Harrington v. State

• Decision Date: 18 November 1964
• Docket Number: No. 11234,11234
• Citation: 385 S.W.2d 411
• Parties: Harry M. HARRINGTON, Jr., et al., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 411

385 S.W.2d 411

Harry M. HARRINGTON, Jr., et al., Appellants, v. The STATE of Texas, Appellee.

No. 11234.

Court of Civil Appeals of Texas, Austin.

Nov. 18, 1964.

Rehearing Denied Dec. 9, 1964.

Second Motion for Rehearing Denied Jan. 6, 1965.

Gordon Wellborn, Houston, Phenix, Keeling & Wilder, Henderson, Harrington & Harrington, Longview, for appellants.

Waggoner Carr, Atty. Gen., Cecil C. Rotsch, Roger B. Tyler, Kerns B. Taylor, Robert C. Flowers, Robert O. Smith, Asst. Attys. Gen., Austin, for appellee.

HUGHES, Justice.

The State of Texas sued H. M. Harrington, Jr., Charles W. Lutes, Reid H. Allgood, John W. Baton, appellants, and Douglas Godfrey, individually and as members of Hal Company, a partnership, for penalties as authorized by Art. 6036, Vernon's Ann.Tex.Civ.St. ¹ for the violation of certain statutes and rules and regulations of the Railroad Commission.

Following a trial by jury, judgments in varying amounts were rendered against all defendants except Douglas Godfrey as to whom a take nothing judgment was rendered.

Appellants' first point is that the trial court erred in denying them the right to require the State of Texas to answer interrogatories pursuant to the provisions of Rule 168, Texas Rules of Civil Procedure. This rule provides, in part:

'At any time after a party has made appearance in the cause, or time therefor has elapsed, any other party may serve upon such party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them or by the attorney for the party. * * *

'Interrogatories may relate to any matters which can be inquired into under Rule 186a, but the answers, subject to any objections as to admissibility, may be used only against the party answering the interrogatories.'

It is our opinion that this rule is not applicable to the State of Texas. We know of no State official or agent who is authorized to answer interrogatories for the State. It is the duty of the Attorney General, under Art. 6036, to institute and conduct this suit, but he is prohibited by Art. 4411, V.T.C.S., from making any admission, agreement or waiver in a suit to which the State is a party which shall prejudice the rights of the State. The powers of the Attorney General, thus circumscribed, are not to be enlarged by the courts. State v. Reagan County Purchasing Co., 186 S.W.2d 128, El Paso Civ.App., writ ref., w. o. m.

Appellants cite authorities to the effect that Federal Civ. Rule 33 of similar import to Rule 168 has been held applicable to the National Government. Without attempting to analyze the powers of the Attorney General of the United States, we note that he has broad powers of compromising claims against the United States. Title 28, Sec. 2414, U.S.C.A. The Texas Attorney General has no comparable authority. Unless the Attorney General is authorized to answer interrogatories for the State we know of no other officer who is so authorized and appellants do not suggest any. It would be futile for the Attorney General to answer interrogatories for the State when his answers could not prejudice the rights of the State. Point One is overruled.

Point Two is that the trial court erred in permitting the State to file a 'trial amendment' an hour before trial time and in denying their motion for continuance based on their resultant surprise.

That portion of the amended pleading ² to which appellants objected by filing a motion to strike was the allegation that, 'The Defendants violated Railroad Commission Statewide Rule 37, and also Hawkins Field Rule 1,' whereas the previous pleading alleged that, 'The Defendants violated Railroad Commission Statewide Rule 37, and also East Texas Field Rule 1, * * *.'

We quote from appellants' argument under this point:

'The significance of this late change in pleading is readily apparent. The well in question is located in the Hawkins Field and is not located in the East Texas Field. The Defendants obviously, therefore, had not and could not have violated any East Texas Field Rule, because such Field Rules are not and could not be applicable to a well in the Hawkins Field. The Defendants had come prepared to defend the case based on the Plaintiff's case as it was then pleaded, and were forced without time for preparation into a case predicated on an entirely different cause of action. Strict pleading is required in civil penalty suits.'

The only significant difference between East Texas Rule 1 and Hawkins Field Rule 1, besides spacing variation, is the provision in the East Texas Rule that wells drilled in violation of a permit issued under it 'shall be plugged,' whereas the Hawkins Field Rule 1 does not contain this provision.

Statewide Rule 37 with the violation of which appellants were charged in all prior pleadings contains the provision that a well drilled in violation of a permit granted under it 'shall be plugged.'

Under these circumstances, we find no element of justifiable surprise by appellants which was occasioned by the late filed amended pleading. They certainly were not surprised when informed that their well was in the Hawkins Field and not in the East Texas field. They were at all times charged with violation of a commission Rule which required the plugging of the well. The Hawkins Field Rule, on its face, is less onerous than the East Texas Field Rule, because it does not expressly require the plugging of a well drilled in violation of a permit issued under it.

It is our opinion that the trial court did not err in refusing appellants' motion for a continuance. There was error in the trial court's action in permitting an incomplete pleading to be filed as an amended petition. This error, in our opinion, was harmless under Rule 434, T.R.C.P. Point Two is overruled.

Points Three and Four, jointly briefed, are that the court erred in holding that Rule 37 of the Commission applies to a well in the Hawkins Field which is subject to Hawkins Field Rule 1, and that the court erred in holding that Rule 37 applied to a deviated will rather than Rule 54.

It is our opinion that the court did not err in holding that Rule 37 is of statewide application except as modified by special rules for individual fields such as the Hawkins Field.

Statewide Rule 37 is a spacing rule with several provisions. Section (a) provides spacing distances, application and hearing on exceptions. Section (b) provides for a hearing on exceptions duplicating parts of Section (a). Section (c) provides for the filing of a plat. Sections (d), (e) and (f) read as follows, to-wit:

'Section (d). In the interest of protecting life and for the purpose of preventing waste and preventing the confiscation of property, the Commission reserves the right in particular oil and gas fields to enter special orders increasing or decreasing the minimum distances provided by this rule.

'Section (e). No well drilled in violation of this rule without special permit obtained, issued or granted in the manner prescribed in said rule, and no well drilled under such special permit or on the Commission's own order which does not conform in all respects to the terms of such permit shall be permitted to produce either oil or gas, and any such well so drilled in violation of said rule, or on the Commission's own order shall be plugged.

'Section (f). This rule shall in no wise rescind, abrogate or modify the provisions of special orders applicable to the spacing of wells in particular fields requiring minimum spacing distances either greater or smaller than provided herein.'

The Hawkins Field Rule 1 contains this provision:

'THEREFORE, IT IS ORDERED By the Railroad Commission of Texas that the following rules and regulations be and the same are hereby adopted effective this date to be maintained in effect, in addition to the general conservation rules and regulations governing said field, for this field or extensions thereof until further ordered by the commission:'

This rule contains spacing regulations differing from those contained in Rule 37. It provides that the general order of the Commission as to subdivision of property shall apply, an order which is not a part of Rule 37. The Hawkins Field Rule contains numerous technical provisions. It does not contain a provision that a well drilled in violation of a permit issued under it shall be plugged.

When Section (f) of Rule 37 and the copied portion of the Hawkins Rule 1 are considered, it is evident that the two rules are to be read and construed together, and that the special field rules have priority over Rule 37 only to the extent of conflicting provisions.

It is a general rule of statutory construction that statutes in pari materia should be read and construed together as though they were parts of one and the same law. 53 Tex.Jur.2d, Statutes, Sec. 186. This rule of statutory construction is applicable to rules of the Commission which have the force of statutes.

The plain express intent of the Commission is to prohibit the production of oil or gas from a well drilled in violation of its rules. We cannot ascribe to the Commission an intent, derived from its failure to include a plugging clause in Hawkins Rule 1, to discriminate in favor of illegal wells in the Hawkins Field and to allow them to produce and go unplugged. In our opinion, there was no need to incorporate a plugging clause in Hawkins Rule 1 for the reason that it was in Rule 37, a rule of Statewide application and expressly brought forward in the Hawkins Rule 1. There being no conflict between the plugging requirement of Rule 37 and any provision of Hawkins Rule 1, we hold that Rule 37, in such respect, is fully operative in the Hawkins Field.

Rule 54 of...