*1 917 to reflect judgment and sentence form the offense stands convicted
that Smith child, having been sexual assault of felony convicted of offense.
twice before found no reversible error
We have result, proceedings. As
trial court’s judgment and sentence of
reform con- court to reflect that Smith stands
trial of sexual assault of a
victed of offense
child, having been twice before convicted felony offense. Weber, Weber, Mehaffy, L. Keith
James Beaumont, Gonsoulin, appellants. & Satterfield, Jr., Woods, Lynn Louis 0. C. Woods, Jr., Sat- James E. Sloan Harman & Houston, terfield, appellee. WILLIAMSON, Edgar A. et al., Appellants, OPINION PER CURIAM. MOBIL PRODUCING TEXAS & NEW Mary Edgar A. Williamson wife INC., Appellee. MEXICO (herein “the William- Eleanor Williamson No. 09 86 235 CV. lessors, sons”), others, as executed and mineral lease and delivered Texas, Court of Mexico Producing Texas & New to Mobil Beaumont. Inc.”). (herein, “Producing, Inc. Har- in the Deed Records of was recorded Sept. Decided 1987. provision: County, din and contained Rehearing Denied Oct. paid by “3. The to be are:
“(a) liquid hydrocar- on oil and other well, saved at the of that bons 27.5% land, from said same produced saved the wells or to the to be delivered at pipeline lessor in the to which credit of the wells be connected.... “(b) casinghead gas pro- duced said land: used lessee for when sold or gasoline or other extraction of therefrom, mar- products *2 gas ket value at the of the so well sold lessee. This lessee must valued the used, provided that the market being val- highly, willing lease to pay the 27.5% ue shall not exceed the net amount royalties. by
realized lessee from gas the sale of Basically, part litigation this of the was products, including and gas- extracted brought by Appellants against Ap- the gas (“net oline and residue amount re- pellee for contract, being the breach of a being proceeds alized” defined as re- the written and mineral lease. by ceived from lessee the sale less all appeal granting This of a expenses by cost and incurred summary judgment “Producing, of favor from the mouth of through the well Inc.”, Court, In sale, lessee. the District excluding separation normal field stage lawsuit, expense bear). earlier of the lessee alone shall both the gas the event processed Appellants is and the were cast in plant interest, in which lessee owns an the role of The Appellants co-defendants. expense include as amorti- against then cross-acted over Ap- and pipelines, zation of its investment in pellee, lessee, for breach rising of contract plant and its plus facilities a rea- out by of decision—said Appellants sonable rate of return thereon. The have unjustified been unilateral and —to by use lessee of or any part all of the suspend during payments products, including gasoline extracted pendency of the cause action of gas, and residue for its own account filed M. Thompson, Choice et ux. purposes shall hereof be The relief Appellants ask price deemed sale at pre- the market here summary is reversal of the adverse vailing plant at the at the use judgment. argue They they were enti- lessee, however, provided, if the tled, contract, under the written lease price any product, gasoline is attorneys’ recover their expenses, fees and regulated governmental by any agen- and that there were material issues fact cy, price market product, gas- of such existing as to the amounts such reason- oline com- able fees expenses. and In their puting royalty product, gas- on such brief, Appellants say background oline or used lessee shall not be appeal price permitted excess of would be beneficial to an regulations. understanding If a controversy. refund of a of the willWe portion of proceeds derived from attempt comply. gas may the sale of under Appellants Day Thompson say Syble order, regulation rule or M. originally Choice filed a Energy Federal Regulatory Commis- alleging cause action a bad faith sion or other governmental agency against Producing case Mobil Texas New& having jurisdiction net amount Mexico the Union Texas Petroleum realized shall be calculated on the basis Corporation, Corporation. J.M. Huber unsuspended and/or uncondi- Thompsons, original plain- being the price tional certificated for such suit, tiffs in alleged had that Produc- which lessee receives. Lessee Huber, pooled had
hold portion without interest Thompsons’ producing oil tract bad faith any proceeds subject possible re- allegedly unproductive with other tracts refund, fund until the if any amount of tract, land. On Thompson’s Choice is determined final unappealable or- Number One Well der of Energy the Federal Regulatory completed been drilled an excellent governmental Commission or other producer. commercial agency;” written, express The Choice Well provi- Such were the Number One concerning royalties paid by sions to be said be one of the Inc.’s Paragraph 5 of the other tracts. think that tract with producers. We largest on-shore alia, provided, inter amount of Williamsons’ to state that the it is correct following: unusually high in that production was (not including the amount of the designa- “Lessee shall file written unit during ap- accumulated production), total county premises in which the tions months proximately the first five are located. The unit shall become ef- *3 case, was of the main the settlement provided on the date in the des- fective roy- $1,214,215.95, out to be which worked or, ignation designation makes if $243,043.00 per month. alties of about provision, become no such it shall effec- upon tive the date it is record. large filed for original suit there were a In the be A unit established hereunder shall other non-drill-site landowners number of valid and defend- effective originally named as were also who though may this even there be lease After the Choice by Thompsons. ants mineral, royalty or leasehold interests in and came Thompson Number One Well the unit which are not in lands within pro- prolific proved profitable to be a effectively pooled or unitized. Such ap- ducer, company defendants then the oil designated any units be time before from parently immediately sought leases completion or a well or after surrounding landowners. some of the les- wells or therefrom Appellants March reduce, enlarge, modify see or dis- oil, leas- Appellee gas executed and mineral solve such unit or units at time property covering Appellants’ es oil, discovery adjacent to or near the well
was located pooled acreage, on the other minerals Appellants’ site. One of the terms same, or, after required, special typewritten in a subsequent produc- the cessation paragraph, Appellants’ property would by filing a tion written declara- definitely pooled be or unitized with the county such effect in the same tion to typewritten tract. That pro- herein ... In lieu of the paragraph provided that the lessee vided, lessor shall receive on pool days within 120 all of the said por- pooled only a unit so form Williamsons’ lands with other lands to stipulated royalty herein as surrounding a Gas Unit the Choice acreage placed the amount his in the Well, only penal- son Number One and the therein on an unit or his interest ty not the said lands would acreage acreage basis bears to the total the forfeiture of the the lessee. particular unit in- pooled so Thereafter, pool did (Emphasis by Appel- as set out volved.” Appellants’ property with the Choice lants) Large royal- Number One Well. agreement decide that the lease de- We paid ties were months to several rights par- the basic between the termines Williamsons. after appeal. this ties of suit, deter- filed their the lessee royalty payments to mined to withhold all pending out- defendants The Division Orders individual Appellants argue litigation. come of the argues or- that certain division them of deprived Appellants gave it the ders executed $20,000.00 per month. amounting to about payment of right suspend royalties.j Hence, against cross-action they filed a granted orders But these division of a written lessee for breach contract. another, separate corporation, not to Pro- pooling ducing, Inc. These orders authorized
The lease contained a royalty payments in the granted suspension of provision in which the lessee was dispute”. There is no Thompsons’ of a valid “title right pool or unitize the event dispute” in subjudice. “title the case Fur- from the prod- sale and extracted thermore, ucts, including gasoline consideration for division and residue (‘net paid by Producing, being orders was amount realized’ defined as proceeds We Williamsons. determine that the divi- received lessee from the sale order, less expenses sion under all cost and incurred our executed lessee) from the separate corporation, favor of mouth of the another well through sale....” destroy would diminish nor obli- gations, duties and Appel- covenants of the when used any pur- lessee for lee under the and mineral lease pose other gas- than the extraction of Appellants insofar as these are concerned. products oline other therefrom and permitted by those paragraph numbered very paragraph first of the lease market value at provides: casing- mouth of the well of such “Lessor, in consideration of $Ten *4 however, gas, provided, head that lessee ($10.00), No/100—Dollars paid, in hand shall in no event be to deter- receipt acknowledged, of which is here change mine and market of- value more royalties provided and herein of every ten year. than once calendar agreements the lessee of of Changes shall prospective only. made be contained, hereby grants, herein price If casinghead gas or and lets exclusively unto lessee....” regulated any governmental agency, added) (Emphasis the market value for the can There be no doubt that this was an computing royalty hereunder shall not be express agreement of to pay the lessee in price permitted excess royalties. payment royalties, The we regulations....” think, paramount is the consideration for Now, admittedly, procure have the lease. The recitation of is but $10.00 fairly powerful magnifying glass to read specifically agreed nominal. The lessee as the leases and some of the in exhibits part of the consideration of the parts record. Some of the of the leases are pay royalties provided therein. parts “whited out”. repro- These were not pertinent There is a provision, reading in duced in the exhibits. We have done the part: incomplete photo- best we can with these lease shall in copies. misquoted remain force for a static If we have a word “[T]his (1) years term of one phrase, from this date or a it simply is because we [sic] (called term’) ‘primary long illegible had to partially there- deal with exhibits. oil, gas, after as sulphur, ma- fissionable clearly The lessee express, had made an terial or produced other mineral is agreement pay royalties written said land or land with which said land is the Williamsons and to continue to pay the pooled.” royalties to the produc- Williamsons until fact, Appellee paid tion ceased. In The specifically lessee and cove- until the lawsuit pay was nanted the oil credit filed. Without with the consultation Wil- was lessors when oil delivered in the liamsons, stopped making the lessee pipeline may to which the be wells connect- royalty payments. We hold that material “(b)”, ed. royalty Then the clause on concerning fact issue was raised a breach casinghead gas, stated: express agreements covenants and when sold or used for the lease. We deem a fact was issue raised gasoline prod- extraction or other breaching as to the actual consideration for therefrom, ucts val- market the lease. used, ue at the well of the so sold provided lease, Paragraph pertinent market value shall of exceed the net part, provides: amount realized or not a only dispute was as to whether designated any time “Such units production made in unit or completion of a certain or after the either before faith, was a dis- good faith or bad therefrom well or wells the les- pute between reduce, enlarge, modify and lessee see. such unit or units at or dissolve oil, discovery gas or time upon by relied Produc- The division order pooled acreage, on the other minerals real, honest, fide required a bona same, or, discovery at after concerning of the Wil- dispute title title produc- subsequent to the cessation of dis- land. We find no such title liamsons’ by filing a declara- written pute here. in the same coun- tion to such effect Verble, supra, the Austin In the case of added) (Emphasis ty....” held, page 71: Court of So, lessee, if is “after the clearly, the it damages hold that a suit “We same,” change can of an oil and lease is a suit breach only subsequent unit to the cessa- purview of art. a contract within the production. Under our tion of 2226.” constant since dis- has been Verble, argument was made fact, covery. royalty payments the lessee that he should not be liable royalty were later resumed and the full interpleaded breach of contract because he payments were restored to the William- disputed deposited *5 Appellee, sons. We determine that the un- But, registry again, court. the Aus- separate indepen- is a der this response tin court’s was: corporation. challenged by dent This is not authority “He cites no for this assertion Appellee. and we find none.” law, involving It is now settled oil and Verble, further in The Austin court went leases, rights, duties and obli saying: gations of both the lessor and the lessee interpleader, “We hold that a defensive and, therefore,
are determined the lease brought after the institution of a suit to Furthermore, contractual. the lease consti funds, disputed is not a de- recover the and, case, tutes contract our was on a attorneys’ fees.” fense to the award printed typewritten para form with several graphs. Amoco Production Co. v. Alex ander, (Tex.1981). 622 S.W.2d 571 The Motion the Cross-Defendant,Pro- Furthermore, and contracted ducing, Inc., Summary Judgment pool property the Williamsons’ with the Against the Williamson Defendants fabulously productive Thompson Choice motion, notice that the movant its and, thereafter,
1No. Well
it would not
along
Appellee,
set
with Huber
out that
modify
reduce nor
nor dissolve the unit at
Corporation
and Union Texas Petroleum
time after
(the companies),
703.96 acre
established a
production
cessation of
of minerals there
unit, designated
Thomp-
as the Choice
withholding
royalty pay
from. The
consisting
1
of the lands and
son Unit No.
brought
ments
about breach of a written
Designa-
in a certain “Unit
leases described
containing
express
contract
covenant
1”,
tion,
Thompson
Number
Unit
Appellants were entitled to
for which the
Later,
4, 1985.
on November
dated June
interest,
past
royalties,
recover
due
reason
amended,
21, 1985,
unit was
but was
expenses,
able
and reasonable
The lands
effective as of June
Coffman,
Verble
fees.
We find that cluded this unit dispute Thompson lands and other lands. as to the Williamsons’ title. The motion, ducing,
In this same the movant set out Inc. His affidavit sets out he oil that, 11, 1985, reviewed four division orders about November Mobil Oil orders, and four division attached to Corporation purchased Producing, Inc.’s affidavit, his and found them to be true production share of the from the unit. copies correct division Thereafter, purchaser, Corpo- Mobil Oil orders executed the Williamsons in fa- ration, sent out its own division orders to vor of Mobil Corporation. Oil These divi- unit, the owners interests orders, us, sion proffered by it seems to including Thompson and Williamson de- affirmed, Appellee, affirm, or tended to Thompson fendants. The re- defendants title of the Williamsons. fused to execute these orders. division event, In any only proffered affidavit Then, 26, 1985, on December was the affidavit of Norton sons filed Thompsons the main case. The allegations and it does refer to alleged underpayment Appellee. the motion of themselves and that the establishment reply response by There Wil- the unit was done in bad faith because the liamson defendants which is sworn to. companies including, unit, lands Williamson defendants had not consented susceptible were not to any withholding royalties by of their from the well. should be [It Producing, response Inc. This of Wil- noted, here, did not defendants, liamson opinion, gives in our attack the Williamsons’ title.] important, rise to material issues of fact as 20,1986, important, paramount questions on well as January about Produc- law. suspended payment of all respect 166-A(c) provides Rule judg- Later, April from the unit. sought upon ment the motion will be ren- 18, 1986, filed defensive if pleadings, dered forthwith admis- affidavits, sions, interpleader action in main authenticated or certified records, alia, public any, inter if on file motion, In its gave suit. no reason *6 hearing, the time of the show that there is simply perceive this action. We that genuine any issue as to fact material 166-A(c) complied was not TEX.R.CIVP. moving party and that is entitled to think because we the Motion for Sum- judgment as matter a of law on the issues mary Judgment did the specific not state expressly set out the motion. We decide grounds suspending royalty pay- that, under this there are material ments. issues raised moving of fact and that the on, that, The motion did state later in party has not shown that it is entitled June, 1986, companies judgment as a matter of law. presented sons—but not the Williamsons— reply We also determine that the second joint requesting a motion to the Court a defendants, sup- of Williamson original, dismissal main case with plemental summary judgment motion for prejudice Thompsons, alleging that Appellee, genuine a creates issue things matters fact and in controver- paramount fact resulting, material sy had settled by been and between the law, questions concerning the William- companies but, again, expenses. sons’ fees and We — not as to the Williamsons. the mo- payments think interest on late blithely position took the is a material fact issue. doWe hold, however, not the Williamsons cross-claims the Williamsons were moot. conclusively proved a con- breach of Query: Why? Appellee’s Attached Hence, having tract as matter of law. Norton, motion anwas affidavit of Jack T. error, judgment found we reverse Manager who was the of the Division Or- remand the trial cause merits. der and Title Corpora- Unit for Mobil Oil employee tion. Norton was not an of Pro- AND REVERSED REMANDED. Justice, concurring. BURGESS, However, I do not result.
I concur involving the exist case as one
Ariewthis of material fact. genuine issue
ence of 166-A requires that
TEX.R.CTV.P. genuine is no issue that there
movant show moving fact and that the material
as judgment as a matter
party is entitled expressly set out
law on the issues I both. The movant must show
motion. genuine issues as to there are no
believe facts, not that the movant was
material but law. recover as a matter of
entitled to prove
Williamson was fact issue until Mobil established
material summary judgment. to a
its entitlement issue of failure to raise the
Williamson’s by proper affidavit is of no
attorney’s fees non-moving party has
consequence. The moving party until the establish
no burden summary judgment. right its to a
es
Bankers Ins. Co. Commercial Life
Scott,
(Tex.App. Tyler
establish law, i.e., suspension its
a matter of breach, not a the Williamsons obligation under no to come forth summary response. judgment
Avith properly remand majority
Because the has
ed, I concur. *7 JOHNSON, Pershing Appellant,
John Texas, Appellee.
The STATE
No. 09 86 119 CR. Texas,
Court
Beaumont.
Sept. 1987.
Rehearing Denied Oct.
Dissenting Opinion Corrected 15, 1987.
Oct.