                                    NO. 07-07-0343-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                    JANUARY 23, 2008

                           ______________________________


    STATE OF TEXAS AND RAILROAD COMMISSION OF TEXAS, APPELLANTS

                                              V.

                            STEVEN LYNN HALE, APPELLEE

                        _________________________________

             FROM THE 31ST DISTRICT COURT OF ROBERTS COUNTY;

                NO. 1948; HONORABLE STEVEN R. EMMERT, JUDGE

                          _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellants, State of Texas and Railroad Commission of Texas (hereinafter

collectively the “Commission”), appeal from an order granting a temporary injunction in

favor of Appellee, Steven Lynn Hale, and a separate order denying their plea to the

jurisdiction of the trial court. By two issues, the Commission contends (1) the trial court

erred in denying its plea to the jurisdiction, and (2) in granting the temporary injunction. We
dissolve the temporary injunction, reverse the order denying the plea to the jurisdiction, and

render judgment granting the plea to the jurisdiction.


                                       Background


       Hale owns an eight thousand (8,000) acre ranch in Roberts County. Kim Flowers

owns a ranch directly south of the Hale ranch. The Commission intends to perform an

environmental remediation project to clean up a saltwater disposal pit at an abandoned gas

well site on the Flowers ranch. The project will involve the removal and replacement of

approximately three thousand eight hundred (3,800) cubic yards of contaminated soil. Soil

removal will require heavy-duty dump trucks to make over six hundred (600) trips across

a road on Hale’s property.


       The Commission informed Hale that pursuant to its authority granted pursuant to

§ 91.113(c) of the Texas Natural Resources Code Annotated (Vernon 2001),1 the

Commission’s employees or agents were authorized to enter Hale’s property for the

purpose of conducting the cleanup operation on the Flowers ranch. Section 91.113(c)

states as follows:


       The commission or its employees or agents, on proper identification, may
       enter the land of another for the purpose of conducting a site investigation
       or environmental assessment or controlling or cleaning up oil and gas wastes
       or other substances or materials under this section.



       1
       All section references herein are references to the Tex. Nat. Res. Code Ann.
(Vernon 2001) unless otherwise expressly designated.

                                              2
       On June 22, 2007, Hale filed the underlying declaratory judgment action contending

the Commission was improperly applying § 91.113(c) to gain entry onto his property, or,

alternatively, the statutory provision is unconstitutional because it violates the Due Process

Clauses of the Texas and United States Constitutions.            Hale sought a temporary

restraining order, temporary injunction, declaratory judgment, permanent injunctive relief

and attorney fees. The lower court issued an ex parte temporary restraining order

preventing the Commission from utilizing the road on Hale’s ranch for the remediation

project. Following a hearing, the trial court issued a temporary injunction enjoining the

Commission from utilizing the road on Hale’s ranch for the remediation project and denied

the Commission’s motion to transfer venue and its plea to the jurisdiction.


                                        Discussion


       At the outset, this Court is obligated to determine, sua sponte, issues affecting our

jurisdiction over an appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677,

679 (Tex. 1990). As a general rule, a judgment must be final before it can be appealed.

Lehmann v. Har-Con Corp. 39 S.W.3d 191, 195 (Tex 2001). A judgment is not final for

purposes of appeal unless it disposes of all parties and issues. North E. Indep. School

Dist. v. Aldridge 400 S.W.2d 893, 895 (Tex. 1966).          There are, however, statutory

exceptions permitting interlocutory appeals. See, e.g., Tex. Civ. Prac. & Rem. Code §

51.014(a)(8) (Vernon Supp. 2007) (allowing interlocutory appeal of denial of a plea to the

jurisdiction by a governmental unit). Because this appeal pertains to the denial of a plea



                                              3
to the jurisdiction filed by the State of Texas and the Railroad Commission of Texas, this

Court has jurisdiction to hear this appeal.


       § 85.241 (Vernon 2001) states as follows:


       [a]ny interested person who is affected by the conservation laws of this state
       or orders of the commission relating to oil and gas and the waste of oil or
       gas, and who is dissatisfied with any of these laws or orders, may file suit
       against the commission or its members in a court of competent jurisdiction
       in Travis County to test the validity of the law or order.


       A suit to test the validity of an oil and gas conservation law or order is required to

be filed in a court of competent jurisdiction in Travis County. This statute is jurisdictional,

and not a venue statute. Ex parte Lee, 127 Tex. 256, 93 S.W.2d 720, 723 (1936); Alpha

Petroleum Co. v. Terrill, 122 Tex. 257, 59 S.W.2d 364, 367-68 (1933); Terrell v.

Community Natural Gas Co., 117 S.W.2d 838, 843 (Tex.Civ.App.–Dallas 1938, writ

dism’d). The jurisdiction of a competent court in Travis County is exclusive. State v.

Novall, Inc., 770 S.W.2d 589, 590 (Tex.App.–Austin 1989, writ denied); Humble Oil &

Refining Co. v. Railroad Commission of Texas, 85 S.W.2d 351, 352 (Tex.Civ.App.–Austin

1935, no writ). This is true for declaratory judgment actions testing a conservation law or

Commission order.       Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340, 345-46

(Tex.Civ.App.–Amarillo 1967, writ ref. n.r.e.). Moreover, when a court of competent

jurisdiction in Travis County acquires jurisdiction, it may do whatever is necessary for a

final determination of the issues involved, 56 Tex. Jur. 3d Oil and Gas § 641 (2004);




                                              4
Humble Oil, 85 S.W.2d at 352-53, including ancillary relief by way of injunction. Lee, 93

S.W.2d at 723.


        Hale’s petition indicates he is, or will be, “affected” by the Commission’s proposed

action and conservation laws related to the cleanup on the Flowers ranch.                 He is

“dissatisfied” with the applicable conservation laws and Commission orders, and by his suit

seeks to “test the validity of the law(s) or order(s).” As such, Hale’s action is plainly subject

to the jurisdictional strictures of § 85.241, and may only be heard by a court of competent

jurisdiction in Travis County.


                                         Conclusion


        Issues one and two are sustained.           Because the court below was without

jurisdiction, the temporary injunction is dissolved, the order of the trial court denying the

Commission’s plea to the jurisdiction is reversed and judgment is rendered granting that

plea.




                                                    Patrick A. Pirtle
                                                        Justice




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