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.
                                                         _. -
                           :                     :




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