res.Code Ann. §§ 92.002(3), .003; 16 Tex. Admin. Code § 3.76(a)(4) (emphasis added). Based upon the use of “a” in the phrases “a tract of land of not more than 640 acres,” “a parcel of land,” and “a qualified subdivision,” SWEPI contends that the plain meaning of this language only supports a single 640-acre qualified subdivision per parcel of land. SWEPI argues that to construe chapter 92 and rule 76 to authorize the Commission to approve multiple applications for contiguous qualified subdivisions on a single piece of property, as long as no single application exceeds 640 acres, would give no meaning to the inclusion of “no more than 640 acres.” See City of San Antonio, 111 S.W.3d at 29 (effect must be given to each word and clause so that none are rendered meaningless); see also Tex. Gov’t Code Ann. § 311.021(2) (West 2005) (“[T]he entire statute is intended to be effective.”).

The Commission’s interpretation of chapter 92 and rule 76, however, conforms with the common meaning of the language in both the statute and rule. In drafting statutes, the singular tense includes the plural and the plural tense includes the singular “unless expressly provided otherwise.” Tex. Gov’t Code Ann. § 312.003(b) (West 2005); see id. § 311.012(b) (West 2005) (“The singular includes the plural and the plural includes the singular.”); Frenship Rural High Sch. Dist. v. Central Educ. Agency, 404 S.W.2d 41, 43-44 (Tex. Civ.App.-Austin 1966, writ ref d n.r.e.) (discussing and applying rule that singular includes plural). Here, the legislature did not provide otherwise.

Although the legislature limited a qualified subdivision to “a tract of land of not more than 640 acres,” the legislature did not expressly provide that only one 640-acre qualified subdivision was authorized for a landowner of more than 640 acres. Nor did the legislature expressly require the Commission to consider applications for qualified subdivisions based upon their relation to other proposed subdivisions, such as joint proposed development and relative locations. “Only when it is necessary to give effect to the clear legislative intent can we insert additional words or requirements 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) (declining to read additional words into statute in construing statute).

In contrast to the Commission’s interpretation, SWEPI’s proposed interpretation would require this Court to add additional requirements to the statute that are not contained in its plain language. See Cameron, 618 S.W.2d at 540. We would have to add requirements that would limit a landowner of more than 640 acres to one qualified subdivision on her land even if she planned to develop her entire tract for the same purpose. If the legislature had intended to place such restrictions on qualified subdivisions, it could have written such restrictions into the statute. See id.; see also Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 931 (Tex.2010)(“Courts must not give the words used by the Legislature an ‘exaggerated, forced, or constrained meaning.’”) (quoting City of Austin v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002)). Likewise, if the legislature had intended to effect a cap, it would likely have said so. We may not presume that when the legislature chooses, it opts for opacity. The purpose of the law shall not be sacrificed to a literal interpretation of the article “a.”

The Commission’s interpretation of chapter 92 and rule 76 also conforms with the title and stated purpose of chapter 92. See Tex. Gov’t Code Ann. § 311.023(1), (7) (West 2005) (when construing a statute whether or not ambiguous on its face, courts may consider the “object sought to be obtained” and “title”); McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). Chapter 92 is entitled “Mineral Use of Subdivided Land.” “Subdivide” commonly means “to further divide (what has already been divided).” Webster’s Third New International Dictionary 2274 (2002). Section 92.001 states the legislative purpose behind the enactment of chapter 92:

It is the finding of the legislature that the rapidly expanding population and development of the cities and towns of this state and the concomitant need for adequate and affordable housing and suitable job opportunities call for full and efficient utilization and development of all the land resources of this state, as well as the full development of all the minerals of this state. In view of that finding, it is the intent of the legislature that the mineral resources of this state be fully and effectively exploited and that all land in this state be maintained and utilized to its fullest and most efficient use. It is the further finding of this legislature that it is necessary to exercise the authority of the legislature pursuant to Article XVI, Section 59, of the Constitution of the State of Texas to assure proper and orderly development of both the mineral and land resources of this state and that the enactment of this chapter will protect the rights and welfare of the citizens of this state.

Tex. Nat. Res.Code Ann. § 92.001 (italics added). The Commission’s interpretation is consistent with the plain language of the title and the stated purpose that the legislature intended to address the mineral use of land that has been subdivided and to maximize the development of both the surface and the mineral resources on the subdivided land. Id.

As the hearing examiners explain in the amended proposal for decision concerning the legislature’s intent in enacting chapter 92,

Considering that the stated purpose of the enactment of Chapter 92 of the Code was to achieve full and efficient utilization and development of all the land resources of the state, as well as full development of the minerals of the state, it appears to the examiners implausible that it was intended that the surface owner of a 1,280-acre housing or mixed use development, for example, [would] be prohibited from obtaining the protections of § 92.005 for more than 50% of his development. The definition in § 92.002(3) suggests that the Commission may not approve a distinct subdivision containing more than 640 acres, but it does not expressly forbid approval of two contiguous 640-acre subdivisions created out of a single parcel of contiguous acreage. A more plausible interpretation is that the 640-acre limitation in the definition of “qualified subdivision” was intended to require the surface owner to reserve operations sites and road and pipeline easements for each distinct 640 acres or less and to require independent analysis by the Railroad Commission of the adequacy of such operations sites and easements for the full and efficient exploitation of mineral resources for each distinct 640 acres or less.

The Commission’s interpretation to allow contiguous qualified subdivisions that exceed 640 acres combined for a single proposed development satisfies the legislative intent to balance the competing interests between the surface and mineral estates and serves the legislative intent “that all land in this state be maintained and utilized to its fullest and most efficient use.” Id. (emphasis added).

Chapter 92 as a whole also supports the Commission’s interpretation of the statute and its rule that allows contiguous qualified subdivisions that exceed 640 acres combined for a single proposed development. See City of San Antonio, 111 S.W.3d at 25. Chapter 92 balances the future development of the surface estate against the subsurface mineral resources by requiring the Commission independently to consider the “adequacy of the number and location of operations sites and road and pipeline easements” for each distinct application and by providing minimum requirements for the size and location of the operations sites. See Tex. Nat. Res.Code Ann. § 92.004(b). Each operations site must have at least two acres and each separate 80 acres must have at least one operations site. See id. § 92.002(1), (3)(C); 16 Tex. Admin. Code § 3.76(a)(2), (4)(C). Additionally, after considering the evidence, the Commission must “approve, reject or amend the application to ensure that the mineral resources of the subdivision are fully and effectively exploited.” See Tex. Nat. Res.Code Ann. § 92.004(b); 16 Tex. Admin. Code § 3.76(d). Chapter 92 ensures that the interests of owners of possessory mineral interests are protected for each distinct qualified subdivision that the Commission approves.

The Commission’s interpretation of chapter 92 and rule 76 is reasonable and consistent with the legislative 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 agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.”); Public Util. Comm’n, 809 S.W.2d at 207; Railroad Comm’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) (whether or not statute ambiguous, court may consider administrative construction of statute and legislative history). The legislative history is silent on any intent to place an absolute limit on the number of contiguous qualified subdivision applications that the Commission could consider and approve or the number of applications that a single property owner could file and have approved for a proposed development based upon an absolute limit or statutory cap of acreage.

SWEPI relies upon the amendment in 1987 to section 92.002(3) that increased the acreage for a qualified subdivision from 160 to 640 acres. See Act of June 11,1987, 70th Leg., R.S., ch. 274, § 1, 1987 Tex. Gen. Laws 1616, 1616. SWEPI contends that the Commission’s interpretation makes the amendment from 160 to 640 acres meaningless because, without the amendment, a party could have filed four applications to reach 640 acres of qualified subdivisions. Increasing the size for qualified subdivisions to 640 acres, however, provides certainty and protection for the parties and promotes efficiency by reducing the number of applications required for larger developments.

Moreover, were we to accept SWEPI’s interpretation of the language in chapter 92- and rule 76, such an interpretation would lead to absurd results. Rylander, 6 S.W.3d at 284. For example, an owner of a 1,000-acre property that the owner wanted to develop as a residential subdivision would be limited to an area of 640 acres for qualified subdivisions, without any consideration or balancing between the competing interests of the mineral and surface estates and the “fullest and most efficient use” of the 1,000 acres. See Tex. Nat. Res.Code Ann. § 92.001; see also Tex. Gov’t Code Ann. § 311.023(5) (West 2005) (whether or not statute ambiguous, court may consider “consequences of a particular construction”); Scott, 309 S.W.3d at 931 (court must not give words “exaggerated, forced, or constrained meaning”).

SWEPI analogizes Eyhorn’s two contiguous applications that exceeded 640 acres combined to plaintiffs who attempt to “escape the Legislature’s statutory scheme by artful pleading.” See Murphy v. Russell, 167 S.W.3d 835, 838-39 (Tex.2005) (plaintiffs claim of battery dismissed because substance was medical malpractice claim and, therefore, statutorily required to file expert report); see also In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 (Tex.2007) (orig. proceeding) (“[A]rbitrability turns on the substance of a claim, not artful pleading.”); Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex.2007) (focus of “legal treatment of claims [is] on the true nature of disputes rather than allow artful pleading to morph contract claims into fraud causes of action to gain favorable redress under the law”). We do not find these cases analogous as they focus on a plaintiffs improper re-characterization of a cause of action into a different cause of action. In contrast, Eyhorn complied with the procedures in chapter 92 and rule 76 by filing two separate applications for 640 acres, and she fully informed the Commission and SWEPI of Hidalgo County’s option to buy her land and its plans for developing the two contiguous subdivisions.

Consistent with the powers that the legislature expressly conferred on it, the Commission independently analyzed Eyhorn’s applications, considered the adequacy of the proposed operations sites and easements for each proposed qualified subdivision, and determined that the minerals would be “fully and effectively exploited” on the land comprising the two distinct subdivisions. See Tex. Nat. Res.Code Ann. §§ 92.001, .004(b); 16 Tex. Admin. Code § 3.76(d); Public Util. Comm’n, 53 S.W.3d at 315. Applying the plain language of chapter 92 and rule 76, we conclude that the Commission did not exceed its statutory authority under chapter 92 and did not misinterpret or misapply rule 76 by approving the two separate applications for 640 acres each in its final orders. We overrule SWEPI’s first and second issues.

C) Landfill as “Industrial” Use

In its third issue, SWEPI contends that the Commission exceeded its statutory authority by approving the applications because Eyhorn’s land was not “subdivided in a manner authorized by law by the surface owners for residential, commercial, or industrial use.” See Tex. Nat. Res. Code Ann. § 92.002(3)(B); 16 Tex. Admin. Code § 3.76(a)(4)(B); see also Tex. Gov’t Code Ann. § 2001.174(2)(B). SWEPI specifically urges that the proposed use of a landfill is not an “industrial use” within that term’s common meaning.

SWEPI challenges the Commission’s adoption of the hearing examiners’ finding of fact number 6 and conclusions of law numbers 2 and 3:

6. Each of the proposed qualified subdivisions has been subdivided in a manner authorized by law by the surface owner for industrial use.
a. Eyhorn is the owner of the surface estate of the acreage included in each of the proposed qualified subdivisions.
b. Eyhorn has filed plats of each of the proposed qualified subdivisions with the Railroad Commission showing subdivided lots and the proposed locations of operations sites for exploration, development, and production of minerals and road and pipeline easements necessary to use the operations sites.
c. Under Hidalgo County subdivision rules, approval of the Commissioner’s Court of Hidalgo County of qualified subdivision plats is not required prior to Railroad Commission approval. Under these subdivision rules, a parcel of land is considered subdivided for residential, commercial, or industrial use when a plat delineating tract boundaries, oil and gas operations sites, pipeline easements, road easements or other boundaries is filed with the Railroad Commission as a part of an application for approval of a qualified subdivision.
d. The acreage covered by the two proposed qualified subdivisions is subject to an option to purchase contract between Eyhorn, as current surface owner, and Hidalgo County, as purchaser.
e. Hidalgo County proposes to use each of the proposed qualified subdivisions for a landfill and associated landfill facilities.
2. All things necessary to the Commission attaining jurisdiction over the subject matter and the parties in these dockets have been performed or have occurred.
3. Each of the applications for approval of qualified subdivisions in these dockets meets and complies with all requirements for approval of Chapter 92 of the Texas Natural Resources Code and Railroad Commission Statewide Rule 76.

SWEPI urges that the legislature did not intend landfill operations as the type of use it was trying to protect in enacting chapter 92. SWEPI focuses on references in the legislative history to “buildings,” “developing urban areas,” and “real-estate development.” SWEPI urges that the “focus in adopting the statute was in reconciling the land use needs of local urban real estate development with full and effective development of the state’s mineral resources.” The legislative history, however, is silent on what constitutes an “industrial use.” And the Commission’s interpretation that a landfill is an industrial use within the meaning of section 92.002(3)(B) is reasonable and does not contradict the plain language of the statute. See Moore, 845 S.W.2d at 823; Coppock, 215 S.W.3d at 563. The common meaning of “industrial” when used as an adjective means “of or belonging to industry.” Webster’s Third New International Dictionary 1155 (2002).

That the legislature intended for residential subdivisions or commercial or industrial office parks to fall -within the types of uses allowed under the statute does not preclude other uses, such as landfill operations, from also falling within the types of uses allowed. Section 92.002(3)(A) expressly defines the counties in which a qualified subdivision may be created based upon the population of the county: the tract of land must be “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 borders a county having a population in excess of 400,000.” See Tex. Nat. Res.Code Ann. § 92.002(3)(A). Other than the population requirement, there is no expressed restriction that a qualified subdivision only be in urban areas or for development that includes buildings. See id.; Cameron, 618 S.W.2d at 540.

SWEPI relies upon subsection (c) of section 92.005 to support that the legislature 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 circumstances when the restrictions on an owner of a possessory mineral interest in a qualified subdivision cease to apply:

(c) This section ceases to apply to a subdivision if, by the third anniversary of the date on which the order of the commission becomes final:
(1) the surface owner has not commenced actual construction of roads or utilities within the qualified subdivision; and
(2) a lot within the qualified subdivision has not been sold to a third party.

See id. SWEPI focuses on the requirement in subsection (c)(2) that a lot be sold to a third party to support that the uses intended were “urban real estate development, like residential subdivisions and commercial or industrial office parks.” But the plain language of subsection (c) is that both subsections (1) and (2) must apply for the restrictions on the owner of the possessory mineral interest to cease. If construction of roads or utilities is commenced -within three years of the order from the Commission becoming final— whether or not a lot is sold to a third party — section 92.005(c) does not apply. See City of San Antonio, 111 S.W.3d at 25. Section 92.005(c) does not support limiting “industrial use” as SWEPI proposes.

Applying the common meaning of “industrial use,” we conclude that the Commission did not exceed its statutory authority by interpreting “industrial use” to include landfill operations. See Tex. Nat. Res.Code Ann. § 92.002(3)(B); 16 Tex. Admin. Code § 3.76(a)(4); City of San Antonio, 111 S.W.3d at 25. We overrule SWEPI’s third issue.

Declaratory Relief

In its fourth and fifth issues, SWEPI contends that the district court erred in granting the Commission’s plea to the jurisdiction as to its declaratory claims under the Act and under section 2001.038(a) of the government code. Alternatively, SWEPI contends that the district court erred in granting the Commission’s pleas as to its alternative requests for declaratory relief concerning the meaning of the Commission’s final orders.

In its plea to the jurisdiction, the Commission contended that the district court did not have jurisdiction of S WE Pi’s declaratory claims because those claims were redundant of its claims challenging the Commission’s final orders under section 2001.174 of the APA and that full relief was available to SWEPI as part of its suit for judicial review of the Commission’s final orders. SWEPI urges that it pled and proved that its requests for declaratory relief did not duplicate its administrative appeal but were broader because a decision on the administrative appeal “[did] not necessarily settle the underlying dispute between the parties over the scope of the Commission’s authority.” See Texas Mun. Power Agency v. Public Utility Comm’n, 253 S.W.3d 184, 200 (Tex.2007) (remanding declaratory claims that are “distinct from and not duplicative of the claims for judicial review of Commission orders”).

We review the trial court’s ruling on a plea to the jurisdiction de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). A plea to the jurisdiction is a dilatory plea that contests the trial court’s authority to determine the subject matter of the cause of action without regard to whether the claims asserted 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 rights, status, or legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a). Section 2001.038(a) of the government code provides, “The validity or applicability of a rule ... may be determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.” Tex. Gov’t Code Ann. § 2001.038(a).

A declaratory judgment claim “will not lie” when it is “redundant” of a parallel administrative appeal and the “remedy under the APA is the same as that provided under the [Act]” — reversal of the agency’s final order. Texas Mun. Power Agency v. Public Util. Comm’n, 260 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 Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex.App.Austin 1998, pet. denied) (“When a statute provides a method for attacking an agency order, a declaratory judgment action directed at that order will not lie.”); Texas Dep’t of Transp. v. Texas Weekly Advocate, No. 03-09-00159-CV, 2010 WL 323075, at *3, 2010 Tex.App. LEXIS 566, at *8 (Tex.App.-Austin Jan. 29, 2010, no pet.) (mem. op.) (“A [declaratory judgment] action cannot stand if there is a pending action that resolves the exact issues raised under the [Act].”) (citing and quoting Texas Liquor Control Bd., 456 S.W.2d at 895).

Here it is clear that SWEPI’s declaratory claims duplicate its claims and available remedies under its administrative appeal of the Commission’s final orders. SWEPI sought the following declarations in its pleadings:

• Section 92.002(3) of the Code and Statewide Rule 76(a)(4) limit the Commission’s authority to consider and/or approve applications for “qualified subdivisions” to no more than 640 acres;
• The Commission had no authority to consider or approve the Applications, because to do so was tantamount to considering and approving a “qualified subdivision” of more than 640 acres;
• The Commission exceeded its statutory authority and violated its own rule by considering and approving the Applications;
• The Commission exceeded its statutory authority and violated its own rule when it refused to dismiss the Applications upon [SWEPI]’s motion;
• The Commission exceeded its statutory authority and violated its own rule when it adopted the orders ..., effectively granting “qualified subdivision” status to a tract of more than 640 acres; and
• The Commission has applied Statewide Rule 76 in a manner that interferes with or impairs a legal right or privilege of [SWEPI].
• The words “residential, commercial and industrial use” as found in the definition of “qualified subdivision” in Tex. Nat. Res.Code § 92.002(3)(B), do not include a use as a landfill within the meaning of these terms.
• The words “residential, commercial and industrial use” as found in the definition of “qualified subdivision” in Statewide Rule 3.76(a)(4)(B), do not include a use as a landfill within the meaning of these terms.

SWEPI’s declaratory claims are based upon the same statutory construction arguments that it made at the consolidated hearings before the Commission and that it made to the district court in its administrative appeal of the Commission’s final orders. An available remedy in its administrative appeal was the reversal of the Commission’s orders if the orders were “in excess of the agency’s statutory authority.” See Tex. Gov’t Code Ann. § 2001.174(2)(B). The district court necessarily decided the substance of SWEPI’s declaratory claims when it affirmed the Commission’s final orders — interpreting chapter 92 and rule 76 to authorize the Commission to approve Eyhorn’s two applications for contiguous qualified subdivisions of 640 acres each and for development as a landfill. See id. SWEPI’s declaratory claims would provide no additional relief.

SWEPI cites City of Waco v. Texas Natural Resource Conservation Commission, 83 S.W.3d 169 (Tex.App.-Austin 2002, pet. denied), to support the district court’s jurisdiction to consider its declaratory claims. We find the analysis in City of Waco inapplicable here. In that case, this Court held that the district court had jurisdiction to consider the city’s request for a declaration that the TNRCC could not grant additional permits in a watershed area until the city complied with federal regulations that were incorporated into state law. Id. at 173. Unlike here, the City was not attacking an agency order or rule, and the only ground for dismissal that the TNRCC raised was one of ripeness — “that the controversy [was] hypothetical and not ripe for adjudication apart from a specific permit application.” Id. at 178. This Court made clear that “[t]he City [was] not appealing from a specific agency action and [was] not challenging the validity or application of an agency rule,” but rights it alleged it was afforded under federal regulation. Id. In that context, this Court held that the district court had jurisdiction to consider the city’s request for declaratory relief “on a purely legal issue.” Id. at 178.

As to SWEPI’s alternative claims for declarations of its legal rights, status, and relations under the Commission’s final orders, SWEPI contends that there is confusion surrounding the restrictions placed on SWEPI because it is not clear if SWEPI is subject to the original plats filed and approved by Hidalgo County or if the revised plats that the Commission approved and incorporated into its final orders replaced the plats originally filed in Hidalgo County. SWEPI’s complaint focuses on alleged uncertainty created by Eyhorn’s filing of amended plats for the subdivisions during the pendency of the applications before the Commission and concerns that Hidalgo County may impose restrictions on SWEPI in the future based upon the original plats.

Section 92.004(a) specifies that applications must be accompanied by a plat of the subdivision showing the proposed locations of operation sites and easements. See Tex. Nat. Res.Code Ann. § 92.004(a). But section 92.004(b) authorizes the Commission itself to amend a plat prior to approval and section 92.006 expressly allows a surface owner to abandon, replat, or amend any portion of a subdivision as long as the amendment or replatting is approved by the Commission. See id. §§ 92.004(b), .006. Section 92.006 further protects the owner of possessory mineral interests because an amendments or replat “may not alter, dimmish, or impair the usefulness of an operations site or appurtenant road or pipeline easement unless the amendment or replat is approved by the commission in accordance with Section 92.003 of this Code.” See id. § 92.006. Here Eyhorn’s revisions to the plats were made in part to provide more surface area for SWEPI’s oil and gas operations sites and to accommodate the new well that SWEPI drilled on one of the subdivisions during the pendency of the applications before the Commission.

In any event, the Act may not be used to obtain an impermissible advisory opinion to interpret the Commission’s final orders. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (Act “merely a procedural device for deciding cases already within a court’s jurisdiction rather than a legislative enlargement of a court’s power, permitting the rendition of advisory opinions”); Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, 827-28 (1958) (request for a declaratory judgment of meaning of agency order and its various provisions seeking impermissible advisory opinion).

We conclude that the district court did not err in granting the Commission’s plea to the jurisdiction concerning SWEPI’s declaratory claims. We overrule SWEPI’s fourth and fifth issues.

CONCLUSION

Having overruled SWEPI’s issues on appeal, we affirm the district court’s judgment, affirming the Commission’s final orders and granting the Commission’s plea to the jurisdiction on SWEPI’s declaratory claims.

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-.011 (West 2008) (Texas Uniform Declaratory Judgments Act) (the "Act”); Tex. Gov’t Code Ann. §§ 2001.001-.902 (West 2008 & Supp. 2009) (Texas Administrative Procedure Act) (the "APA").

      . " 'Possessory mineral interest’ means a mineral interest that includes the right to use the land surface for exploration and production of minerals.” Tex. Nat. Res.Code Ann. § 92.002(2) (West 2001).

      . The subdivision plats bear the signature of the county judge and attestation by the county clerk that the Hidalgo County Commissioner's Court reviewed and approved the plats for the two subdivisions in February 2006.

      . In September 2006, Eyhorn provided SWEPI and the Commission with revised plats for both subdivisions and advised them that the revised plats would be the basis for Eyhorn's case at the consolidated hearings. Among the revisions, these plats increased the size of the proposed oil and gas operations sites. The revised plats designate approximately 140 acres and 139 acres for oil and gas operations sites in the two subdivisions respectively.

      . SWEPI filed an accelerated appeal from the district court's denial of its request for injunc-live relief with this Court, but it was dismissed for want of prosecution in June 2007. SWEPI LP v. Railroad Commission, No. 03-06-00599-CV, 2005 WL 5644360 (Tex.App.Austin June 18, 2007) (mem. op.), available at http://www.3rdcoa.courts.state.tx.us/opinions/ Opinion. asp?OpinionID= 15959.

      .Prior to the hearing in January 2007, Hidal-go County amended its subdivision rules to address qualified subdivisions for purposes of chapter 92. Although SWEPI challenged the amendments in the district court, SWEPI does not challenge them on appeal.

      . Section 92.003 addresses who may create a qualified subdivision, limiting creation of a subdivision to “the surface owners of a tract of land.” See Tex. Nat. Res.Code Ann. § 92.003 (West 2001).

      .Prior to the approval of the final orders here, the Commission simultaneously had approved applications for contiguous qualified subdivisions that exceeded 640 acres combined. See Texas Railroad Comm’n, Application of Affiliate Crown Development, Ltd. to Consider Approval of a Qualified Subdivision Pursuant to Statewide Rule 76 for a 407.40 Acre Tract Subdivision in Montgomery County, Texas, Docket No. 03-0245063 (January 24, 2006) (final order granting application); Texas Railroad Comm’n, Application of Affiliate Crown Development, Ltd. to Consider Approval of a Qualified Subdivision Pursuant to Statewide Rule 76 for a 535 Acre Tract Subdivision in Montgomery County, Texas, Docket No. 03-0245064 (January 24, 2006) (final order granting application).

      . The legislature also amended section 92.002(3) by requiring the designation of two or more acres as an operations site for each separate 80 acres within a qualified subdivision and by allowing qualified subdivisions on barrier islands. See Act of June 11, 1987, 70th Leg., R.S., ch. 274, § 1, 1987 Tex. Gen. Laws 1616, 1616. Prior to the amendment, a qualified subdivision had to contain two or more operations sites within the 160 acres. See id.

      . For example, prior to the 1987 amendment, a developer with two 640 acre tracts would have to file and pursue eight qualified subdivision applications with the Commission, increasing the expense for the applicant and any contestants and risk to the applicant that one application will fail and jeopardize the entire project. See id.

      . SWEPI does not challenge the hearing examiners' conclusion of law number 4 that was adopted by the Commission in its final orders. The hearing examiners concluded: "Approval of each of the applications in these dockets will ensure that the mineral resources of each of the qualified subdivisions are fully and effectively exploited and developed.”

      . SWEPI contends that chapter 92 should be strictly construed because it deprives SWEPI of its common law right to use as much of the surface as reasonably necessary in order to develop the minerals. SWEPI urges that a larger subdivision more severely limits oil and gas operations because there is a larger area that cannot be reached. If a statute "deprives a person of a common law right, the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview.” Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969). Given our conclusion that the plain language of the statute supports the Commission’s interpretation, it follows that the interpretation does not extend the statute "beyond its plain meaning.” See id.

      . Without providing additional argument or authorities, SWEPI contends that the Commission’s final orders also are "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” See Tex. Gov’t Code Ann. § 2001.174(2)(F) (West 2008). For the same reasons that we conclude that the Board did not exceed its statutory authority, we also conclude that the Commission’s orders were not arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. See id.

      . The House Committee on Energy in its bill analysis references by way of background that "cities are expanding out over adjacent farm and ranch land to meet the needs of the people for residential, commercial, and industrial buildings.” House Comm. on Energy, Bill Analysis, Tex. S.B. 946, 68th Leg., R.S. (1983). The bill analysis from the senate natural resources committee states in the background section that "bank[s] or other lending institutions are reluctant to lend construction capital if there is a possibility that the building they finance, such as a warehouse, might later be demolished by the subsurface mineral owners in order for the minerals to be brought to the surface.” Senate Comm, on Nat. Res., Bill Analysis, Tex. S.B. 946, 68th Leg., R.S. (1983). The House Research Organization noted that chapter 92 was passed to allow “both real-estate development and mineral exploration.” House Research Organization, Daily Report for May 20, 1987.

      . Interpreting "industrial use” to include landfill operations is consistent with traditional zoning concepts of "industrial use districts." See Robert M. Anderson, 2 American Law of Zoning 3d § 9.44 (1986) ("Industrial districts traditionally have been the receptacle into which all uses are placed after those worthy of protection have been provided for. Not infrequently these zones have been denominated ‘unrestricted,’... ”); Patrick J. Rohan, 7 Zoning and Land Use Controls § 39.06 (2009) ("Traditional zoning schemes place industrial uses at the bottom of the hierarchy of uses. Thus, beginning with what is considered the highest, most sensitive use of property, the single-family detached home, zoning codes typically move down through high density residential uses and commercial uses before they reach the lowest classification, industrial use.”).

      . A surface owner also may create a qualified subdivision on a tract of land on a barrier island. See Tex. Nat. Res.Code Ann. § 92.002(3)(A) (West 2001).

      . Prior to Eyhorn's applications, the Commission had considered and approved a qualified subdivision application for landfill operations. See Texas Railroad Comm'n, Application of E & D Waste Systems, Inc. for Approval of a Qualified Subdivision Pursuant to Statewide Rule 76 for a 99.9733 Acre Tract of Land in Abstracts Nos. 601 and 607, Galveston County, Texas, Docket No. 3-84,416 (Oil & Gas Div'n August 19, 1985) (final application approving qualified subdivision for use as a landfill).

      . SWEPI’s reliance on El Paso Hospital District v. Texas Health and Human Services Commission, 247 S.W.3d 709 (Tex.2008), and City Public Service Board of San Antonio v. Public Utility Commission, 96 S. W.3d 355 (Tex.App.-Austin 2002, no pet.), is similarly misplaced. Neither case addressed the issue raised by the Commission here — whether asserted declaratory claims were redundant of the issues and available remedies in a parallel administrative appeal. In El Paso Hospital, the issue was whether the agency’s method of calculating certain rates was an agency rule and, if so, if it was valid. 247 S.W.3d at 711. And in City Public Service, this Court addressed the direct appeal provisions of the public utilities act. 96 S.W.3d at 356.

      . Eyhorn initially filed a proposed subdivision plat, a metes and bounds description and use restrictions, and a "map of topograph and drainage” with Hidalgo County for both subdivisions. The revised plats that were approved by the Commission consist of one page per subdivision depicting the location of the oil and gas operations sites and easements.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2009 Ark. 81
    Herman BROCK, Appellant, v. Tab TOWNSELL, Mayor of the City of Conway, Arkansas, Appellee.
    No. 08-807.
    Supreme Court of Arkansas.
    Feb. 19, 2009.
    James F. Lane, Conway, for appellant.
    Michael L. Murphy, Conway City Att’y, and Kurt J. Meredith, Deputy City Att’y, Conway, for appellee.
   PER CURIAM.

_JjAppellant Herman Brock appeals from the circuit court’s order granting Appellee Tab Townsell’s motion for summary judgment and denying his own motion for summary judgment. Because Appellant has submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule 4 — 2(a)(8) (2008), we order re-briefing.

Rule 4-2(a)(8) provides, in pertinent part:

Following the signature and certificate of service, the appellant’s brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.

Ark. Sup.Ct. R. 4-2(a)(8). The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Arkansas Supreme Court Rule 4 — 2(b)(3):

Whether or not the appellee has called attention to deficiencies in the |2appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

Ark. Sup.Ct. R. 4-2(b)(3).

Here, Appellant’s brief is deficient due to the fact that his addendum lacks relevant pleadings essential to an understanding of the case. The record reveals that the case was decided by the circuit court upon cross motions for summary judgment. However, the addendum fails to include both motions for summary judgment, the responses and replies thereto, and the briefs in support thereof. Appel-lee’s answer to Appellant’s amended and substituted complaint also does not appear in the addendum.

Because Appellant has failed to comply with our rules, we order him to file a substituted addendum and brief within fifteen days from the date of entry of this order. If Appellant fails to do so within the prescribed time, the order appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted addendum and brief, Appellee shall have an opportunity to revise or supplement his brief in the time prescribed |3by the clerk.

Rebriefing ordered.


author: JIM HANNAH, Chief Justice.

text:
    2009 Ark. 109
    Ronald SUTTON and Bonnie Sutton, Appellants, v. Lonnie SUTTON and Lorene Sutton, Appellees.
    No. 08-613.
    Supreme Court of Arkansas.
    March 5, 2009.
    Walters & Gaston, by: Amanda R. Cox and Troy Gaston, Greenwood, for appellants.

      Christian & Byars, by: Eddie N. Christian, Fort Smith, for appellees.
   JIM HANNAH, Chief Justice.

[ [Appellants Ronald and Bonnie Sutton appeal a decision of the Scott County Circuit Court finding that a reservation in a warranty deed was ineffective to retain their title to mineral rights. Appellants assert that the circuit court erred in failing to decide that, based on their subjective intent in drafting the deed, they retained fifty percent of the mineral rights in the property. We disagree and affirm. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(4) and (5).

Appellants came to Arkansas from Wisconsin and purchased the property at issue from William and Etta White. In the 1987 deed from the Whites to appellants, the Whites reserved fifty percent of the mineral rights in the property. The deed was held in escrow with the Scott County Bank.

| gAppellants’ son Lonnie, along with his wife Lorene, also moved to Arkansas about this same time. It appears that Lonnie and Lorene paid half the down payment on the property and each month contributed one-half the payment. However, their names were not included as grantees on the deed when it was drafted. Rather, two years after purchase of the property, and prior to recording the deed, they were added as grantees under the deed by in-terlineation. No evidence showed who made the alteration of the deed. However, it appears this alteration was made about the time a mortgage was issued on the property, and Lonnie and Lorene, along with appellants, were shown as owners of the property on that mortgage.

The validity of the 1987 deed was not an issue before the circuit court and is not argued on appeal; therefore, we do not address whether the deed is valid. The deed conveyed an individual one-half interest in the property to appellants and an individual one-half interest in the property to Lonnie and Lorene. The Whites retained an individual one-half interest in the mineral rights. Appellants received an individual twenty-five percent interest in the mineral rights, and Lonnie and Lorene received an individual twenty-five percent interest in the mineral rights.

Lonnie and Lorene later divorced, and in 1996, appellants conveyed a fifty percent interest in the surface rights by warranty to Lonnie and included the following paragraph regarding mineral rights:

IsSUBJECT, however, to a reservation by the seller of an undivided one-half interest in and to all of the oil, gas, coal and other minerals in and under the said property, together with the right to enter on the property for the purpose of exploration for or development of the same.

Lonnie subsequently conveyed his entire interest in the property to Lorene by quitclaim deed. The quitclaim deed also reserved fifty percent of the mineral rights. Lorene testified in the action to quiet title that she believed that her former in-laws owned twenty-five percent of the mineral rights. Appellants testified that they believed that they owned fifty percent of the mineral rights.

Appellants argue that the mineral-rights reservation language in the 1996 deed did no more than put Lonnie on notice that he was receiving no mineral rights, and that appellants retained all their mineral rights. They argue that the subjective intent of the parties was shown by the testimony before the circuit court. We decline to decide this case on subjective intent not manifested in the language of the warranty deed. We rejected this same argument in Peterson v. Simpson, 286 Ark. 177, 690 S.W.2d 720 (1985), where we adopted the Duhig rule. The Duhig rule provides that when an owner of a fractional mineral interest executes a warranty deed without limiting the interest in the minerals granted, the grant and reservation of mineral rights in the warranty deed cannot both be given effect, the reservation fails, and the risk of title is on the grantor. See Duhig v. Peavy-Moore Lumber 4Co., 135 Tex. 503, 144 S.W.2d 878 (1940).

In adopting the Duhig rule in Peterson, we set out the reason for rejecting the subjective-interest approach:

Subsequent purchasers, or grantees, must be able to rely upon this interpretation or else, under these type of circumstances, every title would require a lawsuit in order to be alienable. Rejection of the Duhig Rule would mean sacrificing the degree of certainty and guidance that it can provide concerning marketability of mineral interests, and replacing it with an outbreak of lawsuits. This we are not willing to do.

Peterson, 286 Ark. at 181, 690 S.W.2d at 723.

We also discussed application of the Du-hig rule:

Therefore, the proper procedure to follow in cases which do not involve the original grantor and his immediate grantee, as here, is to arrive at the meaning of the deed according to rules of objective construction, which we now hold to include application of the Duhig rule. Subjective considerations are not appropriate in such cases. Accordingly, with respect to such reservations contained in warranty deeds, a subsequent grantee is to receive that percentage of mineral interest in the land not reserved to the grantor, since the deed purports to deal with 100% of the minerals. If both the grant and reservation cannot thereby be given effect, the reservation must fad and the risk of title loss is on the grantor.

Peterson, 286 Ark. at 181, 690 S.W.2d at 723.

Peterson controls this case. We apply the rules of objective construction, including the Duhig rule. Because the deed purports to reserve fifty percent of the mineral rights and convey fifty percent of the mineral rights, the deed attempts to convey one-hundred percent of the mineral rights. However, appellants owned only twenty-five percent of the mineral frights, so both the grant and reservation cannot be given effect. Therefore, the reservation must fail, and the risk of title loss is on the grantor. Appellants, therefore, passed what mineral rights they had to Lonnie in the 1996 deed, and their twenty-five percent interest in the mineral rights became his. Lonnie then passed his entire interest to Lorene through the quitclaim deed. This included the twenty-five percent interest in mineral rights he received from appellants in the 1996 deed and any interest he had in the twenty-five percent that was passed to Lorene and him in the 1987 deed from the Whites. Thus, Lorene currently holds fifty percent of the mineral rights in the subject property.

Affirmed.

DANIELSON, J., not participating.

      . The appellants cite us to Hill v. Gilliam, 284 Ark. 383, 682 S.W.2d 737 (1985), for the proposition that subjective intent should prevail. Hill is not on point. In Peterson v. Simpson, 286 Ark. 177, 690 S.W.2d 720 (1985), we noted that the Duhig rule applies to construction of warranty deeds; in Hill, the deed at issue was a quitclaim deed.


author: ROBERT L. BROWN, Justice.

text:
    2009 Ark. 111
    ASBURY AUTOMOTIVE USED CAR CENTER, Appellant, v. Patric BROSH, Mark Lunsford, Mel Anderson, NCAS, LLC, and New Century Autosales Corp., Appellees.
    No. 08-526.
    Supreme Court of Arkansas.
    March 5, 2009.

      Warner, Smith & Harris, PLC, Fort Smith, by: G. Alan Wooten and Stephanie Harper Easterling, for appellant.
    Conner & Winters, LLP, Fayetteville, by: John R. Elrod, Todd P. Lewis, and Kerri E. Kobbeman, for appellees.
   ROBERT L. BROWN, Justice.

| Appellant Asbury Automotive Used Car Center (“Asbury”) appeals the order of the circuit court denying its motion for attorneys’ fees and costs pursuant to Arkansas Code Annotated section 16-22-308. We agree with Asbury that the contracts do not control this issue and that fees and costs should be considered by the court under section 16-22-308. Accordingly, we reverse and remand for further proceedings.

The facts leading up to this matter are set out in the opinion following the first appeal of this case. See Asbury Auto. Used Car Ctr., L.L.C. v. Brosh, 364 Ark. 386, 220 S.W.3d 637 (2005) (‘Asbury I”). In the mid-1990s, appellees Patrie Brosh, Mark Lunsford, and Mel Anderson decided to start a business that would sell used cars from Wal-Mart parking lots. |2Brosh, Lunsford, and Anderson started a company, called New Century Auto Sales (“New Century”), another appellee to this action (together “Appellees”). Appellees next entered into a lease agreement with Wal-Mart to sell used cars on its parking lots. After developing a business plan, New Century decided to market the plan and approached Asbury about purchasing it. Asbury expressed interest, and the parties began a lengthy negotiation process. Ultimately, the parties signed the contracts that are the center of the instant dispute — the Purchase Agreement, whereby Asbury agreed to purchase the business plan from New Century and to enter into a new lease agreement with Wal-Mart, and three separate Employment Agreements, whereby Asbury agreed to employ Brosh, Lunsford, and Anderson respectively for an annual base salary of $300,000.

By August 2003, a dispute had arisen among the parties, and Asbury terminated its leases with Wal-Mart and also terminated the Employment Agreements with Brosh, Lunsford, and Anderson. This led to a suit by Appellees against Asbury in February 2004, in which they alleged that Asbury had breached the contracts. The Appellees sought over $23,000,000 in damages. Asbury answered and moved to stay the proceedings and to compel arbitration pursuant to arbitration provisions in the disputed contracts. The circuit court heard the matter and determined that the arbitration provisions lacked mutuality of obligation and, because of this, denied Asbury’s motion. Asbury filed an interlocutory appeal, and this court affirmed the circuit court in Asbury I.

|sThe case was then tried before a jury, which rendered a verdict in favor of As-bury. The jury specifically found that As-bury did not breach the Purchase Agreement or the Employment Agreements. After the verdict and entry of judgment, Asbury moved for attorneys’ fees, pursuant to section 16-22-308, and requested $454,421.75 in attorneys’ fees and $242.25 in costs against the Appellees jointly and severally. The Appellees responded that the disputed contracts contemplated that each party would bear its own expenses and that section 16-22-308 did not apply.

The circuit court agreed with the Appel-lees and entered an order denying As-bury’s motion. The order specifically said that section 16-22-308 did not apply because “the parties intended and anticipated that in the event there was a controversy or dispute arising out of or relating to the Agreements, or any breach thereof, then each party would bear their own costs and attorneys’ fees.” The order also included a finding that “[f]or the purposes of the Defendant’s Motion and Supplemental Motion for Attorneys’ Fees and Costs, the Defendant (Asbury) would be entitled to recover a total of $364,275.50 in attorneys’ fees against the Plaintiffs (Appellees) if Ark. Code Ann. § 16-22-[3]08 is applicable.”

We first address the issue raised by Asbury on appeal that the circuit court erred in finding that section 16-22-308 does not apply and in denying attorneys’ fees because of certain language in the contracts. This court follows the American Rule and has consistently held that a party is not entitled to attorneys’ fees except as provided by statute. 4See, e.g., Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). Arkansas Code Annotated section 16-22-308 provides:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.

Ark.Code Ann. § 16-22-308 (Repl.1999) (emphasis added).

This court has also said that a circuit court is not required to award attorneys’ fees and, because of the judge’s intimate acquaintance with the trial proceedings and the quality of the service rendered by the prevailing party’s counsel, the circuit judge has a superior perspective to determine whether to award fees. Marcum v. Wengert, 344 Ark. 153, 160, 40 S.W.3d 230, 234-35 (2001). The decision to award attorneys’ fees and the amount to award is discretionary and will be reversed only if the appellant can demonstrate that the circuit court abused its considerable discretion. Id., 40 S.W.3d at 235.

At issue in the' instant case is whether the disputed contracts provide for each party to pay its own attorneys’ fees and costs following litigation so as to render section 16-22-308 inapplicable. The language of those contracts governs this issue. Paragraph 12 of the Purchase Agreement reads in pertinent part:

Alternative Dispute Resolution. In the event of any controversy arising out of or relating to this Agreement or any breach thereof, the parties shall first use their |fidiligent and good faith efforts to resolve the dispute by exchanging relevant information and negotiating in good faith. If such dispute resolution efforts are unsuccessful after 30 days, the parties to this Agreement agree to participate in non-binding mediation.... Each party shall bear its own costs of mediation and shall share equally in the costs of the mediator. If the mediation is unsuccessful after 45 days ... the dispute shall be submitted to binding arbitration.... All arbitration fees for such arbitrators shall be divided equally between the parties....

(Emphasis added.)

Paragraph 13(j) of the Purchase Agreement discusses severability and says:

In the event that any provision of this Agreement is determined to be partially or wholly invalid, illegal or unenforceable, then such provision shall be deemed to be modified or restricted to the extent necessary to make such provision valid, binding and enforceable or if such provision cannot be modified or restricted in a manner so as to make such provision valid, binding or enforceable, then such provision shall be deemed to be excised from this Agreement and the validity, binding effect and enforceability of the remaining provisions of this Agreement shall not be affected or impaired in any manner.

Paragraph 10 of the Employment Agreements reads:

Settlement of Disputes. Except as provided in Paragraph 9(d) above, any dispute regarding the interpretation of this Agreement or relating to the Executive’s employment shall be resolved by binding arbitration.... It is further agreed that each party shall bear their respective costs and expenses (including attorney’s fees) incurred in any arbitration conducted pursuant to this Paragraph 10.

(Emphasis added.)

The Employment Agreements also have a severability clause in paragraph 13(f), which reads:

The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of | fithe fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

Asbury urges that Asbury I rendered the arbitration provisions void, invalid, and unenforceable because the contracts lacked mutuality of obligation. Because of this, Asbury argues, the circuit court erred in relying on those portions of the arbitration provisions dealing with attorneys’ fees and costs to deny its motion. The Appellees respond that the portions of paragraph 12 of the Purchase Agreement and paragraph 10 of the Employment Agreements dealing with fees and costs were not excised as a result of Asbury I. They assert instead that the severability clauses operate to save the terms calling for each party to bear its own fees and costs and that this language evidences the parties’ intent to proceed similarly with respect to litigation fees and costs.

The Appellees are correct that “where one provision in a contract, which does not constitute its main or essential feature or purpose, is void for illegality, or otherwise, but is clearly separable and sev-erable from the other parts which were relied upon,” the contract is not affected by the invalid provision, and can be enforced as though the invalid provision had not been incorporated into the contract. See, e.g., Bryant Lumber Co. v. Fourche River Lumber Co., 124 Ark. 313, 323, 187 S.W. 455, 458 (1916). As a result, valid provisions of the contract will remain unchanged if the invalid provision can be easily separated from 7them. See Kell v. Bella Vista Vill. Prop. Owners Ass’n, 258 Ark. 757, 765, 528 S.W.2d 651, 656 (1975).

It is also well settled that a contract should be construed so that all of its parts are in harmony, if that is possible. See, e.g., Tyson Foods, Inc. v. Archer, 356 Ark. 136, 144, 147 S.W.3d 681, 686 (2004). Taking the words in their ordinary and usual meaning, this court must not allow any substantive clause “to perish by construction, unless insurmountable obstacles stand in the way of any other course.” See North v. Philliber, 269 Ark. 403, 407, 602 S.W.2d 643, 645 (1980) (citing Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W.2d 611 (1929)).

As we read Appellees’ arguments, which led to the circuit court’s order, they contend that the cost- and fee-sharing portions of the arbitration provisions should remain in the contracts despite Asbury I, which voided the arbitration provisions. The Appellees’ argument is difficult for this court to accept because all of the provisions in paragraph 12 of the Purchase Agreement and paragraph 10 of the Employment Agreements were included in the context of compelled arbitration. Without the language requiring the parties to engage in arbitration and mediation, any remaining provisions in the paragraphs lack real meaning, standing alone.

But, in addition, our decision must be governed by the clear language of the contracts. Irrespective of whether the fee- and cost-sharing portions of the Purchase | ^Agreement and Employment Agreements remain in effect, it is undisputed that no provision of either contract expressly contemplates the sharing of litigation fees and costs. Without such language in the contracts, Asbury argues that the circuit court erred in finding that the parties intended for each side to pay its own attorneys’ fees and costs in the event of litigation. We agree.

In interpreting the meaning of a contract, the first rule of construction is to give to the language the meaning that the parties intended. See, e.g., Coleman v. Regions Bank, 364 Ark. 59, 65, 216 S.W.3d 569, 574 (2005). This is determined, in part, by looking to the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. It is a well-settled rule that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id.

Without question, the parties intended for each party to bear its own costs and attorneys’ fees related to arbitration, and paragraph 12 of the Purchase Agreement and paragraph 10 of the Employment Agreements clearly state that. But to extrapolate from those paragraphs an intent to follow the same procedure for litigation costs and fees, when language in the contracts does not support this, goes far beyond the plain language of the contracts and what the parties intended.

|9We note, in addition, that the contracts included language that, notwithstanding the arbitration provisions, would have permitted Asbury to seek redress in court in the event the Appellees breached the provisions related to non-solicitation and non-competition and that neither contract included cost- or fee-sharing language in those provisions. This further evidences the intent of the parties to have cost and fee sharing related only to arbitration and mediation. As the Appellees acknowledge in their brief on appeal, “[i]f the agreements had included a provision for attorneys’ fees in the event of litigation the term would have directly conflicted with the mandatory arbitration provision.” For Appellees to ask this court now to find that the parties intended to bear their own litigation-related costs and fees flies in the face of reason, particularly in light of Ap-pellees’ own admission that they intended only to enter a valid and binding contract with a mandatory arbitration clause.

In sum, given the plain language of the contract, taken as a whole, supported by the Appellees’ own statements regarding the intent of the parties at the time the contracts were signed, we hold that the circuit court erred in its expansive finding that “the parties intended and anticipated that in the event there was a controversy or dispute arising out of or relating to the Agreements, or any breach thereof, then each party would bear their own costs and attorneys’ fees.” We reverse on this point.

| inWe turn next to the issue of whether a decision regarding appropriate attorneys’ fees has been made by the circuit court. Asbury urges this court to reverse the circuit court’s order and to direct it to grant the fees referenced in its order. In doing so, Asbury relies on the circuit court’s order denying its motion for attorneys’ fees, which included a finding that “[f]or the purposes of the Defendant’s Motion and Supplemental Motion for Attorneys’ Fees and Costs, the Defendant (As-bury) would be entitled to recover a total of $364,275.50 in attorneys’ fees against the Plaintiffs (Appellees) if Ark.Code Ann. § 16 — 22—[3]08 is applicable.” Thus, As-bury concludes that the circuit court has already determined that $364,275.50 were appropriate attorneys’ fees to be awarded, if section 16-22-308 were found to apply.

Again, Arkansas Code Annotated section 16-22-308 provides that “the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.” Yet, as already stated, a circuit court is not required to award attorneys’ fees. See Marcum, 344 Ark. at 160, 40 S.W.3d at 234-35.

Resolution of this issue turns on whether the circuit court actually made an alternative finding that $364,275.50 be awarded under section 16-22-308, if the court’s order was reversed by this court. We conclude that this is not abundantly clear because of the context in which the court made its finding. The court couched its order on what attorneys’ fees and costs Asbury “would be entitled to” if the statute applied. But it then found |1Tthat the statute did not apply. Though the court unquestionably performed some analysis of the relevant factors for awarding attorneys’ fees and costs to a prevailing party, we conclude that it is ultimately unclear that the court exercised its full discretion and made an alternative ruling that would govern in the event this court held that section 16-22-308 applied.

For this reason, we reverse and remand for the circuit court to determine whether attorneys’ fees and costs should be awarded Asbury as the prevailing party under section 16-22-308 and if so, the amount of those fees and costs.

Reversed and remanded.

      . It was these provisions that formed the basis for the finding that the arbitration provisions lacked mutuality of obligation in Asbury I.


author: WAYMOND M. BROWN, Judge. D.P. MARSHALL JR., Judge,

text:
    2009 Ark. App. 181
    Christopher Boyd MATHIS, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-634.
    Court of Appeals of Arkansas.
    March 11, 2009.

      Kinslow Law Firm, by: Chris H. Kin-slow, Malvern, for appellant.
    Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
   WAYMOND M. BROWN, Judge.

11 After a bench trial, the circuit court convicted Christopher Mathis of two counts of residential burglary and two counts of theft of property. Because of these convictions, the circuit court also revoked Mathis’s probation from an earlier, unrelated conviction. Mathis does not challenge the revocation of his probation other than by challenging the convictions. The court sentenced Mathis to 121 months’ imprisonment, running all of his sentences concurrently.

Mathis’s sole argument for reversal, a sufficiency challenge, lacks merit. Navarro v. State, 371 Ark. 179, 186-87, 264 S.W.3d 530, 535-36 (2007); Ark.Code Ann. §§ 5-36-103, 5-39-201 (Supp.2007 & Repl. 2006). In so holding, we view the evidence supporting the convictions in the light most favorable to the State and affirm if substantial evidence supports the convictions. Navarro, 371 Ark. at 186, 264 S.W.3d at 535. “[Circumstantial |2evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Whether the evidence excludes every other hypothesis is left to the [fact-finder] to decide.” Ibid, at 186-87, 264 S.W.3d at 536. On appeal, however, we must determine whether the fact-finder resorted to speculation or conjecture in reaching his decision. King v. State, 100 Ark.App. 208, 213-15, 266 S.W.3d 205, 206-07 (2007) (supplemental opinion denying rehearing).

The facts of the case were these. During the first week in May of 2007, Mathis and his friend and housemate, Tyler Blackwell, went to Heath Coit’s house trying to sell Coit a gun. A few days later, on May 5, 2007, Coit discovered that two jars of coins were missing from his house. Coit testified that no one else had been to his house between Mathis’s and Blackwell’s visit and his discovery that the jars of coins were missing. During that same period of time, Coit passed a person that he thought was Mathis one morning on the highway, and Mathis was headed in the direction of Coit’s rural home. Coit said that he always kept his doors locked and had found pry marks around one of his windows. One of the stolen jars, according to Coit, was unique.

A few weeks earlier, the police had alerted the Kroger employees to be on the lookout for a tall, white male using the Coinstar machine because someone had broken into the middle school and stolen coins. Carol Sneed, an employee at Kroger, saw Blackwell using Kroger’s Coms-tar machine on May 3, 2007, to cash in a jar of coins. Sneed saw Blackwell |sthrow the empty jar in the trash can, and she and the Kroger manager recovered the jar and turned it over to the police. Carolyn Bronson, another Kroger employee, corroborated Sneed’s story and added that she saw Mathis pull up to Kroger to pick Blackwell up. Coit testified that he was ninety-percent sure that the jar recovered from Kroger was his.

Steven Keistler was the other victim. He testified that a five-gallon water jug filled with coins was stolen from his house. On the night of May 5, 2007, Keistler was working as a D.J. at Club Brittany. Keist-ler saw Mathis at the club and briefly spoke with Mathis. Keistler noticed that Mathis left for about an hour and a half before reappearing at the club. When Mathis returned to the club, he bought beer with change. When Keistler returned home around 4:00 A.M., his door had been kicked in and his jug of coins was missing. A police officer recovered a five-gallon water jug a few days later in a creek near Club Brittany. Keistler testified that Mathis had admitted to stealing coins from him before, and that is why he thought Mathis stole the coins this time. Keistler said that he did not press charges the first time because he was friends with Mathis’s parents.

We address the theft-of-property convictions first. The State had to prove that Mathis knowingly took or exercised unauthorized control over another person’s property with the purpose of depriving the owner of the property. Ark.Code Ann. § 5-36-103(a). In addition to the evidence described above, the State presented a jailhouse admission.

While Mathis was in jail shortly after his arrest, his wife and his mother visited him. The police recorded their conversation. Mathis’s mother told him that the police had found |4Coit’s coin jar in the garbage can. Mathis said “[fingerprints of mine and Tyler’s. None of Coit’s.” Then, after talking about the location of the “big” water jug, Mathis said “[t]he only way that there’s ... fingerprints on those jugs that belonged to them is if ... [the police officer] hands it up here and says, ‘Here, touch this, with your bare ... hand.’ And if he did it’s throwed out because there’s fingerprints overlapping our fingerprints. ...” Mathis further admitted that “[w]e turned in change, but it was Tyler’s change. And that’s our story and we are sticking to it.” When pressed by his mother, Mathis stated “I know it was stupid. We’re dumb.” He then added “if I get out, you know what I’m saying, it would be good. If I don’t, you know, I get what I deserve, I guess.”

Considered as a whole, the circumstantial evidence of theft was substantial. It satisfied the requirements of Arkansas Code Annotated section 5-36-103, and did not leave the fact-finder to speculation or conjecture. Gamble v. State, 351 Ark. 541, 545-47, 95 S.W.3d 755, 758-59 (2003). We therefore affirm Mathis’s theft convictions.

We next consider the burglary convictions. The State had to prove that Mathis entered a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark.Code Ann. § 5-39-201(a)(l). But “possession of recently stolen property is prima facie evidence of guilt of burglary of the party in whose possession the property is found, unless it is satisfactorily accounted for to the [fact-finder]. This is so even if there is no direct evidence of breaking or entering by the appellant.” Stout v. State, 304 Ark. 610, 617-18, 804 S.W.2d 686, 691 (1991). We have 15already held that substantial evidence exists that Mathis possessed the jars and jugs full of coins that were stolen from Coit’s and Keistler’s homes. Mathis’s possession of the recently stolen property was left unexplained. We therefore affirm Mathis’s burglary convictions as well. Stout, 304 Ark. at 617-18, 804 S.W.2d at 691; Ark.Code Ann. § 5-39-201(a)(1).

Affirmed.

ROBBINS, J., agrees.

MARSHALL, J., concurs.

D.P. MARSHALL JR., Judge,

concurring.

hi join the court’s judgment because precedent requires me to do so. But I write separately to express my concern over the rule, developed in our cases, that “possession of recently stolen property is prima facie evidence of guilt of burglary, larceny and possession of stolen property. This presumption arises even when there is no direct evidence of breaking or entering by the defendant.” Jacobs v. State, 287 Ark. 367, 369, 699 S.W.2d 400, 401 (1985). Due process requires the State to prove every essential element of every crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Entering, or remaining unlawfully in, another person’s home is an essential element of residential burglary. Ark.Code Ann. § 5-39-201(a)(l). May entry or presence be inferred beyond a reasonable doubt solely from possession ]¿of stolen property? I don’t think so. To satisfy the Due Process Clause, other facts and reasonable inferences must fill the evidentiary gap.

In some cases, this rule makes sense because of the defendant’s close proximity — both in time and place — to the scene of the crime and the presence of other circumstantial evidence tying the defendant to the crime. See, e.g., Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991); Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986); Jacobs, supra; Turner v. State, 64 Ark.App. 216, 984 S.W.2d 52 (1998); Alexander v. State, 55 Ark.App. 148, 934 S.W.2d 927 (1996); Brown v. State, 35 Ark.App. 156, 814 S.W.2d 918 (1991). The defendant’s proximity and other circumstances — plus possession — make the inference reasonable, logical, and sound.

Consider Brown. The police approached Brown around 9:30 one morning because he matched the description of a suspect. Brown abandoned the shopping cart he was pushing and fled, but was soon caught. The cart contained a variety of items, including a cable box that the police traced to a house two blocks away. When the police arrived at the house, they noticed that the door locks had been pried. The residents identified the items recovered from the shopping cart as their property. 35 Ark.App. at 158-60, 814 S.W.2d at 919-20. The burglary had taken place sometime that morning between 7:45 (when the residents left for work) and |¾10:45 (when the police arrived at the home). 35 Ark.App. at 160, 814 S.W.2d at 920. “Given appellant’s possession of the stolen property, his flight from the police, and the close proximity in time and distance linking the appellant, the stolen property, and the burglarized residence,” our court affirmed Brown’s burglary conviction. 35 Ark.App. at 161, 814 S.W.2d at 920.

But in other cases, the rule defies logic. For example, in Ward v. State, someone broke into Wonder Junior High School in West Memphis over a weekend and stole musical instruments and shop tools. On Monday morning, Ward attempted to sell three of the stolen musical instruments at a Memphis pawn shop. When the police arrived at the shop, Ward claimed that the instruments were cast-offs from his recently disbanded musical group. The police pressed him for proof of ownership, but Ward, who had gone to his car to get his identification, got in his car and left. Police eventually arrested Ward back in West Memphis, and he gave conflicting stories— later proven to be outright lies — about his presence at the pawn shop and his possession of the instruments. Ward v. State, 280 Ark. 358, 354-55, 658 S.W.2d 379, 380 (1983). Our supreme court, on a petition for review, concluded that the circumstantial evidence was substantial and affirmed Ward’s burglary and theft-of-property convictions. 280 Ark. at 356-57, 658 S.W.2d at 381.

On a writ of habeas corpus, however, the Eighth Circuit held that the evidence 14was insufficient to support Ward’s burglary conviction.

Ward’s possession of three of the ten stolen instruments, his flight from the pawn shop, his call to West Memphis police to determine whether any instruments had been reported stolen, and his lying to police about his ownership of the instruments and presence at the pawn shop were all consistent with the charge of theft and Ward’s prior trouble with the law. They were not, however, sufficient to establish the essential element of entry. In addition, Ward’s own testimony, though apparently disbelieved by the jury, failed to provide any further support in establishing the requisite elements. The evidence as a whole failed to provide even a scintilla of proof showing that Ward burglarized the school. Without that essential proof, we must conclude that the jury exceeded the bounds of legitimate inference, and engaged in speculation in finding Ward guilty on that count.

Ward v. Lockhart, 841 F.2d 844, 847-48 (8th Cir.1988).

This case is similar to Ward. There is no direct or circumstantial evidence that Mathis ever entered either Coit’s or Keist-ler’s residence. Mathis’s burglary convictions rest on these facts: he possessed the recently stolen jugs and jars of coins; he purchased beer with coins on the night that Keistler’s house was burgled; he was seen driving on a highway in the direction of Coit’s home sometime during the several-day period when the coins were stolen; and Mathis talked to his mother and his wife during jail visitation about his fingerprints being on the containers. Neither using coins to buy beer, nor traveling on a public road, nor the jail conversation supports the inference of entry into the homes beyond a reasonable doubt. Unlike in some of the other cases, Mathis was not caught in close proximity — either in time |5or place — to the crime scenes. But under precedent, the mere fact that Mathis possessed the coin jug and jars made a jury question on burglary and now constitutes substantial evidence supporting the convictions on appeal. E.g., Stout, supra; Jacobs, supra. Thus I must concur in the court’s disposition of the case.

But the better rule is the one expressed by this court when it considered the Ward case. “If the State had established appellant’s guilt solely on the basis of his possession of recently burglarized property, reversal would be mandated. However, the State may demonstrate by additional empirical evidence that a presumed fact is more likely than not to flow from the proven fact on which it is made to depend.” Ward v. State, 8 Ark.App. 209, 212, 649 S.W.2d 849, 851 (1983). This is the correct statement of the law. More than mere possession of recently stolen property is needed to convict a person of burglary. Our supreme court should reexamine the presumption arising from possession of recently stolen property. And the court should reconsider whether this rule — a rule hardened by rote repetition— always satisfies due process in these kinds of cases. I don’t think it does. Not every thief is a burglar.