Harvey Rader v. State of Texas

Rader v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-065-CV HARVEY RADER, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. 91-15037, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING An oil operator complains of a mandatory injunction to enforce two Railroad Commission orders to plug two abandoned wells. We will affirm the judgment of the trial court. BACKGROUND Harvey Rader d/b/a Rader Oil Company was found to be the operator of Well No. B-2 and Well No. 1 of the King Ranch Lease in the Kingsville Field of Kleberg County. In two separate dockets, the Railroad Commission ordered Rader to plug the two wells and assessed administrative penalties of $3000 in each docket. Tex. Nat. Res. Code Ann. §§ 81.0531, 89.001, 89.011 (West 1993) (the "Code"). Rader did not appear at the proceedings and did not seek judicial review of the Commission's orders. When Rader did not plug the wells or otherwise bring them into compliance and did not pay the penalties or post a bond, the Commission sought enforcement of its orders in the district court of Travis County. Code §§ 85.351, 89.121. The trial court issued an injunction ordering Rader to plug the wells, assessed civil penalties of $15,000 plus post-judgment interest, and ordered Rader to pay court costs and attorney's fees. Code §§ 85.352, .381; Tex. Gov't Code Ann. § 402.006 (West 1990). Rader brings this appeal complaining of a lack of due process in the Commission's manner of service, raising evidentiary issues, and arguing that the trial court was not authorized to assess civil penalties or attorney's fees and improperly granted affirmative injunctive relief. DISCUSSION DUE PROCESS In his first point of error, Rader brings a constitutional challenge to the notice provisions of the Code, alleging that only personal service of proceedings before the Commission can afford due process to an operator subject to a Commission order that may be enforced by administrative and civil penalties and mandatory injunction. See Code § 89.041 (requiring "due notice" in such proceedings); Act of May 4, 1993, 73d Leg., R.S., ch. 268, sec. 1, § 2001.051, 1993 Tex. Sess. Law Serv. 587, 742 (to be codified as Administrative Procedure Act, Tex. Gov't Code Ann. § 2001.051) (requiring "reasonable notice" of not less than ten days to parties in contested cases). (1) Despite the Commission's compliance with these statutory notice requirements, Rader complains that he only received notice of these proceedings by mail and argues that this method of service is a constitutional infirmity that renders the Commission's orders invalid and not subject to enforcement in the present cause of action. When Rader failed to file a motion for rehearing in the Commission and failed to bring suit for judicial review in district court, the Commission's orders became final. See APA §§ 2001.144-.145, .171. A final order of the Commission that is valid on its face is not subject to collateral attack in a subsequent enforcement proceeding. Jolly v. State, 856 S.W.2d 859, 861 (Tex. App.--Austin 1993, writ requested) (citing Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961, 967 (Tex. 1945); Magnolia Petroleum Co. v. New Process Prod. Co., 129 Tex. 617, 104 S.W.2d 1106, 1110 (Tex. 1937); Texas Steel Co. v. Fort Worth & D.C. Ry. Co., 120 Tex. 597, 40 S.W.2d 78, 81 (Tex. 1931); Combs v. State, 526 S.W.2d 648, 649 (Tex. Civ. App.--Austin 1975, writ ref'd n.r.e.), cert. denied, 426 U.S. 922 (1976)). In both Jolly and Combs, this Court refused to entertain collateral attacks on final orders of the Commission, even complaints about a denial of due process in Commission proceedings. Because Rader brings an impermissible collateral attack on a final order of the Commission, we overrule the first point of error. EVIDENTIARY ISSUES In his second point of error, Rader complains of evidence admitted by the trial court. He argues that the trial court improperly admitted State's exhibits one and two, which were summaries of the documents before the Commission in these two dockets, including the final orders and supporting evidence of Rader's failure to plug the wells and to deposit the administrative penalties assessed. Over Rader's objections that the exhibits were hearsay, were improperly authenticated, and were not furnished fourteen days in advance as "business records," the court properly admitted the exhibits as self-authenticating public records and reports. Tex. R. Civ. Evid. 803(8). Rader also complains of the testimony of the State's expert witness, Felix Daily, who identified the agency documents contained in exhibits one and two, and testified as to Rader's noncompliance and the irreparable harm which that noncompliance might occasion. We hold that the court properly overruled the hearsay objection to Daily's testimony and that appellant failed to preserve any objection to Daily's qualification as an expert. Tex. R. App. P. 52(a). We overrule the second point of error. Having concluded that the court properly admitted the two exhibits and properly allowed Daily to testify that the wells had not been plugged, we overrule Rader's third point of error that there is no evidence or insufficient evidence to support the trial court's judgment. PENALTIES, ATTORNEY'S FEES, AND INJUNCTION In his final three points of error Rader complains of the trial court's judgment (1) assessing additional penalties of $15,000 for his noncompliance, (2) awarding attorney's fees, and (3) issuing a mandatory injunction against him. We find all of these complaints to be without merit. In Carbide International, Ltd. v. State, 695 S.W.2d 653 (Tex. App.--Austin 1985, no writ), this Court held that section 85.381 of the Code authorizes the trial court to assess civil penalties of up to $10,000 per day for an operator's failure to comply with the Commission's order to plug an abandoned well. The 1983 amendment to the Code does not change our interpretation of that statute's applicability in this situation. See Jolly, 856 S.W.2d at 862 (upholding civil penalties under section 81.0531 for failure to plug abandoned well). We overrule the fourth point of error. Concluding that the State was entitled to attorney's fees under Texas Government Code section 402.006, we also overrule point of error five. Finally, we consider appellant's complaint that because a legal remedy exists, the court was without authority to grant injunctive relief to the State, especially affirmative injunctive relief. Rader's complaint ignores sections 85.351 and 85.352 of the Code which specifically authorize the State to seek a mandatory injunction to enforce a Commission order. See Jolly, 856 S.W.2d at 862; Combs, 526 S.W.2d at 649 (affirming injunctions ordering operators to plug abandoned wells). We overrule the sixth point of error. CONCLUSION Finding no error, we affirm the trial court's judgment. Bea Ann Smith, Justice Before Chief Justice Carroll, Justices Aboussie and B. A. Smith Affirmed Filed: November 10, 1993 Do Not Publish 1. 1 All citations in this opinion are to the current Administrative Procedure Act rather than to the former Administrative Procedure and Texas Register Act, because the recent codification did not substantively change the law. Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 47, 1993 Tex. Sess. Law Serv. 587, 988; id. sec. 1, §§ 2001.001-.902, 1993 Tex. Sess. Law Serv. at 737-54 (to be codified as Administrative Procedure Act, Tex. Gov't Code Ann. §§ 2001.01-.902) [hereinafter APA].