Gardner v. Railroad Commission

333 S.W.2d 585, 160 Tex. 467, 3 Tex. Sup. Ct. J. 260, 1960 Tex. LEXIS 573

• Court: Texas Supreme Court
• Decided: March 23, 1960
• Docket: A-7734
• Status: Published

Opinions

Mr. Justice Greenhill

delivered the opinion of the Court.

Roy Gardner brings this direct appeal from the 126th District Court of Travis County. Because the appeal does not come within our limited jurisdiction on direct appeal, we do not reach the merits of the controversy and must dismiss the appeal.

Gardner brought in a gas well in Matagorda County in December of 1958. The Railroad Commission classified the well as a discovery well in the Bruce-Flo or Frio E-3 sand. With that classification, the well was entitled to produce for 18 months at the rate of 25% of its potential under statewide rules 24 and 25 of the Railroad Commission. Gardner contracted to sell that production to Tennessee Gas Transmission Company.

In the vicinity there were a number of other gas wells producing from the Palacios sand or reservoir. These wells were under fieldwide proration orders, and wells in this field were allowed to produce substantially less than Gardner’s well which was regarded as being in a separate reservoir.

On December 15, 1959, at the instance of producers in the Palacios field, particularly Christie, Mitchell and Mitchell, the Railroad Commission determined that Gardner’s well was not in a separate reservoir after all, but was in a common reservoir with those in the Palacios field. Hence Gardner’s well was not a discovery well in a new field and was subject to the same fieldwise proration orders as others in the Palacios field. As a result of the Commissioner’s redetermination, Gardner’s allowable gas production was cut from approximately 4 million cubic feet per day to approximately 600,000. In dollars and cents, it cut his production from approximately $800 per day to roughly $100 per day.

On December 22, 1959, Gardner filed suit in the 126th District Court of Travis County to set aside the order of the Commission which placed his discovery well in the common Palacios reservoir and so drastically reduced his allowable production.

On December 30, the Commission formalized its order of December 15. It determined that Gardner’s well was in a common reservoir with the wells in the Palacios area.

On January 1, 1960, Judge Jack Roberts, presiding in the 126th District Court, entered a temporary restraining order enjoining the enforcement of the Commission’s orders of December 15 and 30. By agreement of counsel the temporary restraining order was kept in force until and during the trial of the case.

On Feburary 3, 1960, after a trial, Judge Roberts announced and entered his judgment that the Commission’s orders of December 15 and 30 were void ad initio: that they were arbitrary, illegal, and were not reasonably supported by substantial evidence. The judgment of February 3 permanently enjoined the Commission from enforcing those orders.

On the same day, February 3, the Commission, and persons aligned with it, excepted to the judgment and gave notice of appeal to the Court of Civil Appeals sitting at Austin. It was the position of the Commission, and the Attorney General representing it, that because the State is not required to post a supersedeas bond, the giving of the notice of appeal then and there terminated the jurisdiction of the trial court and placed the jurisdiction in the Court of Civil Appeals.

It was and is further the contention of the Commission and the Attorney General that giving of notice of appeal performed the function of a writ of supersedeas and that the judgment of the district court of February 3, including the permanent injunction, was thereupon superseded. They point out that the trial court did not, prior to judgment, grant a temporary injunction or enter an order continuing the temporary restraining order after judgment.

In his order of February 10, later referred to, Judge Roberts recited that prior to the entry of the judgment of February 3, counsel for Gardner requested a temporary injunction to continue the status quo [that Gardner’s well was a discovery well in a separate field and entitled to the larger allowable], but he did not grant the injunction because “the Court had no information * * * to the effect that the Commission would attempt to re-assert jurisdiction during the appeal of the case to change the status quo of the parties. * * *”

After the entry of judgment by Judge Roberts on February 3, the Commission, upon advice from the Attorney General, determined that the judgment, holding that its orders were void, had been superseded. It thereupon determined that its orders of December 15 and 30 should be complied with by Gardner and others until the matter was finally determined upon appeal.

So on February 8, 1960, the Commission, through its chief gas engineer, wrote Gardner. He told Gardner that the Commission’s order putting Gardner’s well in the common Palacios pool went [back] into effect on February 3 upon the Commission’s giving notice of appeal to Judge Roberts’ judgment. The letter then said, “Therefore we are placing this well on the proration schedule for the Palacios (Frio E sand) effective February 3, 1960.”

At about the same time the Commission wired its agent in Houston that “You are advised that the restraining order [as to Gardner’s well] has been dissolved * * *” and that he should “act accordingly”; i.e., he should enforce the Commission’s pro-ration order for the Palacios field against Gardner.

Gardner reacted promptly. On the same day, February 8, he filed in Judge Roberts’ court a cotion for partial new trial. He set out the above and other facts and prayed particularly for a temporary restraining order and temporary injunction against the Commission’s order pending appeal to preserve the status quo.

On the same day, February 8, Judge Roberts entered such a temporary restraining order. He set the matter down for a hearing on the matter of the temporary injunction for February 15. This action by Judge Roberts, on Feburary 8, was within ten days from the entry of his judgment on February 3.

The Commission and its ally, Christie, Mitchell & Mitchell, reacted with equal swiftness. They promptly moved to dissolve Judge Roberts’ restraining order. Their motion to dissolve was overruled on February 10. On that same day, the Commission and its allies filed in the Third Court of Civil Appeals at Austin an application for a writ of prohibition against Judge Roberts.

On February 11, 1960, the Court of Civil Appeals granted the writ of prohibition. Its opinion, Railroad Commission v. Roberts, 332 S.W. 2d 745, sets out at length the facts and various orders above described. That court concluded that Judge Roberts’ judgment of February 3 had been superseded by the giving of notice of appeal to the Court of Civil Appeals, and that his temporary restraining order of February 8 denied to the Commission its right to supersede the judgment. The Court of Civil Appeals was of the further opinion that its jurisdiction had attached to the case upon the giving of notice of appeal by the State on February 3. Hence it issued the writ of prohibition under Article 1823 as one which was “necessary to enforce the jurisdiction” of the court. The order of the Court of Civil Appeals restrained Judge Roberts from enforcing his restraining order of February 8 and “from taking any further action of any kind whatsoever with respect to” the matter which would interfere with its jurisdiction or which would interfere in any way with the rights of the Commission to supersede Judge Roberts’ judgment of February 3.

No appeal was taken to this Court from that order. Indeed there is no provision for an appeal to this Court from a writ of prohibition issued by a Court of Civil Appeals.

Following that opinion and order of the Court of Civil Appeals, we come to the order which is the subject of this direct appeal. On February 12, the day after the action by the Court of Civil Appeals, Judge Roberts dissolved his temporary restraining order of February 8, and directed that Gardner take nothing by virtue of his motion for partial new trial and request for injunctive relief pending appeal.

Judge Roberts entered such order of February 12 in compliance with the writ of prohibition of the Court of Civil Appeals. His order of February 12 plainly states, “* * * therefore, in compliance with said order of the Honorable Court of Civil Appeals, this court must” adjudge the Commission “directive” of February 3, the main portion on the merits of the case, is on dissolved.

It is this order of February 12, issued under compulsion of the Court of Civil Appeals, which is the subject of the direct appeal, not the judgment of Judge Roberts on February 3 holding invalid the Commission’s order. The appeal of the judgment of February 3, the main portion on the merits of the case, is on appeal in the Court of Civil Appeals and may reach this Court at a later date. We turn now to our jurisdiction on direct appeal from Judge Roberts’ order of February 12.

The jurisdiction of this Court on direct appeal is a limited one.¹ The amendment of 1940 to our constitution [2 Vernon’s. Ann. Const, of Texas 46] states that the Legislature shall have the power to provide for a direct appeal to this court from an order of any trial court granting or denying an interlocutory or permanent injunction “on the grounds” of the constitutionality or unconstitutionality of any statute or the validity or invalidity or any administrative order issued by any state agency under any statute of this State.

Pursuant to the constitutional amendment, the Legislature enacted Article 1738a authorizing a direct appeal from an order of a trial court granting or denying an injunction, as applicable' here, “on the ground of the validity or invalidity of any administrative order” issued by any state board under any statute of this State.²

Our jurisdiction on direct appeal is therefore dependent upon and limited to the wording of the constitutional amendment and Article 1738a.

The Commission argues that we have no jurisdiction for two reasons:

1. Both the constitution and the statute require “an administrative order,” issued under a statute, by a State agency. It contends that the real [and only] orders in litigation are those of the Commission of December 15 and 30 depriving the Gardner well of its discovery status and putting it in the common Palacios reservoir, and that the validity of these orders are presently on appeal in the Court of Civil Appeals. The Commission’s position is that the letter and telegram of February 8 are not commission orders issued under a statute within the meaning of the constitution and Article 1738a but are simply directives issued pursuant to the main orders of December 15 and 30 and the superseding of Judge Roberts’ judgment of February 3. Because of our holding below, we need not decide this point.

2. Both the constitution and statute require that the granting or denial of the injunctive relief be “on the ground of the constitutionality or unconstitutionality of any statute of this state or [on the grounds of] the validity or invalidity of any administrative order” of a State board.

What is the true ground of Judge Roberts’ order of February 12? Is it that Judge Roberts believed that the Commission was right and that its orders of December 15 and 30 should be kept in force pending appeal, — after he had held them void ab initio, illegal, arbitrary and capricious? Or was the ground of his order the writ of prohibition of the Court of Civil Appeals commanding him to enter it? We think it is inescapable that it was the latter. The order itself recites that Judge Roberts entered it because he “must.”

There are no cases expressly construing the words “on the grounds of” in the constitution and statute. But this Court has declined jurisdiction in at least two cases in which the words have had a bearing. In Lipscomb v. Flaherty (1954), 153 Texas 151, 264 S.W. 2d 691, the plaintiff sought to bring a direct appeal from a judgment which he regarded as blacklisting him as a bail bondsman. He attacked the constitutionality of a statute, Article 277 Sec. 7 of the Code of Criminal Procedure. But the judgment was not based on the ground of the validity or invalidity of the statute upon the ground of the sustaining of a plea in abatement that the matter was res judicata. This Court held it had no jurisdiction.

Similarly, in Corona v. Garrison (1955), 154 Texas 124, 274 S.W. 2d 541, Corona attempted to bring a direct appeal from a judgment denying an injunction to halt proceedings by the Department of Public Safety to have him declared an habitual violator of traffic laws. This Court’s opinion says, “Appellant [Corona] seeks to sustain his direct appeal here on the ground that he questions the constitutionality of Section 22, Article 6687b, V.A.C.S.” (Emphasis added here). This Court determined, however, that the injunction was denied, not on the ground of the validity of the statute, but on the ground that the defendant had suffered no injuries and had an adequate remedy at law. It was held that this Court had no jurisdiction.

It clearly appears to us that the order of Judge Roberts of February 12 was not based upon the ground of the validity or invalidity of an admintsrative order issued pursuant to a statute of this State or upon the grounds of the constitutionality or unconstitutionality of a statute, but was, in fact, issued on the ground of the writ of prohibition of the Court of Civil Appeals. This Court does not, therefore, have jurisdiction. Since we are without jurisdiction of the appeal, we cannot grant the ancillary relief prayed for by Gardner incident to his direct appeal. The appeal is dismissed for want of jurisdiction.

Opinion delivered March 23, 1960.

1 . —Thus, this Court has held it has no jurisdiction where the administrative order was not promulgated by an administrative body having state-wide jurisdiction, Bryson v. High Plains Underground Water Con. Dist., 156 Texas 405, 297 S.W. 2d 117; where the injunction appealed from is really a mandamus rather than an injunction, Boston v. Garrison, 152 Texas 253, 256 S.W. 2d 67; and where the order-appealed from is not an order of an administrative body of the State but was one from a city zoning board acting under a city ordinance, McGraw v. Teichman, 147 Texas 142, 214 S.W. 2d 282.

2 . —The statute further authorized this Court to prescribe the necessary rules of procedure for such direct appeals. This the Court did in promulgating Rule 499a. Emphasis throughout this opinion is ours.