Harrington v. State

363 S.W.2d 321, 1962 Tex. App. LEXIS 2032

• Court: Court of Appeals of Texas
• Decided: December 19, 1962
• Docket: 11059
• Status: Published

Opinions

HUGHES, Justice.

This appeal is from an order overruling the pleas of privilege filed by Harry Harrington, Jr., Reed H. Allgood, residents of Gregg County, and J. W. Baton, resident of Rusk County, in a suit filed by the State of Texas to recover penalties allegedly due the State for allegedly violating the laws of Texas and the rules and regulations of the Railroad Commission of Texas in drilling, producing and plugging oil wells in Gregg County, Texas.

The State controverted these pleas of privilege by filing affidavits, all similar, from which we quote their substance:

“Plaintiff denies, and here avers to- be untrue and false the following allegation of Defendant contained in such plea of privilege:

“ ‘No exception to exclusive venue in the county of one’s residence, provided by law, exists in said cause.’

“As is shown on the face of Plaintiff’s Original Petition, this suit is a civil penalty suit brought under the provisions of the oil and gas conservation laws of this State, and particularly, pursuant to provisions contained in Article 6036, Vernon’s Civil Statutes. Article 6036 provides that such civil penalties are:

‘to be recovered in any court of competent 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, * * ”

The only evi.dence introduced on the venue hearing was the' State’s Original Petition, which was unamended, and the controverting affidavits.

The position of the State is that this suit being brought under the provisions of Art. 6036, V.A.C.S., which prescribes venue of the actions it authorizes, the venue of this suit lies in Travis County as a matter of law which is determinable solely from the allegations of its petition.

It is the position of appellants that the State was required to plead in its controverting affidavits and to prove on the venue hearing that appellants had violated Art. 6036 in order to establish venue in Travis County.

The solution to the problem presented lies in a proper construction of Art. 6036, the pertinent provisions of which we quote:

“Art. 6036. Penalty

“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 Commission for contempt for the violation of its rules, regulations, or orders, any person violating any of the provisions of this Act or of Title 102, Revised Civil Statutes of Texas, 1925, as amended, or violating any rule, regulation, or order of the Commission promulgated thereunder, shall be subject to a penalty of not more than One Thousand Dollars ($1000) for each and every day of such violation, and for each and every act of such violation, to be recovered in any Court of competent 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 district attorney where such suit is brought.”

Since this suit was filed in Travis County, the only portion of the statute actually to be construed is the following:

“ * * * any person violating any of the provisions” of the statute or rule “shall be subject to a penalty * * * to be recovered in any Court of competent jurisdiction in Travis County * * *«

The only manner in which a penalty may be recovered in any court is by suit. We, therefore, interpolate the words “by suit” into this statute so that it reads, in substance, that any person violating any provision of the statute or rules shall be subject to a penalty to be recovered by suit in any court of competent jurisdiction in Travis County.

Clearly, this interpolation is justified since the statute refers to “such suit”, being instituted by direction of the Railroad Commission and directs its prosecution by the Attorney General or the county or district attorney “where such suit is brought.”

The statute being thus interpreted, it is our opinion that as to any suit filed under it in-Travis County venue is determinable solely from the allegations of the petition, filed by the State.

Of course, it is not to be inferred from this conclusion that penalties can be assessed against any one who has not been adjudged guilty of violating the statute or rules. The venue of such suit, however, as to Travis County is not dependent, under the statute, upon proof of any extraneous fact. The statute plainly gives to the proper court of Travis County venue of suits brought under it. Whether or not this is such a suit is proved or disproved by an examination of the State’s Petition. Perfecto Gas Co. v. State, 228 S.W.2d 918, Austin Civil Appeals. Appellants do not contend that this is not such a suit.

Cases which we believe support our decision are Oil and Products of Oil in Certain Pits in Gregg County v. State, 118 S.W.2d 618, Austin Civil Appeals, and Heard v. State, 149 S.W.2d 237, Beaumont Civil Appeals.

In the Certain Pits case suit was brought by the State in Travis County under this portion of Art. 6066a, Sec. 10(b):

“When the Attorney General is advised from any source of the presence and existence of unlawful oil and/or unlawful products it shall be his duty to institute a suit in rem against such unlawful oil and/or unlawful product and against all persons owning, claiming or in possession thereof, such suit to be brought in the name of the State of Texas in any court of competent jurisdiction in Travis County or in the county in which such oil or product is located.”

A plea of privilege was filed by a defendant and controverted by the State on the venue hearing only the State’s Petition was offered in evidence. The Court in sustaining an order overruling the plea of privilege, held:

“Under the undisputed facts and circumstances of the instant case therefore, the provisions of the statute above cited, and the State’s pleadings in this cause, no issue of fact was presented and none necessary to he proved. The issue as to whether the suit was properly laid in Travis County was consequently a matter of law for the trial court to determine, * *

In Heard v. State, the State brought suit in Travis County under Art. 5420, V.A.C.S., which at that time (prior to 1939) read as follows:

“When any public lands are held, occupied or claimed by any person, association or corporation adversely to the State, or to any fund, or when lands are forfeited to the State for any cause, the Attorney General shall institute suit therefor, together for rent thereon, and for any damages thereto. For the purposes of this and the preceding article, venue is fixed in Travis County, concurrently with the county of defendant’s residence and the county where the land lies.”

A plea of privilege was filed by the defendant which was overruled, even though no controverting affidavit was filed. In approving this action the Court held:

“Venue of suits under Art. 5420, as it existed prior to the amendment, is to be determined by the character of the action as disclosed by the allegations of the petition. The petition being sufficient on its face to show that the suit is for the recovery of public lands or lands belonging to any fund of the State fixes the venue in Travis County.”

If in these two cases, under the statutes there involved, it was unnecessary to plead or prove any fact other than the nature of the suit as disclosed by the petition, then in this case the necessity for other pleading or proof is obviously not required.

The words “any person violating” in Art. 6036 merely furnish the occasion which authorizes the penalty suit, just as the “existence of unlawful oil” in Art. 6066a, Sec. 10(b), and the situation, “[wjhen any public lands are held, occupied or claimed by any person”, 'as used in old Art. 5420, furnish the occásions for the suits authorized by the respective statutes. The venue of such suits are, however, not dependent upon proof of the existence of facts which furnished the occasion for the suits.

By way of argument, we also note that Art. 6036 plainly provides that venue may be in the county where “the violation is alleged to have occurred.” Since allegations are only found in pleadings, they, and they alone, are the source of proof necessary to sustain venue.

As we read this statute, it also plainly provides that suit for penalties under it may be brought in any county where any defendant resides, without the necessity of pleading or proving on the venue hearing violation of the statutes or rules.

Our construction of the statute is to make uniform the application of the statute to the three venue situations it describes.

Appellants filed a motion to strike the controverting affidavits filed by the State on these grounds:

“Said instrument does not constitute a controverting plea within the meaning of Rule 86, Texas Rules of Civil Procedure, in that same in no way controverts the Plea of Privilege filed by this Defendant or sets out; specifically or otherwise, the grounds relied upon to confer venue of such cause on this Court.

“II.

“In such instrument the Plaintiff does not set out which exception to Article 1995 it relies upon to confer venue on this Court. Neither does Plaintiff allege in such instrument any cause of action and Plaintiff wholly fails to bring its case within any applicable statutes authorizing such suit.

“HI.

“In sum and substance, Plaintiff has filed only an instrument which quotes a portion of a statute and tells the Court that ‘This suit is a civil penalty suit.’ Since this proceeding is of a penal nature, the facts constituting the offense must be averred with the same certainty as would be required in a bill of indictment.

“IV.

“Plaintiff’s instrument is definitely not a controverting plea and cannot be made so by merely placing such title on it. Plaintiff has failed to file a controverting plea within ten (10) days after receipt of Defendant’s plea of privilege, and therefore, Defendant is entitled to an order sustaining his plea of privilege.”

This motion, in our opinion, was properly overruled by the Trial Court. If we are correct in our interpretation of the statute under which this suit was brought, the most that the State was required to allege in its controverting affidavit was the character and nature of suit which it had filed. It made these allegations, and was, in our opinion, entitled to prove such allegations by offering its petition in evidence.

Appellants here place strong reliance upon A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, and one of the principal authorities cited in it, Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, (1935).

The Blanton case was a libel suit and involved Sub. 29, Art. 1995, V.A.C.S. The Compton case involved Sub. 9 of such article, as it then read. Sub. 29 provides an exception to the general rule of venue in libel and slander suits. Sub. 9, provided an exception in suits based on crime and trespass. In neither of these instances was the nature or character of the suit, as disclosed by the petition, solely determinative of the issue of venue. Under those subdivisions additional facts were required to be alleged and proved. These cases are, therefore, not in point here.

' It is our opinion that the judgment of the Trial Court is correct and should be affirmed. If we are incorrect in this conclusion, then we would reverse and remand the case. We would not render judgment transferring it. Rules 434, 505, T.R.C.P., Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688, London Terrace, Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619, Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, Red Arrow Freight Lines v. Cagle, 206 S.W.2d 1019, Waco Civil Appeals.

The judgment of the Trial Court is affirmed.

Affirmed.