       r

                THEA                 NEYGENEIECAI.
                                 OF TEXAS




           Hon. Bascom Giles         OplnIon No. V-1477
           Commissioner
           General Land Office       Re: nPerlod of litigation”
           Austin, Texas                 of Sun 011 Comoanv. et
                                         al      Bumble Oil & Re-
                                         fSnkz Co ; et al, under
           Dear SW:                      Article   54211, V.C.S.
                      You have requested our opinion on the follow-
           lng question concerning certain State leases~ on lands
           in Laguna Madre which were recently   involved in liti-
           gation in Sun Oil Co,, et al v. Humble Oil & Refining
           Co., et ai.:
,---
                      “What Is the ‘period of lltigatlon’
                in said case within the meaning of Article
                54211, V.C.S., as amended by Section 1,
                Chafiter 406, Aats of the 52nd Legislature,
                19517 Tn other words, on what date did
                the litigation  begin and on what date did
                the litigation  end within the meaning of
                said statute?:
                      The above leases were issued to Sun Oil Com-
           pany on February 3, 1948.   On February 24, 1949, Sun
           filed a complaint In the ,federal district   cou?% In
           Houston against Mre. Elena S. Kenedy, Mrs. Sarlta K.
           East, and Humble, their mineral lessee,    who were as-
           serting a claim to the area covered by these leases.
           The State of Texas was allowed to intervene In the
           case on January 10, 1950.   On May 19, 1950, the
           trial court entered judgment for Sun and the State.
           On June 20, 1951, the Court of~‘Appeals reversed the
           action of the trial court in allowing the interven-
           tion of the State, and the judgment was modified so
           as not to be binding upon the State; otherwise,    the


,,-
Hon. Bascom Glles,      pa,ge 2 - v-1477


judgment was affirmed.      (190 F.2d 191, reh.den.     191 F.
2d 705.)
           On January 28, 1952, the Supreme Court of
the United States denied the petition     of the Kenedys
and Humble for a writ of certiorari    (342 U.S. ‘920),
and no petition  for rehearing was filed.     The Court of
Appeals forwarded the mandate to the federal district
court In Corpus Christi,   to.whlch the case had pre-
viously been transferred,   on February 1; 1952, and on
February 4, 1952, the mandate was received and filed
in that court.
             Article   54211, V.C.S.,   as amended In 1951,
provides :
             “The running of the primary term of
     any oil, gas, or mineral lease heretofore
     or hereafter     issued ‘by the Commissioner of
     the General Land Office,        which lease has
     been, is, or which may hereafter         become in-
     volved In litigation       relating   to the validity
     of such lease or to the au,thority of the Com-
     missioner of the General Land Office to lease
     the land covered thereby, shall be suspended,
     and all obligations      Imposed by such leases
     shall be set at ,rest during the period of
     such litigation.       After the rendition     of
     final judgment in any such litigation,          the
     running of the primary term of such leases
     shall commence again and continue for the
     remainder of the period specified         In such
     leases,    and all obligations      and duties lin-
     posed thereby shall again be operative          pro-
     vided such litigation       has been instituted     at
     least six (6)     monthsprior      to the expiration
     of the primary term of any such leases.            Pro-
     vided, further,      that the lessee shall pay
     all annual delay rentals and any royaltIes
     which accrue during the period of litiga-
     tion the same as during any other period of
     the extended primary term. Such rentals paid
     during the lltlgatlon       period shall be held in
     suspense and returned to the lessee in the
     event the State la unsuccessful         In any such,
     litigation.”
     c
         Hon. &scorn Qiles,      Page 3 - V-1477


                       We think it la clear that the “period of
         lltlgatlon”     under Article    54211 began to run on Feb-
         ruary    24, 1949, the date the complaint was filed with
         the court In the above case.         Rule 3 of the Fede,ral
         Rules of Civil Procedure provides that “A civil
         action Is commenced 'by filing       a complaint with the
         court.”      In accord with this Is Rule 22 of the Texas
         Rules of Civil Procedure, which provides that “A
         civil    suit In the district     or county court shall be
         commenced by a oetitlon       filed in the office  of the
         clerk.”      A Geaent statement of this rule 1s found
         in Southwestern      Life Co, v. Sannulnet, 231 S.W.2d 727,
         730-731 (Tex.Clv.App.l950),        where the court said:
                      “It has been repeatedly   held by our
                courts that the filing   of a petition    In a
                court of competent jurisdiction    with the
                bona fide intention   of the party’fillng    to
                prosecute same to a conclusion    Is the com-
                mencement of a civil          such as the one
                before us.
                      Other Texas cases recognlzin   this rule, are:
_-
           wers v. TernDIe Trust Co. 124 Tex. 4t 0, 78 S.W.2d 951
               ‘. Trlbby v. Wokee, 74 Tex. 142, 11 S.W. 1089
          1889 i Wichita CommonSchool Dlst. v. Dickens Indeaend-
         ent School Dlst.,    20b S.W.2d 882 (Tex.Clv.App.194
         error ref.);    Eppenauer v. Schrue, 121 S.W.2d 473 ‘?.ex.
         Civ.App.1938).

                     It Is our opinion that the litigation     In
         question did not end until February 12, 1952, which
         was the last day far filing    a petition   for rehearing in
         the above case under Rule 33-2 of the Rules of the
         Supreme Court of the United States.       Under this rule,
         petitioner8   had a right to file a petition    for rehear-
         ing within fifteen   days after the denial of the petl-
         tlon for certiorari,    and the denial of certiorari     was
         “qualified”   until that time expired.     R. Slmcson & Co.
         v. Commissioner of Internal Revenue, 321 U. S. 225 (1944).
                       As stated in United States   v. Claus,     5 F.R.D.
         278,   280   (E.D.N.Y.1946):
                                An appeal Is a proceeding
                In the’o$lnal       cause and a suit Is ‘pending’
Hon. Hascorn Giles,     page 4 - V-1477                               -.




     until the appeal is disposed of. Macken-
     zie v. Engelhard, 266 U.S.131, 45 S.Ct.
     68, 69 L.Ed.205, 36 A.L.R.416;     Ex parte
     Craig, 2 Clr.,1921,    274 F. 177; In re
     Carlisle   Packing Co., D.C.Wash., 1935,
     12 F. Supp. 11. That is 'pending' which
     has not been decided or finally     deter-
     mined.    31 Words & Phrases, Perm.Ed. 641,
     et seq.    A matter which is still   open to
     modification   on appeal must be deemed to
     be 'pending'.    National Popsicle Corp. v.
     Hughes, D.C.Cal.,   1940, 32 F.Supp.397.    . . ."
See also   Kissell    v. Creel,   83 F.Supp.     799, 801 (D.C.D.C.
1949).
           This is in line with Rule 506 of the Texas Rules
of Civil Procedure and the Texas cases.    Rule 506 pro-
vides that "The judgment of the Supreme Court shall be
final at the expiration   of fifteen days from the rendi-
tion thereof,  when no motion for rehearing has been
filed.
                                                                      -_
          An early statement of the rule in Texas is
found,in Texas Trunk Ry. v. Jackson, 85 Tex. 605, 608,
22 S.W. 1030, 1032 (1893), where the court, in an oPin-
ion by Chief Justice Stayton, said:
            t1
             . . . We are of opinion that appeal
     or writ of error, whether prosecuted under
     cost or supersedeas bond, during pendency,
     deprives a judgmentof    that fl,nality   of
     character necessary to entitle      it to ad-
     mission in evidence in support of the right
     or defense declared by it, and, from this
     necessarily   follows the insufficiency    of a
     plea in bar, based on it.    . . ;'
           In Waples-Platter    Grocer Co. v. Texas &P.RY.,
95 Tex. 486 489; 68 S.W. 265, 266 (1902)       the court
spoke of a 'final  judgment" ati being "a j;dgment not
merely final in the sense that an appeal lies therefrom,
but a judgment final in the sense that it has reached
that stage in judicial    procedure when it can neither
be set aside nor reversed upon appeal."
            Other Texas cases      recognizing     that   there is
Hon. Bascom Giles,    page 5 - V-1477




no final     judgment "so long as there is an appeal
          " bei    United North & South 011 Co.-;.      Mere-
%:??58        S W 550     ex.Clv.App.l923),   aff. 272 S.W.
mfTex.Co&n:App.                      owlty v. Fly 110 Tex.
613, 210 S.W. 505 (1919 ; Williams v. Whit;, 223 S.W.
2a 278 (Tex.Civ.App.1949,       error ref.);  Brown v. Lin-
              153 S.W.2d 342 (Tex.Civ.App.1941,    error ref.
m';;;tenF;;;              v. Capltol H~;e$hC,;.~o~9,".;,~dt
                         4 error ref.
Texas Re&&         CL., &' S.W.2d 528 (Tex.iv.App:1936T.
            Until the expiration     of the time for filing
the petltlon   for rehearing, in    the case in question,
the judgment below was subject       to being modified or
reversed by the Supreme Court       of the United States.
So long as this was possible,       the litigation   was still
pending within the meaning of       Article   54211.

                         SUMMARY
                   The "period of litigation"      referred
           to In Article     54211, V.C.S.,    began in Sun
           Oil Co., et al v. Humble Oil & Refinlnr
           Co., et al, with the filing       of the com-
           plalnt'in   the federal district      court
           and ended upon the expiration        of the
           time for filing     a petition   for rehearing
           in the Supreme Court of the United States,
           no petition    for rehearing having been
           filed.
                                   Yours very truly,
APPROVED:                             PRICE DANIEL
                                   Attorney General
C. Jacobson
Reviewing Assistant
Charles D. Mathews                 BY
First Assistant
                                                  Assistant
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