Untitled Texas Attorney General Opinion ( 1968 )


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  •                                       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-
    

Document Info

Docket Number: M-259

Judges: Crawford Martin

Filed Date: 7/2/1968

Precedential Status: Precedential

Modified Date: 2/18/2017