Untitled Texas Attorney General Opinion

THSATTORNEYGENERZAL .; OF TEXAS

\ Ootobsr 13, 1947 1

Hone ~BaSOcinGiles, Chairman, oplaion No,, v- 405 School Lend Board Austin, Texas Re: Constitutio&ility oi Art. 921r, V;P.C., and related qusdtions aon- cqdng Oily explora* tion work $n the mf of ,Mexioo* .. Dear Sir! “-. ,‘The Board hab requested our opinion on aavswl quretiohs Loonoejming ‘geophysioal expl.orations within the ~SCate’s bt-+nd+‘ise’ iii the ‘~G4.f of Mexico, as ~followsr “l* Is Artiole 92&, V, Pm c, pr@ibit- ~lng ‘the 02 dynatiits and explosives use -in tha waters 0i the St&&a, a’pplicable tQ tha,~Qulf ’ .‘I ’ of Idexioo, and 3.f~so, la th6 lrtatuta oonstl-.. ~.. : ~Dutlonal? ~ . “2, Doss the Land Commissioner ol! ~tbe ’ school Lana .Board 4~8 ‘authority to make ~. “~; 7 ,rulea, -pertnit.ting anfl regulating geophysisal, z_ exploration work ,on State lands wl~thin t-h& ‘2,’ in oulf ~of-~yerlrol ., *&, : "34 IS the State ‘&nti,tled t0 OOmp8n- 22. aation for the rlvllega of geophyaloal ex- ploration of GuPt lands c~onduoted by those who do not ‘halve leases thereon?W Your ftrst. question obviously relates ‘to <the aonatitutionality, and applloabllity of Artiole 924; V.P.C., to geophysloal exploration involving the has or dynrmltr in the, waters of the Ouli ef Mexiaoo .’

Artiole 924, V, P. C., is as follows: *It shall be unlawful for any person to pleas in any of the waters of this State anj poison, line, dynamite) nitroglyoerin, giant powder, or other explosives or to place in

Hon. Descaa Giles, Page 2; IV- 4.05~

acloh waters any drugs, substances or things deleterious to fish life for the purpose or oatohing or attempting to oatch fish by the uaa or such substances or things, or for any other perpose whatsoever, prwided however that in event it becmes necessary to place any explosive in waters in connection with construotion work, same may be authorized by wrdtten order of the County Judge of the Coun- ty where the work is to be done. “Any one violating any provision of this Aot shall be deemed guilty of a misdemeanor and an conviction shall be fined not less than Fifty Dollars $50.00), nor more than One Hun- dred Dollars ( 1 100.00) s and shall serve a sent- ence in the county jail of not less than sixty (60) deys, nor more than ninety (90) days.” It is conorded that this Article is penal and 4a misduaeanor. In con&ruing this particular kind of rtatatr, the Texas rule is to construe the law liberally wi.ti a view to carrying out the Intent of the Lsgialatare. Art. 7,v. P. c. Ih awu eaeaa it has been held that %x&St oonidruotloo applies only to those statutes oroat- 1:ng tks hi@mr pa-1 oifenaea and not to mere mirtiean- BuaU?ro t.. State (Crlta. App. ) 197 S. II. 982, 983; iiE+ieLph 7. &ate, 9 T’ex, 521. This statute fal1.s wlth- 5.n $hat class wherein the Legislature la axerolsing its pow@* to control and proteot fish. Aocordlng to the laws of this Stata, as well a8 all or the other. States, the rule is that euoh statutee should be liberally construe4 in fwvor of their validity, and that they will not be stricken down unless the provisions therein are unreason- able and arb Wary. Tuttle v0 Wood, Texas Civil Appeals, 358. W. (26 1 1061, error refused, Another rule of Importance in construing such statutea $8 that the interpretation should not be extend- ed 80 as to cover an evil or offense not intended to be remedied or prevented. The statute should be construed in the light of the evil which the Legislature intended to prohibit or suppress when a praotical application Of the statute is made. 50 Amerioan Jurisprudence 440, 8ec- tion 416.

Meaeurlng this Artiole by these standards, let us first aseertaln the le~lslativr intent and the mis- chief ar wrong to be prevented, The 44th Legislature I

Aat8 1935, page 64.6, chapter 260, when it amended this Aot pro~idbd:

"That it dull bs unlanful for any psr- ran to place in any of the waters of this State sny b o a dynamite Q e e or other ex- plorires e a a for the purpose of oatohing or attempting to aatch riah by the use of 8u0h substancse or thinga, for any other. purposewhatsoever Q 0 0n ._ Thin language is substantially diSS@nt from that employed in the prior law which reed: ~.,~.

"The cetchingd t&&g or attempt to catch or take any fish, green turtle or terrapin in any of the salt or fresh waters, la:a;,or streams of the State by o o e :;- p o D or other explosives q o e honby prohibited ,, D en ln the prior Act the eubstanoe of the offense and the sv,il to be prohibited wes "ths catching, taking or attempt to catch or take any fish., etc., by the use or dynamibe, 0tC.f' fn the present law it is clear that the substance of evil to be prevented is the placing in aaJ or tha watera of tlp?d State dynamite etc,, for any purpose whatsoever excspt in connection with oonstruc- tion work which is lawful only when done with the per- mission of the County Judge of the County wherein the construction is being dons. Underlying both Acts, prior end present, is the fundamental intent of the Legisla- ture to conserve the fish life of the State, This is exprescled in the caption of the present Act as~2ollows: 11 making it uUbwSul to use COW tain rx~l&~~ves or other things harmful to fish in any of the waters of this State , , .I1 Again in bhe emergency clause of the Act the intent is expreeaed: " D the fact that the present law doee noi &?ovide an adequate penalty for the uee of dynamite or other harmful things used for the purpose of taking fish, and that such things are used to the detr=t of the general inter.est of the public of this State in.such natural resources 0 s sn

Hon. Bascom Gfles, Page 4, V-405,

The offense to be prevented therefore is sim- ply the placing in any of the waters of this State any of the substames enumerated7 This is manifest by the we Qf the pblwe "OP SOP may other puPpQoe whatm34vtJP‘%~ As this Article oppliae to sefsmia operations In the @US', whloh require charges OS &Jnemite to be set orr, the *eation my e~ise as to whether the Act applies to sash operrtions when the purpcse is uot that or "oatohlug or attemptinqi to catch fish by the use or suoh substaawa OP things d The effect 0s the phmaie "or for any other purpose whatsoever" then become@ very The refemnce to this phrase which we have 9 heretofel-8 W8S to ShOW the manifest purposs OS the Legislature in paBt3itIg this Aot in connection with the offense to be prohibited. We are now concerned with whether thfe @hrsse falls under the prohlbftion of a rule of law kuovn as 6 jusdem generla. That rule is where general WOP~SSollov an enumeration of ptmtieu- lar or speoiflo things enumrerated the speoifio or pap- tiou1er thiugo aeutrol. Th4 rule is ssgeeislly appli- But tilde rule is mt a%ftrarg, Pkom 39 Texas J&sprurlenoe, page 204, it is said: "It &oes not control where other por- ~tlons of the statute dfsolose a different intent aad meaning, ami ft will yield to the rules ~squiring that statutory lahg- uage be given its plain meaning, and that ev4ry p?bPt of 8 statute be given efSeotC" TQ b4 oonsistent with the policy of the Legis- letare in pmisi this Act, w4 must give full eSfect to this phroae "or Y OP any otheagppuppose whatsoeverWz To etrlke it out would be to &Seat the purpose OS the L4gis- lsture, which is to prevent the placing in any of the wrters of this Stats dynamite OP other explosives, It wtll be uoted also that the eaumerated purposes of "oatoh- ingl or attePgrt&a& to oat& fish by the we of such sub- 4hn04r ap t" are not joimd with the phmee by the Rather, the paPme fe eat apart die- junotively by the'use of the woni "oP'~ To disassocfste the phrase from the statute would fmply an attempt on the part of the Legislature to pertit the wanton OF wil- Sul killing of fish so long aa the purpose was not striet- lp to catoh or attempt to catch Sish by the use of such substances, when the very essence of the legislative in- tent is to prevent barn to the fish for any purpose what- soever e

Hon. &scorn Giles, Page 5 s V-405.

In the case of Schmidt vi State) 149 N, W, 388, the Supreme Court of Wisconsin construed exactly the same phrase in the light of a similar statute and reaohed the same conclusion. There the statute pro- hibited the setting of a gun “for the purpose of kill- ing gems, * o or for any other purposee. The ‘defend- ant argued that the gun was set to protect property and frighten boys who were likely to enter the premises for the purpose of stealing ap,pleE and therefore the statute did not cover such purpose. The Court said: “The statute forbide the setting ot a gun for the purpose of killing game 1 901‘ for any other purpose. P The intent of the Legislature was to-prevent the setting of guns generally Qlt To the same effect is the case of Knoxtenn Theatres, Inc. v. McCanless (Supreme Court of Tennes- see), 151 f3, W. (26) 164s _ Immediately after the phrase “or for any other purpose whatsoever” is a proviso exempting or classifying certain operators from the reach of the law, as follows: “Prwided however that in event it becores to plaoe any expldslvrs necessary in waters ia connection with construction work, same may be authorized by. written order of the County Judge of the County where the work Is to be done,” It may be argued that the law’ is unconstitu- tional in thet this provision in exempting construction work violates the equal protection and discrimination provisions of the Constitution. We are guided by the ruls stated in 9 T, J. 558, as follows: “While the constitutional guaranty does not forbid the olassiricatlon of subjdots and parsons for the purpose of regulatory legislation, it does require that the classifioatlon be, not arbitrary, or unreasonable, but based upon a real and substantial difference 2 having rela- tion to the subject of the particular en- a ctme nt a”

Han, Bascom Glles, Pag6 6, V-405.

See also Watts v. HOnn, Texas CIVIL Appeals, 187 l?,, W, (2d) 917, error refueed; Sportatorium Inc., v- State, Texas Civil A,peals, 115 9. W. (261) 4b3s error dismissed, and 16 0, J. g p. 92kc It im even held that in pass- ing re~ulatio&'re~arding the preservation of its fish the Btats mar make &leseifiostionr of persons in connec- tion with the regulations so long as th6 clarslficatlon is not unreasonable In relation to th6 subject and pur- pose of the regulation and not arbitrary OP unjustly discriminatory. 27 corpus Jllrias, g&,-et eq. The provision her6 does not fall within the prohibition of unjust discrlmlnat1on OP arbitrary and unreasonable legielatlonJ It is, obvious that the Legla-. lature, after it provided "or for any other purpose what- soever", reallaed that some necessary constmctlon would have to be made in the waters of the State, Without the pr@vlso the Act would prevent such work. In this reason- ings the proviso is a reasonable classiffoation and ex- emption. The objeotion that it could not b6 equally ap- plie& to waters outside a county has been cured by the extmWiOn of aOaSta1 hintg bOur&aFieE to th6 3tater~ southermost boundary in t.he G~lf.~ S, B:.338, 50th Legis- lature a It is presumed that you have extended, or will soon extend southward, the East and W6at boundaries as required br the statute: It may be contended that the provfeion wherein the County Judge is empowered to iarsu6 permAts for con- rtruatioa fs an unwarraptsd &legation of power, The Legislature may in its discration delegate to other agsn- ties or arms of t&e State, County or municipalities, the power to c&wry out the p~ovieions OS the lawI where such delegation Is reBecnable and necsssapy; 16 CL J, 3,! p. 548; 9 T. J. 493* et ssq,; Tuttle v, Wood, supra; It has tclen contended in briefs filed with this M'Pice that the present exploration work is in connection with oanstruotfonobsing neabasay in order for 011 opera- tors to know how ond where to build derricks, sink piper and drill for oil a2d other mlneraliu HcwsverI as we understand the Saats. the use& of dynhmite in exploFatfons about whPah yotu inquire ar6 on landa not now under mineral lease freon the ditate- The primary purpose of such woFk is to Qettrrlline what lands private conc6rns will seek to lease or bid upon wh6n sales are laad6. ThereSoore 9 aeismio ex- plorations by private concerns on ffulf lands not now held by them under lease cannot be rsaaonablg classified as "neceaaary in constmoticn work'" 60 as to c80!neviihln the exception contained In the etatute Wltkk respect to such unleased lands. It is unlawful tc u&e dynsmlie ln the waters covering sam9

ROIL BSSCO~ Giles, Page 7, VL405c

Obviously a different rule applies to lands which have been leased or which may be leased hereafter from the State. When the lessee in good faith decides he must determine how and where to construct a derrick, drilling rig, etc., upon such lands and shows that use of dynamite is necessary in connection with such work, the County Judge of the proper County may permit such use under the previso in Article 92L, V. ,P, C. It is commonly known that detail work must be accomplished by exploratory methods which sometimes require use of explosives before a lessee.can determine how and where to conduct actual construction and development opera- tions on the lease he has purchased. Any of such opera- tions reasonably necessary ia canneotion with good faith construction work could be p0rdttea by the County Judge of the County in which the submerged land is located. By the use of the terms "in any of the waters of the State" we believe the Legislature fully intended that the placing of dynamite or mother explosives in the waters of-the Gulf should be as unlavlful as in inland waters of the State. In the prior Act the Legislature specifically said: 1, 0 * in any of the salt or fresh waters,'lakes or streams in the State s s e1( In amending the Act, the l+&th Legislature rather than enumerate the various kinds of waters, sim- ply covered all waters by the term "in any waters of this State". The Legislature has in many other Acts recognized its property rights in the submerged lands of the Gulf of Mexico, With specific reference to fish and other aquatic animal life, the Legislature passed Article 4026, V. C, s,, which among other things, pro- vided: *All of the publia rivers, bayous, lagoons, creeks, lakes, bays and inlets in this State, and all that part of the Gulf of Mexico within the jurisdiction of this State, together with their beds and bottoms, and all of the products thereof, shall continue and remain the property of the State of Texas, except in so far as the State shall permit the use of said waters and bottoms, or per- nit the taking of the products of such bottoms or waters, and in so far as this

. Hon. B8soom Giles, Page 8, V- .405*

use shell relate to or affeot the taking and conservation of fish, oysters, shrimp, crabs, clams s turtle, terrapin, musselsp lobsters, and all other kinds and forms of marine life, e 0 -If :s %A view of this Act, it is manifest that by the use of the terms "in any of the waters of this State" the Leg- ielsture intended that the waters of the Gulf or ~exioo ever which the State has jurisdiction be included there- in. Those waters and the lands thereunder are just as moh a part of the State of Texas as the Capitol grounds, and bUV0 b&an since 1836 when the Cowress of the Repub- 110 ffrst bet the boundaries of Texas three merinr leagues irem ahore in the Gulf of Merioa. The salt water rrrarinr Itie rit?l&a those water8 era just brr much the property of fke ': aoe es fresh watrr bass or perch. The Legislature inte 3 'ed in Article 92.4 to proteot the salt water fish just BP mUoh as the fresh water fish. dur second question e concerning the euthor- iby sf the Lana Commissioner or School Land Board to Per&t aad regulate exploration work on the lends In que@tien, should be considered first with respect to laa$ect leads. It is iclear that an oil and gas lease &ld to the. highest bidder by the School Land Board, u.ndnr:the paovisfons or Articls 5421~~ as amended, cer&euith,it the ri&ht to make geophysical explora- b&oae 88 well a8 other explcmtions end development for oil and gas onthe leased property. No rurther permit 18 nece$sery ror such operations so long as they do not eonfliat with other laws, suoh aa Article 92L, Vc P, C, It is also clear that the Land Commissioner, with respect to leased landsI may make rules and regu- lotions asneerning the exploration and other operations ewQaet,ea on submerged lands, so long as they do not oon- fliot with Legislative Aote, Arti.cle 5366, V, C- SC, carried forward by reference in Article 51,21c-5, V:C,S., provides: ‘“The development of wells and the de- velopment and operation upon the areas in- cluded herein shall be done so far as pract- icable in such manner as to prevent Such pollution of the water as will destroy fish, oysters and other sea food, The Game, Fish and Oyster Commissioner shall enforce such rules aa the Commissioner of the General Land office may prescribe for that purposei"

Hon. Bsscom Gilea, Page 9, V-40g0

Therefore, as to leased land, the Commissioner of the Goneral Land Office may make rules and regulations which restrict seismic operations so as to eliminste many of the practices injurious to the marine life of the Gulf. Any rules aa to use of:dynamite and explosives must be subject to Article 924., V. P. C., which means that the lessee may use the same on the leased property only when necessary in connection with construction work, and after obtaining a permit from the-County Judge as provided there- In order to properly protect fish and marine life in iF;rations under such a permit the County Judge should grant 8-e under the condition'that the lessee will abide by the rules and regulations made by the Land Commissioner regarding use or explosives on State leases. As to unleased Gulf lands, it is our opinion that the Land Commissioner and the School Land Board have no authority to grant a permit or make rules which would permitcnd regulate geophysical explorations thereon. When a private concern enters upon public school lands, whether upland or submerged, and makes geophysical sur- veys, which revealto some extent the possibilities of the land producing oil, a valuable right has been enjoy- ed and valuable information has b.een gained, Aronow v. Bishop, lo?M&t. 317, 86 P. (2) ~644;-Ohio Oil Co. v. Sharp, 135 F. 12.) 303* The scientific information obtained by geo- physical methods is itsalr a valuable property right, . and private landowners usually receive compensation for the valuable privilege given a private concern to ob- tain.such inf’ormation. Layne La, Co, v, Superio.: Oil co., 209 IA, 1014, 26 So. (2) 206 Such geophysical rights are an incident of the miners1 atvtata, and this, in Gulf lands, has bean set apart to the Public School Fund. Their sale or dis- position is, therefore, within the exclusive province of the Legislature, and aan ‘never be given away. Arm- strong v. Walker, 73 S.,H. (2) 520, Any lease or sale of rights in those State l&as which are held in trust for the whole people, as is the bed of the sea! must be expressly authorized by the Legislature, Lormo v. Crawrord Packing Co., 142 Tax. 51, 175 S. W. (2) 410. Grayburg Oil Co, v. Giles, 143 Tex. 490, 186 S, i/c (21 680; Dolan v, i'lalker, 121 Tex. 361, 49 S. W, (2) 695; Landry v, Robison, 110 Tex. 295, 219 S. w. 817; DeMeritt v, Robison, 102 Tex= 358, 116 8. w. 7960

Han, Bascom Giles, Page 10, V-405,

The Legislature has authorized the &rant of such valuable rights with respeat to oil and gas only as an in- aident to oil ana gas exploration ana development under leases, for which the purchaser must pay the highest bid, There is no other authority under which the School Land Board or Commissioner may permit the gathering of thia valuable iarormation, This has been the consistent hold- ing of this office under this and past administrations~ Opinion No. O-1172, September 15- 1939. made the same de- termination with respeat to Texas Prison lands, and a sub- Sequent LsgisUtture passed s statute acthorizing such ex- ploration permits On Prison lands for a valuable consid- eration. Article 6203aa, V: C, S- For the same reasons9 you would not have the au- thority to WI&~ rules and regulations which would permit such exploration on unleased Gulf lands,

We realize that It would be of great advantage to the School Pund in much higher bonus payments for leases if permits could be made (vrith 6d6qUEit6 compensation) for the continuation of geophysical exploration of Gulf lands, We also realize that enforcement of our laws on this sub- &et will hereafter restrict Gulf exploration work to ~,smQs now leased or which will be leased at the next sale on November I. However, under our system of Government, we must operate in accordance wlth the law until the Leg- i,,eloture changesthe law, All of these matters are with- in the proviaae or the Legislaturec The School Lana Board toresew the need for a new law on this subject betora the 50th Legislature convened and recommended the passage or a Bill which would allow exploration permits after pay- smnt or due compensation therefore, The Legislature did at see fit to Provide such Ed Aat, and the proposal 9&ouse Bill 50) died in oomaittee. Our answer to your second question partially answers your thire inquiry, whether private concerns owe the State compensation for information already gained without a permit or lease on Gulf lands+ It is our opin- ion thet the Stats is justly due compensation in the form of damages for the reasonable value of the privilege ex- ercised by those companies which have alreaay explored the land8 without leases thereon, It is air view that the &ate, far the Public School Fund. has the aame cause of action in this regard as a private owner VJhOS6land has been explored geophyaicollg prithout permission- In this connection see Layne La: Co v Superior Oil Co ;

- . . .,

209 La. 1014, 26 So, (2) 20; Angelloz vr Humble 011 Oo., 196 x.a, 604, 199 So. 656; and Shell v. Scullg (C,C.A. ,La.) , 71 fed. (2) 772. With your approval, this orrioe will in- atituta proceedings r0r such recovery.

SUbWRY

1. Articls 924, V. P. C., prohibiting the usa 0r dynamitr in the watera 0r Texas, except ror conatruotion purposes, applies to the waters or the mar 0r Mexioo within the State’s boundaries, and is oonatltutional. The uaa or explorlvss in coahrption with geophysical sxplo~t~iona in such watrr8 0r ths Gull ie unlawful, except on lands lsasad rrom the State and then only in aacordancs with the exception In Article 924 when MO- sssary in oonneotion with construotioa work ‘on said leases. 2. Thr Land Comnleaioner has authority to make rules and regulations for explora- tion work only on leaeed lands, and then eub- j%ot to Article 9241 V. P. C. There is no authority for granting a permit or mak%u rules which would permit and rsgulats such explorations on unlearned lands.

3* Private oonoorm which have obtain- ed geophyeioal iniormatlon on odr lands without permit or lease are liable to the State in damages iOr the valve Or the prlV- ile$e so exercised. Yours vary truly APPROVBD: ATTCRNBY GENERALO;lFTEXAS

ltiiiiy& By ‘~BtbY/’ ~ Aeaiat otc : Jmo r/ Lip7 Ron a. Noa, III Aaeirtant'