Untitled Texas Attorney General Opinion ( 1968 )

EXAS
AUSTIN. TEXAS 78711
CRAWFORD c. MARTIN
AlTORNEY OENEEAI-
July 16, 1968
Honorable Howard B. Boswell Opinion No. M-259
Executive Director
Texas Water Development Board Re: Whether surety bond re-
P. 0. BOX 12386 quired by The Texas
Capitol Station Water Well Drillers Act,
Austin, Texas 78711 Article 762le, Section
16, V.C.S. covers faulty
workmanship, labor and
materials, and/or neg-
Dear Mr. Boswell: llgence.
In your recent request for opinion of this office,
you stated that a question has arisen as to the effect and
value of the bonding provisions contained in Article 762le,
Vernon's Civil Statutes, Section 16 ('IheTexas Water Well
Drillers Act) which requires the maintenance of a $2,000
surety bond as a condition for obtaining a Water Well Drlll-
ers certificate; and specifically you question whether, in
the absence of express statutory language, these provisions
may be relied upon by the Water Development Board to require
that the bond cover a Judgment obtained against the driller
for damages caused by 'faulty workmanship, labor and mater-
ials, and/or negligence".
You have also enclosed a copy of the bond form Sup-
plied by the Texas Water Development Board to each applicant
for registration, and you ask whether the bond does In fact
provide such coverage.
Said Section 16 of Article 762le provides, in part,
as follows:
11..,.before a registration certificate
shall be issued, a bond executed by
the applicant, as principal, and a
surety company authorized to do busi-
ness in this state as surety, shall
be furnished the Commission in the
principal sum of $2,000.00 for the
use and benefit of any injured party
-1253-
Hon. Howard B. B-well, page 2 (M-259)
and conditioned that the applicant will
pay any judgment recovered by any per-
son In any suit for damages or inJury
caused by a violation of the Act."
(Emphasis Added)
There are various prohibitlone contained in different
parts of Article 7621e, but at no place does such Article
provide, by outright prohibition or by necessary Inference,
that "faulty workmanship, labor and materials, and/or negll-
gence", as such, shall constitute a violation of the Act.
Section 7 of Article 7621e directs the Water Develop-
ment Board to promulgate and adopt substantive rules defin-
ing standards of conduct governing registered water well
drillers. In setting out grounds for revocation or suspen-
sion of a drillers certificate, Section 8(a) of Article 762le,
provides as follows:
'The certificate of registration of any
registered water well driller who vio-
lates any provision of this Act or any
substantive rule or regulation of the
Board promulgated under the authority
of this Act may be revoked or suspended
by the Board. Grounds for revocation or
suspension of a driller's certificate
shall include intentional misstatement
or misrepresentation of fact on an appli-
cation or well log; failure to keep and
transmit water well logs as provided
herein; failure to advise a person for
whom a well is being drilled that in-
jurious water has been encountered, is
a pollution hazard, and must be forth-
with plugged In an acceptable manner;
or being found to be an incompetent
water well driller."
We are advised that none of the rules and regulations
adopted by the Board specifically prohibit "faulty workman-
ship, labor and materials, and/or negligence".
The bond form furnished each applicant substantially
follows the language of Section 16, Article 7621e, but is
- 1254-
Hon. Howard B. Ekoswell,page 3(M-259)
somewhat broader in scope in that it Includes the following
language:
....for the use and benefit of any in-
jured party who shall recover a judg-
ment for damages from violation by the
Principal herein of any provision of
Chapter 264 . . ..Art. 7621e, or the rules,
regulations, and modes of procedure
rescribed thereunder by the Water Well
illers Board." (Emphasis Added),
In Texas, a contract of suretyship is required to be
strictly construed so that only those burdens or obligations
that clearly come within the terms of the contract will be
imposed on the surety, and the contract will not be extended
by im licatlon or presumption. Cooley v. Cash, 207 S.W.2d
436~ i?T
ex.Civ.App. 1947, no writ‘) Great American Insurance
Co. v. Langdeau, 379 S.W.2d 62 (Tix. Sup. 1964).
It is our opinion that the bond as it is presently
written does not purport to cover all judgments for damages
caused by "faulty workmanship, labzand materials and/or
negligence". We refrain from expressing an opinion upon a
bond voluntarily undertaken which specifically covers such
acts inasmuch as such extra-statutory provisions are a matter
of personal interest only to the litigants and the bonding
company. Nothing herein contained Is intended to imply non-
coverage of judgments for damages caused by failure of the
driller to do acts required of them, or by their doing acts
prohibited by the Act, even though done or not done by rea-
son of "faulty workmanship, labor and materials, and/or
negligence". For example, the failure through negligence of
the driller to Inform the landowner or person having a well
drilled that the water is injurious to vegetation, as is re-
quired of the driller by Section l;iaof Article 762le, would
constitute ~!a violation of the Act'; and if this violation
werefound by the trier of facts to be the proximate cause of
the damage, recovery on the bond for such damage would be
possible.
At this point the question arises as to whether the
Board may by rule specifically prohibit acts of "faulty work-
manship, labor and materials and/or negligence" and thereby
-1255-
Ron. Howard B. Boswell, Page 4(M-259)
make each such malfeasance or nonfeasance aa violation of this
Act", thus requiring bond coverage of judgments for damages
occasioned by such acts. The Board has the power to make sub-
stantive rules and regulations and to enforce them by suspen-
sion or revocation of the certificate of registration, but it
has no authority to require coverage of that which the statute
does not require be covered. Under the statute, the Texas
Water Development Board may require such bond cover wany judg-
ment recovered by any person in any suit for damages or in-
jury caused by a violation of this Act" only, and it is with-
out authority to require such extra-statutory bond provisions
of the principal and surety. The board may exercise only the
authority conferred upon It by the law in clear and unmistak-
able terms and It will not be deemed to have authority given
only by implication or Inference, since its powers must-be
strictly construed. Commercial Standard Ins. Co. v. Board of
Ins. Commissioners, 34 S W.2d 343 (Tex.Civ.App. 1930, error
ref.) and authorities therein cited.
SUMMARY
In the absence of express statutory
authority a successful plaintiff
could not recover for faulty work-
manship, labor and materials, and/or
negligence under the surety bond re-
quired by Article 762le, Section 16,
Vernon's Civil Statutes (The Texas
Water Well Drillers Actj.
RD C. MARTIN
ey General of Texas
-1256-
Hon. Howard B. &swell, page 5(&259)
Prepared by Charles F. Aycock
Assistant Attorney General
APPROVED
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
John Fainter
John Grace
Harold Kennedy
R. D. Green
A. J. CARUBBI, JR.
Executive Assistant
-1257-