                                         rtmott


                                        In The

                               (tfourt of Appeals
                                       For The

               iTtrst Supreme Svtbtcvd Btstrtrt of ©exas


                                  NO. 01-87-00137-CV




                 VALERO TRANSMISSION COMPANY, APPELLANT

                                          V.


                 MITCHELL ENERGY CORPORATION, APPELLEE



                        On Appeal from the 295th District Court
                               of Harris County, Texas
                            Trial Court Cause No. 85-05219


                            OPINION ON REHEARING


            In its motion for rehearing, Valero Transmission Company urges the
same arguments as in its original appeal, but also contends that an order of the Texas
Railroad Commission, rendered after the temporary injunction was entered in this
case, requires that our opinion be withdrawn and the injunction dissolved.
            On original submission, we held that under the proper standard of
review, Valero had not carried its burden to show that the injunction was illegal or
required Valero to take gas in violation of Texas law. The temporary injunction
requires Valero to take from Mitchell Energy an amount of gas equal to the prorated
allowable set for Mitchell's wells by the Texas Railroad Commission. To prevent lease
loss, Valero must take an amount equal to one day's production from each well, but
again only if that amount does not exceed the well's prorated allowable. Thus, the
injunction's requirements are expressly tied to the legally allowed production quotas
set by the Texas Railroad Commission. Valero has not proven its defense of illegality.
             In a separate proceeding before the Texas Railroad Commission, Valero
apparently sought to have Mitchell's well allowables set at zero, and was successful.
Valero now contends that this result, and the Commission's order, vitiates our

interpretation of the Texas Natural Resources Code and Railroad Commission
regulations. Although some language in the Railroad Commission's order may appear
inconsistent with our own findings, Mitchell correctly points out that that order is not
properly before this Court. We are limited to the record made in the trial court. We
do not know what evidence the Railroad Commission considered or whether the issues

before it were identical to those before the trial court in the instant case.       We

therefore cannot say that the Railroad Commission's order is dispositive of the issues
in this appeal.
             Moreover, the temporary injunction is not inconsistent with the Railroad
Commission's order.    Again, the injunction's requirements are specifically defined
with reference to the allowables set by the Texas Railroad Commission. Thus, because
Mitchell's allowables are now set at zero, and the injunction requires Valero to take
only the amount of Mitchell's allowable, Valero is not currently required by the
injunction to take any gas under the contract.




                                          -2-
*r




                   The motion for rehearing is overruled.




                                                  /s/ Frank G. Evans
                                                  FRANK G. EVANS,
                                                  Chief Justice

     Justices Cohen and Hoyt also sitting.

     Publish. Tex. R. App. P. 90.

     Judgment Rendered and Opinion Delivered January 14, 1988.

     True Copy Attest:



      1(^CkJC£i~*l^^yyO \^^>Q-4
     Kathryn Coxt^
     Clerk of Court
