Untitled Texas Attorney General Opinion ( 1966 )

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Honorable D. C. Greer Opinion No. C-682
State Highway Engineer
Aus tin, Texas Re: Applicability of Article 827a-6,
V.P.C., to question presented;
Dear Mr. Greer: supplementing Opinion No. C-613.
Since the release of our Opinion No. C-613 on February 17, 1966,
there has been a question raised whether the State HighwayDepartment
may, in its discretion, pursuant to Article 827a-6, under a permit
granted to an owner and operator of overweight specially equipped mobile
equipment transporting frac oil in servicing oil wells, allow such a frac-
ing truck the right to transport crude oil from wells which are not con-
nected to a pipeline.
In order to avoid further confusion on this point, we are issuing
this letter as a supplement toopinion No. C-613.
In Opinion No. C-613 (1966), we previously held that the State
Highway Department had the discretion to grant the owner and operator
of specially equipped overweightmobile equipmentwhich transports frac
oil in servicing oil wells apermit for the movement of such equipment
under Article 827a-6, V.A.P.C.
This statute was designed to authorize the Highway Department to
grant to owners and operators of such machinery a.nd equipment a permit
to use the roads and highways of the state under the conditions specified
where used primarily for the purposes of servicing, cleaning out, or
drilling oil wells. The statute does not expressly nor impliedly restrict
such business purposes to those oil wells connected to a pipeline. As a
new regulatory and remedial act, Article 827a-6, V.A.P.C., must be given
The servicing of oil wells, whether or not connected to pipelines,
necessarily and impliedly includes those activities performed to or about
the well which are incident to its needs and operation. The removal of
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Honorable D. C. Greer, page 2 (C-682)
production from the well is essential to the operation of that well. Many
wells are required to produce continually or will die, in which latter case
extensive costly reworking operations often become mandatory. After
completion operations, the production may be turned into a tank battery
for temporary storage. The tank must be emptiedfrom time to time, and
the removal of production in the absence of a pipeline may become an
absolutely essential element in the production of an oil well and the
servicing thereof on the lease where operated. A necessary part of the
primary business of oil well servicing is the removal and transportation
off the lease of the oil for marketing. Our courts, even in the absence of
an express obligation, will imply a covenant on the part of the leasee to
transport and market the oil produced, for the breach of which the remedies
of liability in damages or termination of the lease may become available.
See Summers, Oil and Gas, Section 400, page 582; Williams and Meyers,
Oil and Gas Law, Section 853, page 388.
It appears to be well established that the backbaul of projects or
properties performed incident to the primary business purpose or enter-
prise of the owner and operator will be necessarily implied or authorized
in the regulation of transportation and movement of vehicles across the
highways of our country. Red Ball Motor Freight, Inc., v. Shannon, 84
S. Ct. 1260, 377 U.S. 311 (1964); Brocks Transp. Co. v. U.S., 93 F. Supp.
517, affirmed 71 S. Ct. 501, 340 U.S. 925 (1951).
It is the opinion of this office that the Sta.teHighway Department
may, in its discretion, pursuant to Article 827a-6, V.A.P.C., under its
permit granted to anowner and operator of overweight mobile equipment
transporting frac oil in servicing oil wells as described in Opinion No.
C-613, allow such specially equipped fracing trucks the right to transport
crude oil from wells which are not connected to a pipeline; provided,
however, there is a compliance with the conditions required by the Highway
Commission and the payment of the fees established by it or required for
registration under Article 6675a. As noted in our Opinion No. C-613,
supra, the Highway Department has the sole discretion, in determining
whether to issue the permit, to pass upon whether the movement may be
made without material damage to the highway, whether it would work a
serious inconvenience to highway traffic, and whether the vehicle is
properly registered.
We are aware that we have placed a liberal construction upon this
statute. We believe that our conclusions were the intent of the Legislature
in enacting this remedial statute. If our opinion is not the conclusion in-
tended by the Legislature, such statute can certainly be amended in the
next session of the Legislature. We feel that the discretion of the Highway
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Honorable D. C. Greer, page 3 (C-682)
Commission in granting or denying permits affords ample safeguards for
the protection of the State Highway System.
Yours very truly,
WAGGONER CAR R
Attorney General of Texas
By:
KERNS B. TAYLOR
Assistant Attorney General
KBT:da
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
Executive Assistant
cc: Colonel Homer Garrison
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