*1 knowledge the owner his auto- dangerous had a defect he
mobile when
permitted his it for daughter to use herself gross guests neg-
and her did not show
ligence.” might That be taken to mean guilty an owner can never be
gross negligence in the entrustment aof vehicle,
motor are not and we satisfied necessarily applica-
that this so. accordingly writ error is
fused, no reversible error. al.,
RAILROAD COMMISSION of Texas et Appellants, SAMPLE, Jr., al., Appellees. et
No. A-10958.
Supreme of Texas. Court 15, 1966.
June
Rehearing July 20, Denied
Houston, Heidrick, Cage Charles E. M. McGinnis, Dutton, Dallas, Granville Loch- Wilson, ridge, Kilgore, Hunter B. D. St. & Clair, Austin, appellants.
Clark, Thomas, Harris, Denius & Win- ters, Austin, Keahey, appel- H. James lees. WALKER, Justice. hearing the Railroad
After notice and Special of Texas issued its 6-52,584 May dated Order No. Sample, Jr., requiring Clark as East Fisher Lease in the of the Caddie Field, future out of Texas 58,061 barrels of oil found have been the Commission to was suit from wells on the lease. This by Sample brought against the Commission working interest in other owners enjoin the lease to set aside order operators A its enforcement. number intervened in the East Texas Field aligned with Commission. themselves judg- summary The trial court rendered perma- declaring ment the order void - enforcement, where- nently enjoining its intervenors and the as appeal this Court prosecuted direct authorized Article 1738a.1 not controverted Appellees have answer, to their set out facts summary judgment motion for All of the answer. affidavits attached true, accepted as there such facts must Nine appeal. fore, purpose for the the Caddie located on teen wells were op began appellees Fisher Lease when January same or about erating the Nos. designated are 1961. These wells 21, inclusive. and 18 Carr, 1 to Waggoner Atty. Gen., Austin, J. lease, acquired appellees At the time Sandlin, Shivers, Arthur Daniel Linward C. average of 380 producing an Jones, was Jr., Attys. Gen., Asst. S. Miller John that amount per day. had been Lynch, Tulsa, Okl., and Thomas Cecil W. ap- Shortly after daily since 1952. Cammack, of oil Holl, C. F. Alfred O. Robert lease, pro- operating the pellees began LeBlanc, Bartletsville, Okl., Minter, K. C. they appear in Vernon’s Except under ber as otherwise all stat indicated Texas Statutes. Annotated Civil num utes are referred to the article approxi- capacity duction therefrom increased to dummy of the nine wells was mately 1,000 per day. This day. per Experts 14.40 barrels concluded due, part, crease to the fact from all the com- the available data that reports for Nos. filed test Wells capabilities dummy wells bined of the nine 6, 8, 9, 15, 16, 18, 19, 2.1, 20 and herein- per since day had never exceeded 16 barrels *3 wells, marginal after referred to as the old nine January, Despite fact that 1961. the reports producing and on basis these the incapable of of the wells were top nine al- allowables, appellees wells were from reclassified had their schedule high marginal As re- lowable wells. a oil produced to Fisher Lease from the Caddie sult the than equal allowables of such more to the substantially wells in an amount trippled aggregate production It there- the assigned allowables to wells. all per from appeared capable increased from some 49 barrels thus wells day per day. to 150 After as- about barrels allowables produced the lease had tests were made signed and most of the to them October, 1962, dummy the nine wells were This was assigned wells. to the prorated ag- pro- turned to a status with an which Rule violation of Statewide gregate daily approximately allowable of vides inter alia as follows: Appellees 49 barrels. have not been ordered production daily “(A) The allowable any to make shall not any property lease or assigned virtue of the increased allowables daily upon the clude based during ^marginal nine old wells any entitled potential production of .well they time were classified as such. production of to a share in the allowable increase from such well area in the field or which acquired by shortly lease after it was actually on located well unless such appellees entirely attributable property or production, such lease and nine assigned to the increased allowables produc- in the allowable shall share total marginal Appellees old wells. drilled also area, only to the tion of the field wells, completed eight and are new which ability to actual extent such well’s designated 11-A, 17-A, as Nos. day day regardless produce new wells were inclusive. These tested thereof potential production of the rated by Sample, reported who them to the Com- schedules.” according to the Commission high marginal mission as wells with ca- pacity each to 15.79 barrels 10.40 were out above the facts set When per day. Appellees tested Well also old attention, brought Commission’s to the reported No. Commission Sample and hearing ordered marginal capacity a high well with a Special parties appeared. interested other per day. of 17.92 The allowables barrels 6-52,584 about issued Order No. eight new and Well No. Appellees at- later. have eighteen months dummy hereinafter referred to as the nine grounds, con- three tacked this order wells, accordingly were set the Commis- pro- denied tending: they were (1) that high marginal correspondingly sion at process before cedural due levels, 125 bar- aggregating approximately Commission; is an (2) the order per day. rels attempt impose reports not over- the lease was because personnel A test run produced according October, aggregate disclosed (3) findings; and potential allowable schedules eight new wells was 9.53 day, per potential authority and that has no Well No. was zero. Another test made require over- eight months later total showed that production. provisions of The relevant say they denied Appellees quoted in hearing and order are notice process Com- procedural due in that margin.2 the Clark Lease in the J. Ruddle its of East Texas wells far had in fact each Field, and which also had been shown amount needed to cause classification thereof tor 10, properly completed, schedule with a 1, 2, 3, 4, 5, 7, limits of tor tests location their deviations each such well’s the recent 15.6 to 16 27 to be that demand limitation. tests and tigation Field, and which had been shown tests. County, tests as a demand limitation. able. (i. e., “NOTICE HE ER PLE, OPPORTUNITY GREGG ACCRUED TO FIELD, 1) 2) “WHEREAS, 3) “WHEREAS, 4) [Wells Nos. proratable 8, vertical [*] [*****] amount needed to cause classification 11-A, 17-A, 22, in excess of the thereof thereof *4 good proratable were Five Nine Four 9, Nine made made made MAKE 15.5 to 17.5 barrels as SHOULD LEASE, production JR., to be in the East Texas Field straight as resulted production for the East Texas n shown at or TEXAS cause to (5) (9) wells; (9) by barrels slant hole (4) wells; namely, follows: OE HEARING such well’s [*] Sample, Jr., projection COUNTY, to have Field, to be TO SHOW CAUSE well and had been FOR HIS CADDIE or on UP OVERPRODUCTION high marginal or on behalf of the or on behalf of the 16, 18, 19, wells; wells to well and From time listed] beyond J. RUDDLE SURVEY holes at The Commission straight NOT proper prorated capability on recent per day) behalf [*] review TO high marginal wells tested, productive capacity 23, 24, 25, investigation namely, namely, capability capability subject discovery BE subject be deviated shown EAST surface locations holes CLARK SAM- 20 and 21 Survey, Caddie per day) their apparent conditions and 14 [*] GIVING exceeded REQUIRED when East Texas wells and on time Wells Wells Wells within the by by operator exceeded TEXAS of: of such surface market 26 and market Texas; FISH- in fact Fisher opera- during opera- sworn sworn sworn inves- Gregg allow- WHY (i. e., when [*] were Nos. Nos. Nos. lim- and AN has on as To the mission that vember, 000 barrels an appear proximate eration of will hold a monthly production, producing period, about but it is not production proceeded thereafter tion described requiring made “SPECIAL tions, monthly evidence overproduction, termined Jr., for consideration top the Caddie study such lease 100,000 excessive the od; gation thereof. review cluded that there existed the record OVERPRODUCTION TEXAS TO THE DIE FISHER LEASE DERPRODUCTION TEXAS “WHEREAS, “PURSUANT To said “A tabulation of “THEREFORE, NOTICE IS GIVEN “WHEREAS, “WHEREAS, such estimates opportunity January, 1961, of 3420 barrels be Caddie evidence and on the Railroad Commission to be made January 1, 1961, took over the and orders as of conditions with consideration to be required and show cause public CLARK as presented that a volume * * * rate such rate from such rate established of such FIELD, Hearing Fisher overproduction, Fisher Commission to make will enter such of oil should be placed after the slant period experienced and all ORDER BE MADE be considered Caddie The Commission subject to Clark excess to make of the interested SAMPLE, JR., oil, Lease. to after consideration rate . Lease may Hearing. appears may justify.” on at GREGG and estimated per Commission, after a to raise the monthly Sample, Jr., on or in its tests were October, 1962, peri- that excessive and that such . interested the Clark production Fisher to make return to the ACCRUED * * * be adduced month to . : why Sample, Jr., (07884) EAST excess possibility up the above- * * Hearing, and it was REQUIRING UP judgment rules, Hearing to the prior hole investi- as a allowables, COUNTY, considered he should lease any part of Texas excess made the BY caused given monthly Sample, changes parties, from a to regula- parties limita- to the in No- during to CAD- Com- over- FOR 100,- mat- UN- con- rate give File into top ap- op- de- be to a guilt prior proving the burden of innocence. mission made its their support hearing required they point In of this to the and them to assume contention give operator; such ter should be set for Clark became appear product opportunity and an increased was the required testing procedures why allowable should not be incorrect and show cause he assignments thereon; up any overproduction based that the over- to make shown * * *; made on such lease is determined to be the differ- have been and ence between test volumes certain wells, and the for such allowable volumes “WHEREAS, notice, the- After due wells that were set of in- of Texas held Railroad Commission hearing testing reports; correct give December Sample, Jr., opportunity “WHEREAS, to show Clark The Commission is of why required he should not be cause the Sample, Jr., finds up overproduction his accrued for Fisher Lease Caddie Survey, Lease, J. Ruddle following Caddie Fisher each allowable had the test and Texas; Gregg County, Field, history East Texas records as shown as Exhibit ‘A’. “WHEREAS, From evidence adduced overproduc- hearing, appeared said “1, 7, 12, 1, 2, 4, 5, Wells Nos. lease; exist on such that such did top reported 14 were tested and .and as least involved at top prorated allowable wells were produced in ex- showing no allowable wells operator was cess of that to which the reporting. incorrect entitled; such excess *5 19, 8, 16, 18, 6, 15, 9, “2. Nos. Wells overproduction com- made wells was assigned 20 and 21 were tested and had pleted to be on on the lease and shown proration allowables on the Commission producing from records to be Commission day proratable until 30 schedule as wells reservoir; that such Field the East Texas wells, marginal tests were taken on volume, such greater overproduction in could be and filed the at various with 120,737 probably much barrels of as as subsequent January 1, 1961, times to operator’s oil, by own cal- as the shown acquiring marginal exempt purpose the of 70) (Sample Exhibit No. than culations October, status. wells on retest Such Commis- established the the volume opera- 1962, without of workover benefit sion; overproduction if not that capabilities producing in ex- tions showed produc- gives greater share of made qualifica- marginal cess of classification opera- than the tion from the reservoir pro- tion and were therefore returned to share, of all the detriment fair to tor’s group rated dencing evi- including status. This wells field, interests other producing top characteristics parties hear- who at the those intervened marginal both before and after the overpro- wells ing parties; that as interested questionable period status are at least up will have restored duction when made gain reporting to including of incorrect parties, the to the interested advantage, due dif- but to the allowable Caddie Fisher holders the interest Lease, ques- conclusively proving ficulty in the opportunity produce fair his condition, could tionable production for the of the allowed share any production from such not declare field; and question during period in to be wells “WHEREAS, adduced at From evidence overproduction. hearing, apparent to the Com- it is said 24, 1961, 11-A, 17-A, 22, January 1, 23, Nos. “3. Wells that after mission completed operator, as new de- 26 and 27 were date became Clark operations subsequent January 1, velopment on assigned marginal high conducted were Lease were the Caddie Fisher day marginal production from were taken after 30 tests manner in' such relatively wells, the Com- on such and filed with the lease was raised establishing per purpose month to a mission for oil static 3420 barrels of marginal exempt 10,474 Such initial status. ^approximately rate October, 1962, October, month; per showed wells on retest very capability, thorough or no small made a when the Commission overproduction thereby being subject investigation included lease which as the difference between status determined and well deviation individual well proration capability) schedule (productive allowable set the lease tests capability approximate of each such and the actual of al- level turned to the existing time well. at lowed 21.07, Article Section its recital Section hearing with the notice of Code; 666-7, Article V.A.T.S. Insurance a volume “it was determined that is also fre- type This notice oil should V.A.P.C. excess of temporary injunction, quently issued in overproduction.” The notice considered support, and other temporary alimony, be held hearing child that a would also states Sample, specified is not proceedings where use opportunity give “to why he In all of these either statute or rule.- Jr., appear and show cause generally recognized that up the situations required to make should not be nothing do any part notice has the form of the above-described persuasion at hear- with the burden of Appellees argue the notice thereof.” cause they ing. fact that a show plus were The mere in this form the fact not, instance does first notice was used in this upon present their evidence called opinion, in our tend to establish show that proof They placed no made burden prejudged had the case. upon appellees. procedure at the objection followed they hearing, and did claim that were not recital above quoted The other process being denied due until after appellees called fact evidence was closed. their to introduce Hearing Examiner per- more may first be somewhat cause The use of show so-called suasive, are many types these circumstances practice notice is a familiar ref- probably had proceedings conclusive. The recital of court and administrative preliminary hearings. erence to a determination Rules 308-A and Texas See 21.21, Commission, Procedure; and there employees Rules of Civil Article a vidual timony lease able named wells is the actual parties owning Lease is tion of the stated volume of oil. being in bility volume has been opinion 1961, ginal ratable well Commission that reporting mined 11-A 17-A “4. [10] “WHEREAS, “WHEREAS, study October, 58,061 taken on such set exempt the Clark to be for the Well No. 10 was subject wells the Commission concluded hdduced into the record and from that of its own records for the difference between the allow- virtue of incorrect overproduced on the so that each of the hereafter barrels capability proration until a at 7,261 6,138 6,080 7,697 the correlative *6 subsequent status. purpose charged The Commission is of the an From Sample, proration showed very well overproduction interest produced oil; Such well on retest of the well. schedule of in a total volume low day marginal evidence and tes- and filed with the with producing capa- [25] [24] [26] [23] carried on the that acquiring Caddie rate, schedule and in the East rights overproduc- January 1, such total thereby Fisher deter- 3,381 6,033 5,600 8,728 7,143 of all mar- indi- pro- said test By Texas Field have been Lease those correlative its conservation manner rights will be restricted tive be balancing those terest to be underproduction. has the for a overproduction shall be forded that the Clark gard production; overproduction tion County, rate, “Each “THEREFORE, remiss should it the Railroad Commission that the duty from the lease until rights; and runs to market for the period of time in the future adversely (07884), to which by Texas, that authority, produced proratable restriction of out until the mentioned volume that that protection only 58,061 promulgate parties Sample, Jr., be and is of the determined East Texas is balanced protect affected they regulation balanced out relief that will rights at IT IS ORDERED shall be law well on 50% 50% it shall be are entitled fail responsibility, and adversely affected the actual of those such time as the from these wells and restore parties and administer of the allowed Caddie to order with due subject Field, made out.” such field. correlative by of Texas oil found operated correla- is af- produc- allowed protect Fisher under- Gregg up would lease, over- lease such require places might is no rule which burden of whether the proof upon overproduction party proceeds operator an to make who first hearing. expressly an An ex- was reserved. administrative sug- amination of the Commission’s order Appellees is no over- insist there gests us, moreover, appellees They point here. out that required per-' not to assume the burden of dummy found that the nine It suasion. is introduced statement overproduction deter- “subject to wells were the Commission had concluded “there the allow- mined as the difference between possibility existed a that such lease was proration set on the schedule able overproduced in excess capability the actual of such well.” oil, and that such matter should set for be 4, 5, 1, 2, 3, also found that Wells Nos. give opportu- to as referred 13 and hereinafter nity appear why he and show cause wells, “no prorated showed the nine old required up any should not be to make report- testing and evidence of incorrect overproduction shown to have been made any ing,” declare and that it “could not on such lease.” The order further recites ** nine old production from [the that “from hear- evidence adduced at said period ques- marginal] during ing, appeared it did Appellees ar- overproduction.” exist on such lease.” Even more convinc- predicated gue, therefore, that the order ing is the stated conclusion of the Commis- nine on a difficulty sion in con- that “due to the upon over- dummy not based wells and is clusively proving questionable condi- the lease. production by any on other well tion,” any production declare could not produced dummy wells Since none of the marginal from the old be over- wells to more its schedule allowable than production. appeal This is an from a sum- ag- produced lease has not more than mary judgment, and it our the wells gregate schedule present record not show as a does thereon, not ordered appellees say they were pre- matter of law that to make have been found to judged placed the case or the burden of but were assessed of allowables excess proof appellees. upon ground Their first reports. do We of attack order af- Commission’s agree. upholding fords no basis then summary judgment. clear, place In the first least, present record at In contending that the order is an effort *7 provisions overproduced. the Under was impose penalty to a en 52, appellees were Rule of Statewide ports, bring appellees seek to themselves assigned to produce the allowables titled to Harrington Railroad within the rule of of only to the extent dummy the wells Commission, Tex.Sup., 375 S.W.2d produce to ability such wells the actual and It was held there that sanctions the allowables portion The of such the same. penalties provided by Legis- expressly the incapable of dummy which the wells were the lature for violations of conservation by other wells producing produced was laws, rules, orders regulations or the and more Appellees produced the lease. thus thereunder, promulgated the allowable than share of the field their has are exclusive and that the Commission allowable determined power impose or additional no to different ap their governing schedules and the rules devising. penalties of its own sanctions or overproduction. plication. This is pointed opinion At the conclusion of the we there production where out that to restrict to us that such It also seems clear constitute
had been no would of the question overproduction is the basis order penalty, but the an unauthorized respect now A reading practice under attack. of numbered this administrative the. early Paragraphs law, 3 and shows that when the is that the authorized and dummy is un- opinion Attorney that wells stated General “subject “charged were to” and with” over- sound. production, did not mean that over- 7 Article 6049c author Section from The such wells. came “dis requires izes and the Commission ways order recites several times in different apportion or tribute, prorate, or otherwise overproduced, that the but it lease was does among allocate, the allowable purport specify
not or the well wells producers on a reasonable the various produced apparent, It is excess. authority in grant basis.” This broad however, that was of the Commission ad power make reasonable cludes the opinion from that the came or justments well allowable prorated the nine old The statement wells. overproduc compensate prior Paragraph in numbered these 1 that wells done, inas that is tion therefrom. When showed no incorrect impose case, does not the Commission obviously reporting refers to the test- merely levy a sanction ing capacities reporting their production to the amount restricts actual This is that declinations. not a produce operator is authorized therefrom did not constitute applicable with the overproduction. accordance Paragraph In numbered pro rights are thus his wells. Correlative however, that the Commission stated tected, deprived is operator any production could not declare from the On legally entitled. marginal nothing to which he is overproduction. old wells us, we now before the basis of facts Paragraphs Since numbered 3 and show did exceed hold not dummy capable Sample requiring allowables, statutory authority producing their own overproduc up make must have concluded that excess oil tion from the lease. nine old prorated appears wells. It thus The judgment of the district court order simply requires appellees to make reversed, to that and the cause is remanded overproduction, and the case is not proceedings. court for further ruled Harrington. DISSENTING OPINION Turning appellees’ ground now to third attack, in 1939 General ex- SMITH, Justice. pressed opinion power no require had respectfully I Commis- dissent. overproduction. opinion This attack sion the order under contends was based generally upon premise merely re- penalty; is not the order the conservation laws had more created new stricts rights provided remedies for their The Commission en- than he entitled to. forcement, and that statutory says “big between remedies there is a distinction are exclusive. Com- penalty.” has been re- restriction and *8 by nounced present General, position the case “under mission’s this that obligations has not statutory been followed the Commis- the duties and * * * sion for years. During least IS this guidelines set that down period many operators required must been [Supreme have that Court] to make overproduction; but presently prorate prevent only not oil to waste operators there are making prorate produc- a total must also and restrict 390,000 rights over overproduction protect barrels of tion of oil to the correlative from 41 leases. operators We concluded of all field.” have that an oil 18,1965,plaintiffs, Sample Sample al., Clark appellees, et filed On The Clark June al., here, 3, 1965, appellees filed a motion for against the Rail- et suit on June 166-A, summary pursuant to Rule judgment its members. of Texas and road Commission Plain- 17, 1963, filed its Texas Rules of Civil Procedure.
On June 652,484, tiffs-appellees to enter moved the Court alleging No. answer that Order involved) summary de- judgment setting aside and May 24, (the order dated al., May claring dated Sample et invalid the order penalty against was not a 58,061 1965, “assessing penalty adjust attempt correlative but an .was plaintiffs’ Fisher against The of oil Caddie Field. rights in the East Texas Lease.” alleged that: trial, 19, 1965, granted July On court “ * * * 1,1961, January the date after summary judgment motion for and en- develop- operator, Sample Clark became order judgment decreeing tered its that operations on the ment and permanently enjoined was void and conducted Fisher Lease were Caddie Commission, employees its members and production from the such manner that enforcing said order. relatively static lease was raised from a month to a rate per 3420 barrels of oil summary judgment was The motion for 10,474 approximately oil properly or- sustained. The Commission’s month; October, per when that der on its face shows that thorough in- Commission made a 58,061 charged the barrels of oil back included vestigation of the lease which Sample’s against Caddie Fisher Lease and well status individual well deviation overproduction, because was the lease (productive capability) tests reports.” recita- “filing incorrect test al- approximate to the level returned to the tions contained in the order lead existing time at the lowed Sample, conclusion Caddie that “the Clark operator; that Sample Clark became Fisher in a total Lease product such increased was oil; such volume of al- procedures and testing incorrect produced from said total volume has been thereon; assignments lowable based testing and virtue incorrect ” ** overproduction was determined reporting. [Emphasis added.] tests volumes the difference between the recites that order wells, allowable vol- and the for certain findings made test and allowable relative to set umes such wells that were history of each of the 27 wells on reports, the * * of incorrect Caddie Then the order Fisher Lease. [Emphasis added.] charged cites was 11-A, to nine of those wells: wells July 7 and On June June 17-A, 22, 23, 24, 25, 26 and 27. Company, Petroleum the Amerada Sun Oil overproduc- charged was not with Refining Company, Oil and the Humble wells, but ac- of these individual Hearing,” Com- Company cording Service Oil to the “Notice of Cities predetermined Each pany petitions filed in intervention. Commission had overpro- being times alleged at all material Caddie Fisher Lease was intervenor hearing, number of duced. At the various interests owned preliminary conclusively dis- covering gas leases lands Field; op- proved. each was There was no East Texas Com- field the lease as a whole in excess of the leases in said erator of hand, party mission-set On the other interested and affected allowable. was an undisputed be af- and “will evidence shows the order under attack underproduced re- Caddie Fisher by any of this Court Lease was fected orders *9 2,322 during period by the relevant Commission Order.” lating to said Railroad
347
penalty as-
is a
“[rjather
set for the
“order]
below the allowables
[the
Appellees [Sample et
Sample’s
against
sessed
al.]
by the Commission.
the lease
says were
filing
for
what the Commission
“during the
undisputed that
testimony is
penalty is ar-
reports. The
cause
false test
in this show
period involved
entire
*
**
bitrarily
by applying, the
underproduced this
set
hearing,
we
17-A,
10, 11-A,
Wells
levels which
2,322
allowables
barrels below the
October,
23,24, 25,
had in
The evidence
by the
set
Commission.”
post facto
retroactively;
i. e.
an ex
for the statement
clearly
the basis
affords
Com-
revision of the allowables which the
summary judgment
Sample’s
in
motion for
previously
for these wells
mission had
set
is,
Plaintiffs’
that “the fact
stated
1961—Oc-
during
period January,
petition,
Plaintiffs’
original
sworn
'
tober,
1962.”
not
Caddie Fisher Lease was
period
during
January
1961—No-
Obviously,
the Commission has assessed
1, 1962, according
the Commis-
vember
illegal
for
penalty against Sample et al.
The Commis-
allowable schedule.
sion’s
production.
In other
the Commis-
words
schedules,
sion,
authorized
by its allowable
Sample
committed
sion has found that
et al.
drop
this
produce every
Plaintiff
when,
fact,
illegal act,
they
did not.
an
oil.”
its
(The Commission now claims that
ac-
in its order
the Commission found
which
substantial
tion should be tested
sense that
overproduction in the
was not
to deal with
evidence rule. The Court fails
production in
of allow-
there was
excess
contention,
with
this
but it will be dealt
“Overproduction”
as used
ables.
in this
clear
later
dissent.)
com-
given
order is not
this
Commission’s
Sample
penalized not
for
et al. were
de-
monly accepted meaning. The order
allowables,
producing in excess of scheduled
“overproduction” as follows:
fines
obtaining
for
increased
through
reports
tests and
Com-
“
* *
Overproduction is determined
mission considers to be false. While
test
to be the difference
between
empowered
Commission is not
to devise
wells,
volumes for certain
allow-
penalties
or for
conduct
own
unlawful
able
that were
volumes
such wells
regulations,
it is
rules and
violation of its
testing
filing
set
incorrect
powerless
operator
when it finds that
reports.”
reports. This Court
has been
pointed
Harrington
Railroad Com-
out
Thus,
it is seen that
mission, Tex.Sup.Ct.,
375 S.W.2d
using
guideline
artificial definition as a
in a
procedure
(1964),
the correct
.that
actually
finding in its
made no
order
found
such as the Commission
situation
wells,
the nine
as over-
here was
existed,
I re-
ordinarily
understood.
bring a
request
General
spectfully
cannot
submit
this Court
penalty
Article
Vernon’s
suit under
successfully demonstrate that the Commis-
Texas Civil Statutes.
Annotated
did,
fact,
sion
these
determine whether
-
power
simply has no
less than their
The Commission
nine wells
more or
make-up
require
produc-
to shut in wells or
only finding
is that
allowables.
illegal production was
by filing “in-
tion —whether such
obtained increased allowables
(as in
through trespassing wells
testing reports”
correct
the Commis-
obtained
“filing
through
“overproduc-
Harrington case) or
sion
this as
chose
label
produc-
reports”
as to
Clearly,
order
incorrect
tion.”
wells,
charged in this
upon any
capacity of
as is
tive
order.
It is not based
Harrington that
overproduction, either on a
case. We said
true
authority
penalize an
basis.
State’s
lease basis or an
well
individual
by the
set out
is limited to the sanctions
agree
Sample’s argument
I
that:
with
*10
Assuming arguendo
Legislature.
Harrington
in
dis-
we have
This Court
case,
“overproduction”
I still
cussed the Articles
which
maintain
Statutes
expressly
“overproduction”
production in
provide
sanctions
means
penalties
imposed
may be
for viola-
excess of the Commission-set allowable.
which
rules, Overproduction
ting
of oil in excess of allowable
the conservation laws or
1112b,
is
felony
Section
regulations and
of the Commission
under Article
orders
7a,1
promulgated
discussed
Vernon’s Annotated Penal Code. Sec-
thereunder. We
any
provides
tion 9 of
applicable provisions Articles
Article 1112b
person
1111c,
provisions
who shall
6066a and Article
Vernon’s
violate
Sec.
“ * * *
upon
Section 7a
conviction
Code,
Annotated Penal
held:
shall
felony,
be
guilty
deemed
of a
penalties thus
“The sanctions and
punished by
conviction shall be
confine-
provided
Legislature are
expressly
by the
* *
Legislature
ment
I think the
exclusive,
no
has
and the Commission
penal
realized
be
that these
statutes would
power
impose
additional
different or
persons from
effectively
calculated to
deter
penalties
sanctions or
of its own devis-
produce
properties
attempting
from oil
ing.
power
necessarily denied
The
under their
in
of the
control oil
excess
Ann.
the Commission Art. Vernon’s
produced.
lawfully
amount
allowed to be
Code,
provides that
‘no
Penal
which
purpose
penal
is not
of these
statutes
or
person
punished
any act
shall be
offender,
<
only
punish
deter
omission,
same is made
unless the
committing
others from
offenses. On
like
penal offense,
penalty
and a
affixed
hand,
considera-
the other
the order under
State’,
thereto
the written law of this
tion
of the
recites that the “Commission is
design
provision implements
which
rights of all
that the correlative
in Article 1
of the Penal Code declared
parties
East
owning
an interest
every
language
plain
to be ‘to define in
adversely affected
Texas Field have been
State, and
against
offense
of this
the laws
* * * ”,
no
yet,
makes
punish-
proper
affix to each offense its
rights of
effort to
the correlative
determine
”ment.’
find that
all
of the owners
the field. We
intervened.
major
companies
four
oil
have
Harrington
supports
I think
case
May
disposition
I
is the Railroad
ask what
Sample’s position
Harrington
here.
In the
oil? Will
going
to make of this
case this
“no
Court said there was
law
this
in another
adjudicated
matter be
overproduction.”
my
contention
correlative
adjustment
suit or can the
that there
is no evidence
rights
only
four
though
made as
case,
based on a
this
and the order is not
major
companies
been affected?
oil
have
overproduction.
finding of
It is based on a
I
un-
questions
point
these
raise
reports.
position
tenable
of the Commission
or
justified
Whether the
the order
facts
intervenors.
not,
statutory power
the Commission has no
clearly
Assuming overproduction,
to assess what
is an unauthorized
the Commis-
penalties provid-
penalty.
power
require make-up
In
sion
addition to
has no
statute,
past
produc-
ed
has assessed
out of future
applying
cents amounts
which
dollars and
tion. There is no
to oil
statute
$174,000,
comparable
the value of
Sec-
to Article
applies
gas.
oil.
only
any person,
any
amount
“It
shall be unlawful
well
oil
excess of
owning,
leasing,
Act,
produced per day
as defined
allowed to be
any
controlling any
property
operating,
producing,
oil
under
or
such oil
or
well
any
property or oil
within this State
order or orders of the Governmental
oil
well
any
promulgated
produce
Agency,
or cause to be
theretofore
any
property
day
oil
at the time.”
force
*11
statutory
7 of
has
Attorney General relies on
holds that
Commission
the
Section
the
authority.
authority
penalties
I do
alterna-
statutory
Article 6049c for
assess
as an
to
General,
any
by
Attorney
or in
then
provision in
7
tive to a
the
not find
Section
suit
102,
pro-
any
require
Oil and
the
the same
other statute under Title
Court should
Gas,
safeguard
required of
the
the
cedural
as
which authorizes
adjust
brought
Attorney
or restrict
future oil
a
suit
General
6036,
past overproduction.
supra.
make
Article
under Article
The Commis-
6008,
matter
(Penalty)
Section 14 limits
sion’s
Order is invalid as a
make-up-for-overproduction
of
power
law in that it is the result of an adminis-
to gas.
Plaintiff,
I
prior
contend
hearing
which the
had no
trative
statutory
presumed
put under
authority
Sample,
guilty and
was
enter the involved
why he
order.
I
the
of
cause
“show[ing]
concede
burden
the Commission is
empowered
above
required
should
make
the
make
not be
initial
allocations
”
* *
producers
among
overproduction.
prorate
and to
described
prevent
procedure
due
waste,
case offends
followed
this
the Commission is
wholly
process.
had
power
without
adjudicate
If
the
General
charges
of
and,
sought
$174,000,
violations
effect,
of
the value
sum
reallocate to
compensate
penalties in a
overproduction.
oil,
as
6036,
District
Article
Court action under
This leads me to consider the contention
supra,
proceedings were instituted
or if
of the Commission that we have a
Code,
case
under
of the Penal
proper
Article
where there
punishment
is not involved
had
burden of
the State
have
would
penalty for crime
concept
and that the
of
proof
been
Sample would have
burden
proof,
of
argued by Sample
as
al.
et
presumed
any wrongdoing until
innocent of
has
application
no
whatsoever to Railroad
a
proven
preponderance of the
guilty by a
Commission hearing where the test of
proceedings under Article
evidence in
validity is whether
supported
the order is
supra,
presumed
would have been
by substantial evidence. The Commission
proven
beyond
reason-
guilty
nocent until
a
in its answer to
summary
the motion for
a
doubt,
proceedings
under
able
if
judgment says
“[hjere,
the Railroad
proper
Sample’s motion
penal code.
Commission simply reviewed
factual
certain
effect
clearly
summary judgment
states
data relating
history, allow-
proof at
of
the burden of
shifting
a
of
able assignments,
capability
and well
test
motion contains
administrative level. The
reports
by
filed
compared
as
argument:
following
unanswerable
to those
conducted
the Commission and
by a
process
be denied
“That due
can
called
hearing
parties,
all interested
proof at
shifting of the burden
giving them an opportunity
any
present
emphasized
administrative level was
bearing
evidence
subject. At the
.the
Supreme Court
States
United
hearing the basic
undisputed,
facts were
S.Ct.
Speiser Randall, 357 U.S.
78
v.
these facts were
prove
sufficient to
that the
these
(1958) in
1332
L.Ed.2d 1460]
[2
by 58,061
words:
present order,
barrels.
In issuing the
“
plain
litigation
is
present-
considered all
it
evidence
‘In
kinds
all
may
ed.
proof
lies
validity
Since
must be
the burden
its action
that where
Cities
tested
rule,
outcome.
substantial
be
decisive
Dunlap,
manner
308 U.S.
which it
initiated the
Service
Co. v.
Oil
196;
immaterial.” The
United States
taken
60
84 L.Ed.
has
S.Ct.
Co.,
U.S.
position
York,
question
H.R.
that no
v.
N.H. &
constitutional
New
247;
Samp-
agree
posi-
involved.
I
2 L.Ed.2d
cannot
with the
78 S.Ct.
754, 758,
Cir.,
Channell,
110 F.2d
tion of
son
Commission.
If
the Court
litiga-
always in
present
position
finally
maintains its
There
351 statutory action, purely produced illegal viola- cause of as a 1500 barrels of proceeding The where none existed at common tion of Commission’s order?” law, its en- provides remedy also Attorney General the Com- advised forcement, ordinarily held that could not “an reduc- mission enter order mandatory and statutory ing provisions are well at a ‘A’s’ Com- Ortiz subsequent during subsequent exclusive.” Oil Co. v. Railroad date or * * * mission, (Tex.Civ.App. 379 month 62 S.W.2d until the amount over- Mingus Wadley, hist.). v. with the no wr. See comes within balances (1926). 1084 produce.” which ‘A’ Tex. S.W. legally can amount Attorney quoted length General summary judgment rendered Company from the case of Ortiz Oil trial court should be affirmed. Commission, Tex.Civ.App., Railroad 376 (1933), opinion S.W.2d no wr. hist. There was The Court’s other admits of no question second dealt with in the construction than the Commission question summary That another will General. trial be entitled to a *13 was: judgment. “Or the above circumstances would This holding Court operator simply law, subject be to criminal matter now based the “facts prosecution penalties us,” or civil viola- before did not tion of the The statutory authority requiring Commission’s Order.” exceed its Attorney answered, part: Sample General “As
our your question no, answer to first from the lease. follows, course, as a that our matter will be convicted of offense of your question answer to that the reports second lawful of the without a trial subject would guilt the civil issue of or innocence. his penalties prosecution provided and criminal summary judgment should be affirm- by statute.” Attorney then General ed. applicable discusses This statutes. Court, in Harrington, cognizance took opinion Attorney of the then Gen- analyzed
eral and some statutes re- Attorney
ferred to General. While say
we did in Harrington that need “[w]e not, not, and do Guerry STRONG, Appellant, resolve the undertake to M. difference said [1939] Harrington opinion Attorney Attorney we did between General. When one reads General,” repudiate in its it also can be entirety, ap- DELHI-TAYLOR OIL CORPORATION et al., Appellees. No. 142. pears that this Court leaned toward the Appeals Court Civil of Texas. expressed view Attorney General. Corpus Christi.
I commend the making Commission for June 1966. every legal protect effort public Rehearing Aug. 4, Denied to see that each operator given in a gets field his fair share of the field, compelled I am
conclude here as did the 1939
General the rights and remedies
volved were created statute and did not
exist agree at common I law. further right a statute creates a new
“[w]here