concurring.
On motion for rehearing, I choose to write separately to clarify, and in my view harmonize, the majority and dissenting *48opinions. I believe that our decision is controlled, in the main, by our prior decision in Railroad Commission v. ARCO Oil & Gas Co., 876 S.W.2d 473 (Tex.App.— Austin 1994, writ denied). In ARCO, we recognized a historical anachronism that has existed in oil and gas law for over sixty years and certainly predates the existence of APTRA, now known as the Texas Administrative Procedure Act (“APA”). Tex.Gov’t Code Ann. §§ 2001.001-.902 (West 2000). The Railroad Commission, in propounding field rules, employs a hybrid procedure which blends both legislative rulemaking and contested-case procedures into one docket. In the instant cause, just as we recognized in ARCO, the Railroad Commission utilized this hybrid procedure to propound new field rules for the Panhandle Field. Accordingly, the Commission gave notice to “all affected operators” of wells in the Panhandle oil and gas fields, inviting them to participate as formally designated parties in an evi-dentiary hearing. WBD voluntarily chose not to participate in this contested-case type evidentiary hearing, but rather decided at a later date to challenge the Panhandle Field rules by the declaratory-judgment procedure provided for by section 2001.038 of the APA. See id. § 2001.038 (West 2000). The district court dismissed WBD’s lawsuit. It seems axiomatic to me that, having stated in ARCO that “field rules” promulgated by the Railroad Commission pursuant to this hybrid procedure are in fact mies, pursuant to our holding in ARCO, WBD must be permitted to challenge these Panhandle Field rules under section 2001.038, as provided for by the APA. See id. With that said, I wish to stress in this concurrence my view of just how narrow I believe this Court’s holding to be: It applies only to field rules propounded by the Railroad Commission and not to any of the other exceptions mentioned by the dissent. We express no opinion on the merits of WBD’s rule challenge. Nor do we offer an opinion on whether WBD’s challenge was timely brought.1 We simply hold that the district court erred in dismissing this cause for want of jurisdiction.2 Therefore, I concur in the majority opinion in reversing the district court’s order of dismissal and remanding this cause to the trial court for further proceedings.
. The Railroad Commission contends that WBD’s lawsuit is barred by section 2001.035 of the APA which requires that a person “must initiate a proceeding to contest a rule on the ground of noncompliance with the procedural requirements of Sections 2001.0225 through 2001.034 not later than the second anniversary of the effective date of the rule.” Tex.Gov’t Code Ann. § 2001.035(b) (West 2000). This issue is not before us, however, and must be urged in the trial court.
. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 73 (Tex.2000).