TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00467-CV
Anderson Petro-Equipment, Inc., a Texas Domestic Corporation, and Curtis Ray Anderson, Appellants
v.
State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. D-1-GV-06-002201, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
OPINION
The State of Texas brought an action in district court to enforce three final orders
issued by the Railroad Commission assessing administrative penalties against Anderson Petro-
Equipment, Inc. (Anderson Petro) for failure to plug inactive wells in violation of the Texas Natural
Resources Code. See Tex. Nat. Res. Code Ann. § 81.0534 (West 2001). The State sued Anderson
Petro and its president, Curtis Ray Anderson, (collectively, appellants) to enforce the orders and to
recover additional penalties, attorneys’ fees, and clean-up costs. See id. §§ 85.381, .383, 89.083.
The State’s claims against Anderson individually sought (1) to enforce two of the three final orders
that were issued after Anderson Petro forfeited its corporate privileges and charter, and (2) to recover
clean-up costs incurred by the State after the forfeiture. See Tex. Tax Code Ann. § 171.255
(West 2008). Appellants challenge the district court’s judgment on the ground that the State’s claims
relating to the two final orders issued after Anderson Petro forfeited its corporate privileges are “post-dissolution” claims for which neither the dissolved corporation nor its officers and directors
are liable. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Anderson Petro was the registered operator of three wells that had not been plugged
as required by, or were otherwise not in compliance with, Texas Railroad Commission rules and
statutes. See Tex. Nat. Res. Code Ann. title 3, subtitle B, ch. 89 (West 2001 & Supp. 2009); 16 Tex.
Admin. Code § 3.14 (2010) (Tex. R.R. Comm’n, Plugging). The wells at issue were Arco-Hurd Fee
Lease (09704), Well No. 1, Joes Lake East Field, Tyler County (“the Joes Lake East Well”); Well
No. 1, Arco Fee Sec. 189 Lease (10650), Beech Creek Field (9400), Hardin County (“the Beech
Creek Well”); and Well No. 1, Hankamer Sec. 31 Lease (18075), Devils Pocket, West Field, Newton
County (“the Devils Pocket West Well”). The Commission initiated enforcement actions against
Anderson Petro resulting in three final orders:
i. Final order dated May 11, 2004 ordering Anderson Petro to plug or otherwise place in compliance the Joes Lake East Well and pay $2,000 in administrative penalties (“the May 2004 Order”);
ii. Final order dated October 5, 2005 ordering Anderson Petro to pay $2,000 in administrative penalties for a period of noncompliance of the Beech Creek Well (“the October 2005 Order”); and
iii. Final order dated April 11, 2006 ordering Anderson Petro to plug the Devils Pocket West Well and pay $5,000 in administrative penalties and reimbursement of $2,936.25 in state funds expended to clean the lease (“the April 2006 Order”).
Additional state funds totaling $1,146.25 were spent to clean up the Devils Pocket West Well in
November 2005 and November 2006.
2 Anderson Petro failed to pay its 2004 franchise taxes when due on May 17, 2004.
This resulted in the forfeiture of Anderson Petro’s corporate privileges on October 13, 2004. See
Tex. Tax Code Ann. § 171.251 (West 2008) (comptroller shall forfeit corporate privileges of
corporation if corporation fails to pay franchise taxes). Subsequently, Anderson Petro’s corporate
charter was forfeited on February 11, 2005. See id. § 171.309 (West 2008) (secretary of state may
forfeit charter upon receiving certification from comptroller that 120 days have passed since
corporation forfeited its corporate privileges and corporation has not revived its privileges).
Although the May 2004 Order was issued while Anderson Petro was in good standing, both the
October 2005 Order and the April 2006 Order were issued after Anderson Petro had forfeited both
its corporate privileges and its corporate charter.
The State brought an action in district court against Anderson Petro seeking (1) to
recover the administrative penalties assessed in each of the three Commission orders, along with
civil penalties, court costs, and attorneys’ fees; (2) reimbursement of the state funds used to clean
up the Devils Pocket West Well; and (3) an injunction for Anderson Petro’s failure to comply with
the Commission’s final orders. The State also sued Anderson, seeking to impose individual liability
for (1) the administrative penalties assessed in the October 2005 Order and the April 2006 Order
along with the associated civil penalties; (2) $4,082.50 as reimbursement for the cost to clean up the
Devils Pocket West Well; and (3) court costs and attorneys’ fees. The State asserted that Anderson
was individually liable for these debts of Anderson Petro because they were created or incurred after
Anderson Petro forfeited its corporate privileges. See Tex. Tax Code Ann. § 171.255 (if corporate
privileges are forfeited for failure to file report or pay tax or penalty, each director or officer of
3 corporation is liable for each debt of corporation created or incurred in this state after date on which
report, tax, or penalty is due and before corporate privileges are revived).
The district court rendered judgment against Anderson Petro for the $2,000 in
administrative penalties assessed in the May 2004 Order along with $20,500 in civil penalties for
failure to comply with that order.1 The district court rendered judgment against Anderson Petro and
Anderson, jointly and severally, for (i) the $5,000 in administrative penalties assessed in the
October 2005 Order and the April 2006 Order, (ii) $4,197.70 as reimbursement for funds used to
clean up the Devils Pocket West Well; (iii) $50,000 in civil penalties for failure to comply with the
two orders; and (iv) $11,481.25 in attorneys’ fees plus costs. The judgment also ordered Anderson
Petro to plug or otherwise place in compliance the Joes Lake East Well, and ordered Anderson Petro
and Anderson, jointly and severally, to plug the Devils Pocket West Well.
Appellants challenge the district court’s judgment, contending in one issue that the
court erred by rendering judgment against them on the State’s claims for administrative and
civil penalties resulting from Anderson Petro’s failure to comply with final orders of the
Railroad Commission “issued after Appellant corporation became a ‘dissolved corporation’ under
Art. 7.12(F)(1)(e), Tex. Bus. Corp. Act.” See Tex. Bus. Corp. Act Ann. art. 7.12(F)(1)(e)
(West 2003) (term “dissolved corporation” in this article means corporation whose charter was
forfeited pursuant to tax code unless forfeiture has been set aside).2 Appellants contend that, because
1 Appellants do not challenge this portion of the district court’s judgment. 2 On January 1, 2010, the Texas Business Corporation Act expired and was replaced by the Texas Business Organizations Code. See Tex. Bus. Corp. Act Ann. art 11.02(B) (West Supp. 2009) (“This Act expires January 1, 2010.”). With the exception of filing fee requirements, the provisions of the business organizations code did not apply until January 1, 2010 to entities formed before
4 the October 2005 Order and the April 2006 Order were issued after Anderson Petro forfeited its
corporate charter, the State’s claims did not exist prior to the corporation’s dissolution. Appellants
argue that, as a “dissolved corporation,” it could not be held liable for any claim other than an
“existing claim.” See id. art. 7.12(A)(2) (dissolved corporation continues corporate existence for
three years from date of dissolution for purpose of permitting survival of any existing claim by or
against it), 7.12(C) (corporation shall not be liable for any claim other than existing claim).
Appellants maintain that the State could not sue to enforce the October 2005 Order and the April
2006 Order because they were not “existing claims” as that term is defined in article 7.12 of the
business corporation act. See id. art. 7.12(F)(3) (term “existing claim” in this article means claim
that existed before dissolution and is not otherwise barred by limitations or contractual obligation
incurred after dissolution).3
We will affirm the district court’s judgment.
January 1, 2006, such as Anderson Petro, unless the entity elected early adoption. See Tex. Bus. Org. Code Ann. §§ 402.001-.005 (West Pamph. 2007). There is nothing in the record to indicate that Anderson Petro elected early adoption. At the time of trial, therefore, the operative statute was the business corporation act. In any event, the business organizations code made no substantive changes to business corporation act article 7.12. See id. §§ 11.001, 11.051, 11.055, 11.152, 11.254, 11.311, 11.351, 11.356-.359. 3 Appellants did not bring an appellate issue complaining of the district court’s imposition of individual liability on Anderson under section 171.255 of the tax code. See Tex. Tax Code Ann. § 171.255(a) (West 2008) (director or officer of corporation is liable for each debt of corporation created or incurred in state after date on which report, tax, or penalty is due and before corporate privileges are revived). Appellants’ arguments, both in the district court and on appeal, focus on their contention that the State’s claims did not exist before Anderson Petro became a “dissolved corporation” under the business corporation act, and therefore that neither Anderson Petro nor its officers could be held liable for post-dissolution claims.
5 DISCUSSION
Liability for post-forfeiture orders
Article 7.12 of the business corporation act is a survival statute that provides the
exclusive means by which an injured party may assert a claim against a dissolved corporation that
has ceased to exist for other purposes. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 549-51
(Tex. 1981).4 A corporation that has forfeited its charter pursuant to the tax code is included in the
article 7.12 definition of a “dissolved corporation” unless and until the forfeiture has been set aside.
See Tex. Bus. Corp. Act. Ann. art. 7.12(F)(1)(e). Article 7.12(A) provides that:
[a] dissolved corporation shall continue its corporate existence for a period of three years from the date of dissolution, for the following purposes:
...
(2) permitting the survival of any existing claim by or against the dissolved corporation; . . . .
Id. art. 7.12(A)(2). The term “existing claim” means “a claim that existed before dissolution and is
not otherwise barred by limitations or a contractual obligation incurred after dissolution.” Id.
art. 7.12(F)(3). A dissolved corporation is not liable for a post-dissolution claim. See Hunter,
620 S.W.2d at 553; Landrum v. Thunderbird Speedway, Inc., 97 S.W.3d 756, 758-59
(Tex. App.—Dallas 2003, no pet.). Appellants argue that the State’s claims to enforce orders issued
by the Railroad Commission after Anderson Petro forfeited its corporate charter are post-dissolution
4 At common law, dissolution terminated the legal existence of a corporation, and it could neither sue nor be sued; all legal proceedings to which it was a party abated. See Hunter v. Fort Worth Capital Corp., 630 S.W.2d 547, 549-50 (Tex. 1981); Suarez v. Sherman Gin Co., 697 S.W.2d 17, 19 (Tex. App.—Dallas 1985, writ ref’d n.r.e.).
6 claims for which the corporation cannot be held liable under article 7.12. Appellants also challenge
the district court’s judgment against Anderson individually for all damages and relief awarded to the
State for enforcement of the October 2005 Order and the April 2006 Order. Appellants contend that,
like the corporation, Anderson cannot be liable for enforcement of the orders because they issued
after Anderson Petro was dissolved. Appellants argue that, because there can be no liability against
the dissolved corporation, there is likewise no liability to assess against the corporation’s officers
and directors individually. The linchpin of appellants’ challenge to both corporate and individual
liability is their contention that the State’s claims did not exist pre-dissolution and therefore cannot
be pursued against either the corporation or its officers and directors. We disagree.
Under article 7.12, a “claim” is “a right to payment, damages, or property, whether
liquidated or unliquidated, accrued or contingent, matured or unmatured.” Tex. Bus. Corp. Act Ann.
art. 7.12(F)(2). The statute broadly defines the term, and includes contingent, unliquidated or
unmatured claims. A “contingent liability” is one that is not now fixed, but which will become so
upon the occurrence of some future event. See United States v. Leal, 30 F.3d 577, 586 (5th Cir.
1994) (quoting Black’s Law Dictionary 321); see also Warren Co., Inc. v. Commissioner of Internal
Revenue, 135 F.2d 679, 684 (5th Cir. 1943) (contingent liability is potential liability that may
become absolute liability upon happening of future event). Contingent liabilities include obligations
that are reasonably anticipated but that have not yet actually been incurred. Arch Petroleum, Inc.
v. Sharp, 958 S.W.2d 475, 478 (Tex. App.—Austin 1997, no pet.). Once the actions that may give
rise to future liability have occurred, the contingent claim comes into existence. Article 7.12 requires
only that the actions giving rise to the liability occur before dissolution. If they do, the statute plainly
7 provides for the survival of a party’s right to assert claims arising out of or resulting from those
actions even after the corporation’s dissolution.5
The question before us, then, is whether the actions that ultimately gave rise to the
claims asserted by the State in this suit occurred prior to Anderson Petro’s dissolution on
February 11, 2005. If they did, the State’s claims existed as contingent liabilities of Anderson Petro,
and as unmatured and unliquidated claims against it, prior to its dissolution.
October 2005 Order
Texas law requires that operators plug their inactive wells, or otherwise place them
in compliance with Railroad Commission rules. Tex. Nat. Res. Code Ann. § 89.011 (West Supp.
5 Our reading of this statute comports with the directive that “[s]tatutes prolonging the existence of a dissolved corporation are remedial and should be given liberal construction.” See Alamo Fence Co. v. United States, 240 F.2d 179, 181 (5th Cir. 1957) (quoting Eastman, Gardiner & Co. v. Warren, 109 F.2d 193 (5th Cir. 1940)). As the Fifth Circuit noted, “this is especially true in Texas where the State constitution provides that its corporation laws ‘shall . . . provide fully for the adequate protection of the public . . . .’” Id. It is also consistent with this Court’s holding in Strata v. State, in which we considered a similar provision in the bankruptcy code:
Under the bankruptcy code, whether a claim for payment of the type at issue in this case is discharged depends on when that claim arose. The bankruptcy code defines a “claim” as a:
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured;
... As the statute explicitly states, whether a claim is unliquidated, contingent, unmatured, or unsecured is immaterial. The bankruptcy code requires only that the elements giving rise to liability occurred before the bankruptcy petition was filed.
264 S.W.3d 832, 837-38 (Tex. App.—Austin 2008, no pet.) (citations omitted).
8 2009). The Commission’s rules require that operators commence plugging within one year after
drilling operations cease on dry or inactive wells. 16 Tex. Admin. Code § 3.14. The October 2005
Order assessed a $2,000.00 penalty against Anderson Petro for plugging violations at the Beech
Creek Well, and further ordered that “[n]oncompliance with this order is subject to enforcement by
the Attorney General and subject to civil penalties of up to $10,000 per day per violation.” The
October 2005 Order includes findings of fact that the Beech Creek Well (1) ceased production on
or before March 31, 2002, (2) was not properly plugged in compliance with the Commission’s rules,
and (3) was out of compliance from April 1, 2003 until October 18, 2004. All of the events giving
rise to the assessment of penalties occurred prior to the forfeiture of Anderson Petro’s corporate
charter. From the commencement of the period of non-compliance, Anderson Petro had a contingent
liability to the Commission for administrative and civil penalties. See Tex. Nat. Res. Code Ann.
§ 81.0531(a) (providing for assessment of penalties for violation of provisions of rules pertaining
to safety or prevention or control of pollution). The State also had an unmatured claim against
Anderson Petro for civil penalties in the event Anderson Petro failed to pay the assessed
administrative penalties. See id. § 81.0534 (civil penalties owed under sections 81.0531 through
81.0533 of code may be recovered in civil action brought by attorney general at request of
commission). In its petition, the State sought to recover the administrative penalties assessed in the
October 2005 Order along with additional penalties for Anderson Petro’s failure to comply with
the order. These claims existed, albeit in a contingent and unmatured form, prior to
Anderson Petro’s dissolution and, consequently, Anderson Petro’s corporate existence continued for
three years for purposes of permitting the survival of these claims. See Tex. Bus. Corp. Act Ann.
art 7.12(A)(2), (C).
9 April 2006 Order
Applying the same analytical framework, we next consider whether Anderson Petro’s
corporate existence continued for three years for the purpose of permitting survival of the State’s
claims related to the April 2006 Order. The Commission ordered Anderson Petro to plug the Devils
Pocket West Well and reimburse $2,936.25 in State funds expended to clean up the well, and
assessed a penalty of $5,000 for plugging violations. The April 2006 Order includes findings that
the Devils Pocket West Well ceased production on or before January 2002 and was not properly
plugged in compliance with the Commission’s rules. In its petition, the State sought to recover the
penalties assessed by the Commission and additional penalties for failure to comply with the order.
The State also sought reimbursement for the $2,396.25 in State funds used to clean up the well in
July 2005, along with an additional $1,146.25 in State funds spent to clean up the well in November
2005 and November 2006. Finally, the State sought an injunction requiring Anderson Petro to plug
or otherwise bring the Devils Pocket West Well into compliance. All of these claims arose out of
Anderson Petro’s failure to plug the Devils Pocket Well by January 2003, twelve months after the
well ceased production, as required by Commission rules. See 16 Tex. Admin. Code § 3.14. The
event giving rise to the assessments contained in the April 2006 Order and the claims asserted by the
State in its petition occurred prior to the date Anderson Petro forfeited its corporate charter.
Consequently, those claims existed as either a contingent liability of, or an unmatured claim against,
Anderson Petro prior to its dissolution.
Appellants cite to this Court’s holdings in Jonnet v. State, 877 S.W.2d 510, 521-23
(Tex. App.—Austin 1994, writ denied) and Serna v. State, 877 S.W.2d 516, 517-18 (Tex.
10 App.—Austin 1994, writ denied), in an attempt to bolster their argument that the State’s claims did
not exist pre-dissolution. This Court held in Jonnet that, for purposes of tax code section 171.255,
the “debt of the corporation” was not “created or incurred” until the Commission issued its order
directing the corporation to pay a penalty. 877 S.W.2d at 523. We held in Serna that the corporate
debt was “created” when the Commission assessed its fine. 877 S.W.2d at 519. Anderson cites
Jonnet and Serna for the proposition that “[a]n administrative penalty under the Natural Resources
Code or the obligation to pay the penalty does not exist until assessed by the Railroad Commission
in a final order.” Anderson’s reliance on these cases is misplaced—in Jonnet and Serna, this Court
was addressing the question of when a “debt of the corporation” is “created or incurred” under
section 171.255 of the tax code for the purpose of imposing individual liability on officers and
directors of a corporation that has forfeited its corporate privileges. This is a different question from
what constitutes an “existing claim” under article 7.12 of the business corporation act, for which
even a dissolved corporation may be held liable. We conclude that the claims asserted by the State
in this suit were “existing claims” under article 7.12 of the business corporation act prior to
February 11, 2005, the date Anderson Petro forfeited its corporate charter and became a “dissolved
corporation.”
In two sentences in their brief, appellants contend that (1) because claims against an
officer may only be brought in district court, a claim for a “debt” against the officer does not exist
until brought in court, and (2) a suit seeking to require a corporate officer to plug a well does not
constitute a claim for a liquidated money obligation. Appellants do not further elaborate, explain
or adequately brief these issues. See Tex. R. App. P. 38.1(h) (brief must contain clear and concise
argument for contentions made, with appropriate citations to authorities and to record). These
11 two statements, unsupported by argument or authority, present nothing for this Court to review. See
General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 n.1 (Tex. 2001).
Timeliness of State’s suit
An existing claim must be brought against a dissolved corporation before the
expiration of the three-year period following the date of dissolution. See Tex. Bus. Corp. Act Ann.
art. 7.12(C). Here, the State filed its petition asserting claims to recover for monetary and injunctive
relief arising out of Anderson Petro’s failure to plug the Beech Creek West Well and the
Devils Pocket West Well on November 2, 2006. This suit was filed within three years of
February 11, 2005, the date Anderson Petro forfeited its corporate charter and became a “dissolved
corporation” for purposes of article 7.12. See id. art. 7.12(F)(1)(e). Consequently, Anderson Petro
continues to survive for purposes of the State’s suit “until all judgments, orders, and decrees therein
have been fully executed . . . .” See id. art. 7.12(C). We overrule appellants’ issue.
CONCLUSION
Having overruled appellants’ issue, we affirm the district court’s judgment.
_____________________________________________
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Waldrop and Henson
Affirmed
Filed: June 18, 2010