Untitled Texas Attorney General Opinion

THEATTO~Y GENERAL OF TEXAS

GERALD C. MhNN AUSTIN~LTEXAL~) -ON A-RN- GENE-L Mw 30, 1939 Overruled by Brief In RRC v. Clark Sample, Jr., et la Texas Sup. Ct. No. A-10958 Honorable John E. Taylor Chief Supervisor Railroad Commission Austin, Texas Dear Sir: Opinion No. o-852 Re: What remedy does'the RaiIroad Commission have against an operator who has produced 1,500 barrels-of illegal oil in violation of the Commission's order? We have your letter of May 22 requesting our oplnlon on the following questions: ~"Operator ‘A’ as the owner of an oil well capable of producing 100 barrels of oil per day is by order and schedule of the Railroad Com- mission allowed to produce 50 barrels per day or a total of 1,500 barrels per month. Instead of producing only the amount as permitted to produce, he,prodiices100 barrels per day, or a total of 3,000 barrels per month in violation of the Commission's order. Can the Commission enter an Order reducing the production from ‘A’ s' well at a subsequent date or during the subsequent month (provided such reduction Is made in accordance with our conservation rules) until the amount over;produced comes within or balances with the amount which 'A' can legally produce? "Or, in the above circumstances would the operator simply be subject to criminal prosecu- _ tion or civil penalties for the violation of the Commisslonls Order? "In the circumstances above set forth, what action could the Commission take against the oper- ator after its agents have Inadvertently approved tenders for the 011 over-produced from 'A's' well?" Our answer to your first question Is no.

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Hon. John E. Taylor, May 30, 1939, page 2 o-852

The rights and remedies involved in your question were created by statute and did not exist at common law. The law applicable to your question is stated by the Texarkana Court of Civil Appeals in~Ortlz Oil Company v. Railroad Com- mission, 62 S.W. (2d) 376, as follows: "It is believed that the proceeding, according to nature and purpose, must be classed and be so considered as one of rights and remedy created and'existing purely by statute, to enforce and to prevent the contlnuLng vlo- lations of the orders and regulations of the Railroad Com- mission of Texas promulgated pursuant to the statute. The Rallroad Commission is specially clothed by the statute with jurisdiction over oil wells and the corporatlons,,and persons drilling and operating the same. Article 6023, R.S. It Is specially clothed with the authority to estab- lish regulations and make orders, and enforce the same, in the operation of oil wells and production~of oil-. Article 6029; R.3.. (as amended by Acts 1931, 1stCalled Sess .,/c. 26, zl15 (Vernon's Ann. Clv. St. Art. 6029)). The statute expressly creates the right and duty in the Railroad Commission, dlstlnctlvely as such, and In its name as the Railroad Commission to 'institute suits * * * and sue out such writs and process as may be necessary for the enforcement of Its order, and punish for contempt or disobedience of its orders as the district court may do." Article 6024, R.S. And proceedings ln the courts by the Railroad Connnlselonis by the wording of the ~~ statute restricted to and not enlarged beyond the 'en- forcement' of its orders and regulations, and the 'vlola- tlons' thereof. It Is not clothed with authority other- wlse to Institute and maintain oroceedlnus In its name in respect to conservation of 011. or production thereof. ******

'+ * * Where a statute creates a new right or cause of action, as a nurels statutory Droceedinn where none existed at common law, and also Drovides a remedy for Its enforcement, it Is ordinarily held that such statutorv provisions are mandatory and exclusive. 1 C.J. 102, p. 989; 1 Texas Jur. 0, p. 68 9; Mingus v. Wadleg, 115 z Tex. 551, 285 S.W. 108 ; and other cases. l * *" (Emphasis added) The principle of law enunciated above was followed by the San Antonio Court of CFvll Appeals In the case of Wiseman v. State, 94 S.W. (26) 265, and the Court In Its opinion cited numerous authorities supporting Its position. As our answer to your first question is no, it follows,

Hon. John E, Taylor, May 30, 1939, page 3 O-852

as a matter of course, that our answer to your second ques- tion is that the operator would be subject to the civil penal- ties and criminal prosecution provided by statute. The con- trolling statutes in this instance provide as follows:

Article 6066a, Sec. 10 (a), Vernon's Annotated civil Statutes:

"All unlawful oil and unlawful products, regardless--of the date of production or manufacture thereof, are here- by declared to be a nuisance and shall be forfeited to the State as hereinafter provided. It shall be the duty of the Commission, its servants, anents.and emolovees, highway uatrol en sheriffs oonstables, and oeace of- -. fleers, won Ge 4lscoverv &f any unlawful 011 or unlaw- ful oroducts,9 to fil i t era1 of Texas,+ -~ lawful oil and/or unlawful nro ship, Darts in DO ssess,,n,(~~~~~~~~~~~a~~~~~~- classification thereof. Article 6036, Vernon's Annotated Civil Statutes: "In addition to being subject to any forfeiture that may be provided for by law and to any penalty that may .- be imposed by the CommissLon for contempt for the viole-'- tion of its rulea, regulations or orders, and person vioi lating any of the provisions of this Act or of Title 102, Revised Civil Statutes of Texas, 1925, as amended,'or vio- lating any rule, regulation, or order of the Commission promulgated thereunder, shall be sub'ect to a penalty of not more than One Thousand Dollars (41000) for each and every day of such violation, and for each and ev,eryact of such violation, to be recovered Ln any Court of compe- tent jurisdiction in Travis County, or in the county of the residence of the defendant, or, if there be more than one defendant, in the county of the residence of any of them, or in the county in which the violation is alleged to have occurred, such suit by direction of the Commission to be Instituted and conducted in the name of the State of Texas by the Attorney General or by the county or dls- trict attorney where such suit is brought. The recovery or payment of any such penalty shall not authorize the violation of any-.prov1sionof this Act, or Title 102, Revised Civil Statutes of Texas, 1925, as amended, or of any rule, regulation, or order of the Commission promul- gated thereunder. "Any person aiding or abetting any other Person in the violatFon of this Act, or of Title 102, Revised Civil

.-Hon. John E. Taylor, May 30, 1939, page 4 o-852

Statutes of Texas, 1925, as amended, or of any rule, regulation, or order of the Commission promulgated there- under, shall be subject to the same penaltles as are prescribed herein for violatfon thereof by'any such other person. ( Acts 1 19, p. 287; Acts 1929, 41st Leg., pq 694,ch. 313; ? 4. tots. 1931; 42nd Leg., 1st C.S.; p. 46; ch. 26, ; Acts 1934, 43rd Leg;, p. 120 ch. 64, a 2; Acts 1935, 44th Leg., ;rdl%:':h. 76, 1 12.)" Article Ullc, Vernon's Annotated Criminal Statutes: %ec. 1. Whoever shall forge~the name of any agent, officer or employee of the Railroad-Commission of Texas to a permit or tender of the Railroad Commission of Texas ralatlng to crude petroleum oil or natural gas or any product or by-product of either, or who shall knowingly use such forged instrument to induce anottierto handle or transport any crude petroleum oil or natural gas or any product or by-product of either, shall be confined in the enitentiary not less than two (2) nor more than five (5P years. "Sec. 2. Whoever shall knowingly procure or cause any agent, officer or employee of the Railroad Commls- sion of Texas to approve or issue a permit or tender of the Railroad Commission of Texas relating to crude petrol- eum oil or natural gas or any product or by-product of either, or who shall procure or cause any agent, officer or employee of the Railroad Commlstiion of Texas to issue to him a permit or tender of the Railroad Commission of Texas relating to,~crudepetroleum 011 or natural gas or any product or by-product of either with the intent to de- fraud shall be confined in the penitentiary not less than two (2) nor more than five (5) years. "Sec. 3. Whoever shall knowingly have in his posses- sion a forged tender or permit of the Railroad Commis-~ sion of Texas relating to crude petroleum 011 or natural gas or any product or by-product of either for the pur- pose of transporting, handling or the sale of said crude petroleum oil or natural gas or any by-product of either shall be guilty of a misdemeanor and upon conviction shall be fined not less than Twenty-five Dollars ($25) nor more than One Thousand Dollars ($lOOO), or by confinement, in the county jail for not less than thirty (30) days nor more than one year; or by both such fine and jail sentence. "Sec. 4. If any section, subsectlon, clause, sen-

Hon. John E. Taylor, May 30, 1939, page 5 o-852

tence or phrase of this Act is for any reason held to be unconstitutional or Invalid, such decision shall not affect the validity of the remaining portions of this Act. The Legislature hereby declares that it would have passed this Act and each section, subsec- tion, clause, sentence or phrase thereof irrespective of the fact that any one or more of."thesections, sub- sections, clauses, sentences orphrases be declared unconstitutional. (Acts 1935, 44th Leg., p. 536, ch. 225.)" Our answer to your second question Includes our an- swer to yourthird question as the statutes set out above in- clude all the remedies available to the Railroad Commission against the operator. To briefly summarize them they are as follows: 1. A suit in the name of the State to confiscate any illegally produced 011 that can be ,found. 2.' A suit for penalties as provided for In Article 6036, supra. ~' 3. Criminal prosecution under Article llllc, Vernoris Annotated Criminal Statutes. Yours very truly ATTORNEYGRRERALOFTXAS

By s/E. R. Simmons E. R. Simmons RRS:AMM:wc Assistant

APPROVED: s/Gerald C. Mann ATTORNRYGENRRALOF TRYAS APPROVED OPIXIOM COMMITTEE BY R.W.F. CRAIRMAN