In re Dow Hydrocarbons and Resources, LLC and Union Carbide Corporation — Opinion by Chief Justice Brister

Petition Granted and Opinion filed October 22, 2026
In The
Fifteenth Court of Appeals
NO. 15-26-00119-CV
IN RE DOW HYDROCARBONS AND RESOURCES, LLC AND UNION
CARBIDE CORPORATION, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
459th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-26-000989
O P I N I O N
The issue in this mandamus proceeding is whether a private right of action
can be asserted by an intervenor to enforce alleged violations of the Water Code.
San Antonio Bay Estuarine Waterkeeper (“Waterkeeper”) intervened in a suit
brought by the Attorney General of Texas against Relators Dow Hydrocarbons and
Resources, 	LLC, 	and 	Union 	Carbide 	Corporation 	(“Relators”), 	that 	alleged
violations of the Code at their plastics manufacturing plant near the Texas Gulf coast.
Relators filed a Rule 91a motion to dismiss Waterkeeper’s intervention because the
Code provides no private cause of action here, which the trial court denied.

2
The issue here is not whether environmental organizations and activists on
either side can raise concerns that may influence an enforcement action. They clearly
can—by reporting violations to the Texas Commission on Environmental Quality
(“TCEQ”), collecting evidence, and providing public comment.1 But they cannot
prosecute such an action because they have not been elected, appointed, or employed
by the government official the Legislature delegated to do so. Accordingly, we
conditionally grant Relators’ petition for mandamus and instruct the trial court to
dismiss the intervention below.
BACKGROUND
Relators and Braskem America, Inc., operate the Seadrift Operations Facility
(“Seadrift”), a large industrial plant in Calhoun County.2 Seadrift produces, among
other things, polypropylene and polyethylene in the form of small plastic pellets.
Relators hold a permit issued by TCEQ authorizing discharge of wastewater from
the facility within certain limits, conditions, restrictions, and reporting requirements,
but prohibiting discharge of floating solid waste except in trace amounts.
In its enforcement petition, the Attorney General alleged on behalf of the State
that TCEQ investigators observed large numbers of plastic pellets near Seadrift’s
outflow locations, mixed in onshore debris, and floating on the surface of San
Antonio Bay. After efforts to resolve the matter administratively failed, TECQ
requested and the Attorney General filed this suit in February of 2026 for injunctive
relief, civil penalties up to $25,000 for each day of each violation, and attorneys’
fees under Chapter 26 of the Water Code,3 the Solid Waste Disposal Act,4
1 	See, e.g., T EX. WATER C ODE §§ 7.0025; 7.075; 7.110(a)–(c).
2 	Seadrift consists of nine production plants spread over 4,200 acres.
3 	See generally TEX. WATER C ODE §§ 26.001–.562.
4 	See generally TEX. HEALTH & S AFETY C ODE §§ 361.001–.992.

3
administrative rules, and the permit.5
One month later, Waterkeeper intervened in the State’s enforcement suit,
stating that it “adopts and asserts TCEQ’s claims for injunctive relief and civil
penalties” and adding its own observations of “persistent illegal pollution” that
“predates and is distinct from” the State’s claims. Days later, Relators responded
with a motion to dismiss the intervention under Rule 91a, claiming it was legally
baseless because “no private party may enforce the Texas Water Code or permits
issued thereunder.” The Travis County district court denied the motion on May 20,
2026.6 Relators filed their petition for mandamus in this Court on June 2, 2026, and
several amici joined in support shortly thereafter.7
For their part, the State and Braskem filed motions to strike Waterkeeper’s
intervention on May 1, 2026, citing Rule 60 of the rules of procedure. The trial court
denied the Rule 60 motions in June of 2026, after briefing on Relators’ Rule 91a
motion was already underway in this Court. That order is not before us, but the State
filed a letter brief in Relators’ proceeding supporting “dismissal of the intervenors
as not being proper parties in this statutory environmental enforcement litigation,”
and agreeing that “a motion to strike is not the only available option to challenge a
properly filed intervention.”
DISCUSSION
“Mandamus relief is available if the relator establishes a clear abuse of
5 	TEX. WATER C ODE § 7.105 (“On the request of the executive director or the commission,
the attorney general shall institute a suit in the name of the state for injunctive relief under Section
7.032, to recover a civil penalty, or for both injunctive relief and a civil penalty.”).
6 	Relators 91a motion was combined with a motion to strike the intervention under TEX. R.
C IV. P. 60, which the trial court denied after Relators filed their mandamus petition.
7 	The Court received amicus briefs supporting Relators from the Texas Civil Justice League,
the Texas Chemistry Council, and the Texas Aggregates & Concrete Association.

4
discretion for which there is no adequate appellate remedy.”8 We address in turn: (1)
whether an intervention can be challenged by a Rule 91a motion to dismiss (part I);
(2) whether a private party may intervene in the State’s enforcement suit (part II);
and (3) whether Relators have an adequate remedy by appeal (part III).
I. Can Intervention Be Challenged by a Rule 91a Motion to Dismiss?
The only order before us is the trial court’s denial of Relators’ Rule 91a
motion to dismiss. Waterkeeper challenges their petition on the grounds that an
intervention can be challenged only by a motion to strike under Rule 60,9 and “the
body of law pertaining to intervention, not motions to dismiss, applies to the pending
action.” We agree a motion to strike is a proper way to challenge intervention,10 but
it is not the only way.11 Rule 91a was adopted in 2013, with the express designation
that it is “in addition to, and does not supersede or affect, other procedures that
authorize dismissal.”12
The text of Rule 91a authorizes dismissal of a cause of action that has “no
basis in law.”13 If a private party files a statutory claim in the absence of any private
cause of action, then by definition that claim has no basis in law.14 The Texas
Supreme Court held that whether a private cause of action exists “is a pure issue of
8 	In re AutoZoners, LLC, 694 S.W.3d 219, 223 (Tex. 2024).
9 	TEX. R. C IV. P. 60 (“Any party may intervene by filing a pleading, subject to being stricken
out by the court for sufficient cause on the motion of any party.”).
10 	See, e.g., Farmers Grp., Inc. v. Geter, 620 S.W.3d 702, 713 (Tex. 2021).
11 	Rule 91a does not apply to two types of cases, neither of which is involved here. See TEX.
R. C IV. P. 91a.1 (excluding suits brought under the Family Code or governed by Chapter 14 of the
Texas Civil Practice and Remedies Code).
12 	See id. R. 91a.9.
13 	See id. R. 91a.1.
14 	See Ferchichi v. Whataburger Restaurants LLC, 713 S.W.3d 330, 339 (Tex. 2025) (“At
the intervention stage, an intervenor is generally classified as a plaintiff if it files an affirmative
claim for relief and is not defending a claim.”).

5
law pertaining to the merits that should … be[] raised in the trial court by traditional
motion for summary judgment or under Rule 91a.”15 We hold that a Rule 91a motion
to dismiss is an appropriate vehicle to challenge whether Waterkeeper may assert a
private cause of action by intervention under the circumstances here.
II. Does the Water Code provide a private cause of action?
For private parties like Waterkeeper to file a statutory claim, “the existence of
a private cause of action must be clearly implied in the statutory text.16 Chapter 7 of
the Water Code authorizes TCEQ and its executive director to “initiate an action
under this chapter to enforce provisions of this code … and rules adopted under those
provisions.”17 But actions by anyone else are limited to:
- 	suits by the Attorney General “[o]n the request of the executive director or
the commission”;18
- 	suits by a local government, prosecutor, or government attorney in the
place where a violation occurs;19 and
- 	suits by a “person affected” by releases of radioactive material.20
The Water Code does allow TCEQ to initiate an enforcement action based on
information it receives from a private individual,21 but does not authorize private
individuals or organizations to file such claims on their own behalf.
15 	Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 441 (Tex. 2023)
(emphasis added).
16 	See id. at 431 (citing Brown v. De La Cruz, 156 S.W.3d 560, 563 (Tex. 2004)).
17 	Tex. WATER C ODE § 7.002. This enforcement authority encompasses the provisions of the
Health and Safety Code under TCEQ’s jurisdiction. Id.
18 	Id. § 7.105(a); see also id. §§ 7.032(e), 7.066.
19 	Id. §§ 7.032(e), 7.351.
20 	Id. § 7.351(a); see also TEX. HEALTH & S AFETY C ODE § 401.003(15) (defining “person
affected” for purposes of the Radiation Control Act).
21 	Tex. WATER C ODE § 7.0025.

6
Waterkeeper responds that nothing in the Water Code expressly precludes a
private cause of action, as some other statutes do.22 But the Water Code provides for
daily civil penalties up to $25,000 for each day and each violation,23 and by “long-
standing precedent” such penalty statutes “may be asserted in a private cause of
action only if the statute clearly so provides.”24 The Water Code does not clearly so
provide on the facts here. The single instance in which it does so provide is limited
to releases of radioactive material, an exceptional case that would have been
unnecessary to specify had the Legislature intended to authorize private actions
generally.25 The Water Code’s silence in all other cases is not enough to imply a
private cause of action here.
Next, Waterkeeper seeks to distinguish its suit intervening in the State’s
enforcement action from a private suit initiating one. But both require a justiciable
interest.26 Intervention specifically requires a showing that the intervenor “could
have brought the pending action, or any part thereof, in his own name.”27 If
Waterkeeper could not bring this suit in its own name, it cannot intervene in its own
22 	See, e.g., Tex. Gen. Land Office v. SaveRGV, 2026 WL 1765503, at *1 (Tex. June 19, 2026)
(finding no private cause of action to enforce Open Beaches Amendment, which states: “This
section does not create a private right of enforcement.” (citing TEX. C ONST . art. I, § 33(d)).
23 	See TEX. WATER C ODE § 7.102.
24 	Brown v. De La Cruz, 156 S.W.3d 560, 565 (Tex. 2004) (emphasis added); see also Tex.
Med. Res., 659 S.W.3d at 431 (“[T]he existence of a private cause of action must be clearly implied
in the statutory text.”).
25 	See TEX. WATER C ODE § 7.351(a).
26 	See 425 Soledad, Ltd. v. CRVI Riverwalk Hosp., LLC, 709 S.W.3d 551, 557 (Tex. 2024)
(“A plaintiff must have a justiciable interest in the outcome of a suit to seek a judicial
determination.”); 	Nghiem 	v. 	Sajib, 	567 	S.W.3d 	718, 	721 	(Tex. 	2019) 	(same 	regarding
intervention).
27 	In re Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008) (“To constitute a justiciable
interest, the intervenor’s interest must be such that if the original action had never been
commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover
in his own name to the extent at least of a part of the relief sought in the original suit.”) (cleaned
up).

7
name either.
Waterkeeper also points out that section 7.110 of the Water Code provides:
“The attorney general may not oppose intervention by a person who has standing to
intervene as provided by Rule 60, Texas Rules of Civil Procedure.”28 But section
7.110 specifically addresses public comments and intervention before TCEQ settles
a judicial enforcement suit, either by “an agreed final judgment, consent order,
voluntary settlement agreement, or other voluntary agreement.”29 Intervention to
object to a settlement between TCEQ and an alleged violator is very different from
intervention to file charges, prosecute, seek discovery, and conduct a trial of such
actions. We cannot assume the Legislature intended to guarantee intervention
generally, rather than specifically to object to a settlement, when it did not say so.
We conclude there is no private right of enforcement for the statutes at issue
in this case. The trial court abused its discretion by denying Relators’ motion to
dismiss.
III. No Adequate Remedy
Finally, Waterkeeper argues that an order denying a Rule 91a motion to
dismiss does not justify mandamus review unless it raises “a significant issue in an
exceptional case.” It argues Relators cannot meet that standard here because they
“would have to defend against the State’s claims even if Waterkeeper was not an
Intervenor.” While that may be the case, more than that is involved here.
By statute, the State’s legislative branch has expressly placed the power to
enforce the Water Code in the executive branch offices of TCEQ and the Attorney
General; it is not the role of the judicial branch to relocate it. The separation of
powers clause provides that “no person, or collection of persons, being of one of
28 	TEX. WATER C ODE § 7.110(d) (emphasis added).
29 	Id. § 7.110(a); see also id. § 7.075.

8
these departments, shall exercise any power properly attached to either of the
others.”30 As the Texas Supreme Court wrote 22 years ago and affirmed in 2023:
The very balance of state governmental power imposed by the framers
of the Texas Constitution depends on each branch, and particularly the
judiciary, operating within its jurisdictional bounds. By implying a
private cause of action in a statute that did not provide for one, the court
of appeals exceeded those bounds.31
The Water Code allocates to TCEQ “great discretion to evaluate the violation and
determine the appropriate penalty or remedy”32; allowing private parties to intervene
on either side of this dispute would unavoidably limit that discretion.
As the Supreme Court has stated several times, “[t]he most frequent use we
have made of mandamus relief involves cases in which the very act of proceeding to
trial—regardless of the outcome—would defeat the substantive right involved.”33
That is the question here: whether a private party can proceed to trial on a private
cause of action that does not exist. The Court several times recently has held that
mandamus “is available to end a lawsuit when Congress has determined that no such
suit may be brought.”34 Texas laws restricting private claims are entitled to the same
respect as those adopted by Congress. In matters like this, we “must be careful to
stay in our lane”;35 allowing private activists on either side of environmental issues
to intervene as parties would not do so.
30 	TEX. C ONST. art. II, § 1.
31 	Brown v. De La Cruz, 156 S.W.3d 560, 565 (Tex. 2004), quoted with approval in, Tex.
Med. Res., 659 S.W.3d at 432; see Tex. Med. Res., 659 S.W.3d at 435 (“In sum, Brown governs
this case.”).
32 	BCAA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 9 (Tex. 2016).
33 	In re Academy, Ltd., 625 S.W.3d 19, 32 (Tex. 2021) (quoting In re McAllen Med. Ctr., 275
S.W.3d 458, 465 (Tex. 2008)).
34 	In re Bell Helicopter Servs. Inc., 741 S.W.3d 97, 100 (Tex. 2026) (citing In re Academy
and In re Facebook, Inc., 625 S.W.3d 80 (Tex. 2021)).
35 	Tex. Med. Res., 659 S.W.3d at 434.

9
CONCLUSION
“[T]he 	basic 	concept 	of 	democratic 	rule 	under 	a 	republican 	form 	of
government is compromised when public powers are abandoned to those who are
neither elected by the people, appointed by a public official or entity, nor employed
by the government.”36 Waterkeeper was not elected, appointed, or employed to
prosecute violations of the Water Code in a public capacity. Allowing advocacy
organizations of all stripes to do so could create a far more cumbersome, protracted,
and expensive process that could impede rather than impel enforcement. The trial
court erred by allowing that to proceed unabated here. We conditionally grant
Relators’ petition and instruct the trial court to dismiss the intervention below. Our
writ will issue only if the trial court fails to comply.
/s/ Scott A. Brister
Scott A. Brister
Chief Justice
Before Chief Justice Brister and Justices Field and Farris.
36 	Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 469 (Tex. 1997).