Honorable Bill T. Swanson                Opinion No. M-821
Chairman
Oil, Gas and Mining Committee            Re:   Constitutionality of
House of Representatives                       H.B. 772, 62nd Leg.,
Austin, Texas                                  R.S., 1971.

Dear Representative Swanson:

     You have requested the opinion of this office a6 to
the constitutionality of House Bill No. 772, 62nd Legis-
lature, Regular Session, 1971, introduced by Representative
E. L. Short of Lynn County, which bill is presently being
considered by the Oil, Gas and Mining Committee of which
you are Chairman.

     Pertinent portions of said bill are set out as follows:

           .   .   .

               "Section 2. A failure of a person
           other than an owner of the surface to
           render or pay taxes on his fee estate
           in minerals for a period of 20 years,
           or to sell, lease, mortgage, or transfer
           his fee estate in minerals for a period
           of 20 years by instrument recorded in
           the deed records of the county in which
           the fee estate in minerals is located
           with the intention of voluntarily and
           permanently relinquishing all use, claim,
           or title in the fee estate constitutes
           an abandonment of the fee estate in
           the absence of a valid leasehold estate
           any time during the 20-year period or
           exploration for or production of minerals
           during the 20-year period from the land
           or from land covered by a lease to which
           the fee estate is subject."

               "Section 3. Upon abandonment, a
           one-half undivided interest in the fee

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          estate in minerals referred to in this
          Act vests in the state and the remaining
          one-half undivided interest vests in the
          owner or owners of the surface estate,
          with each owner taking the same share
          and the same type of ownership which
          he has to the surface estate."

           .   .   *

              "Section 5. An owner of the surface
          estate may file a petition for declara-
          tory judgment in the district court of
          the county in which the fee estate is
          located, requesting the court to declare
          the fee estate in minerals abandoned.
          In an action for declaratory judgment
          under this Act, citation shall be issued
          and served in accordance with the Rules
          of Civil Procedure.*

              "Section 6. Evidence of a failure
          to render or pay taxes on the fee estate
          in minerals for a period of 20 years
          and to sell, lease, mortgage, or trans-
          fer the fee estate in minerals for a
          period of 20 years by instrument recorded
          in the deed records of the county in
          which the fee estate is located is
          sufficient to constitute a prima facie
          case for the petitioner in a suit for
          declaratory judgment in the absence
          of: . . . . .ll

     The elements of an abandonment are stated in 1 Texas
Jurisprudence 2d 3, Abandonment, Section 2 to be:  (1)
intention to abandon, and (2) an actual relinquishment.
It is essential to an abandonment that there be a concur-
rence of these elements. Worsham vs. State, 56 Crim. Rep. 253,
120 S.W. 439.

     The following quotation from Corpus Juris Secundum,
Volume 1, page 16,Abandonment, Section 7, summarizes general-
ly the law on the subject and the statements therein contain-
ed are supported by Texas cases, to-wit:


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Honorable Bill T. Swanson, page 3           (M-821)



                  "Nonuser of a right or property, or
           absence from land, or the lapse of time,
           while not of itself constituting an
           abandonment, may, when connected with
           other acts or circumstances, be evidence
           thereof, especially where it continues
           for such length of time as apparently
           not to be consistent with any other
           hypothesis, although even then it is
           not conclusive, but may be contradicted
           and overcome by other evidence, but the
           weight and effect to be given to such
           evidence depends on the circumstances
           and the intention of' the alleged abandon-
           ing owner, and mere absence   lapse of
           time, or nonuser is not of itself any
           evidence of abandonment unless, it has
           been held, it continues for the statu-
           tory period of limitations of actions
           to recover the right or property in
           which case there is said to arise there-
           from a disputable presumption of intention
           to abandon-- . . . . ."

                  "Evidence of the nonpayment of
           taxes is not, alone, sufficient to prove
           an abandonment, but nonpayment of taxes
           may be evidence of abandonment where
            coupled with other facts or circum-
           stances showing an intention to abandon."

     Section 2 of House Bill 772, above quoted, does not
declare the itemized acts of nonfeasance to be prima facie
evidence of either intention to abandon or of actual relin-
quishment.   On the contrary, said Section 2 would provide
for automatic abandonment, except, for the question of the
one element:   intent to abandon, which is worded as "inten-
tion of voluntarily and permanently relinquishing all use,
claim, or title in the fee estate."   In effect, such section
would provide that the existence of such listed acts of
nonfeasance, automatically and without notice, hearing
or court action, determines the element of "actual relin-
quishment."

        It is the opinion of this office that such automatic


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Honorable Bill T. Swanson, page 4        (M-821)



determination of this element of abandonment would work
a deprivation of property without "due course of the law
of the land" in violation of Article 1, Section 19 of the
Constitution of Texas as well as the Fourteenth Amendment
to the United States Constitution; and for such reason
Section 2 of such Act would be unconstitutional.

     It would appear, however, that without Section 2 the
bill would still have active provisions which need further
consideration.

     The Courts of Texas have recognized that property
rights in land may be abandoned:

               "It is held that one may 'except in
         the case of a perfect legal title to a
         corporeal heriditament, ' abandon 'every
         right or interest in, title to, or owner-
         ship of property,' 1 C.J.9. . . or, stated
         otherwise, there is nothing in principle,
         to prevent the owner from abandoning his
         right of property in land, provided the
         intention to do so be evidenced by an
         act or deed legally sufficient to operate
         a divestiture of this title. Dikes vs.
         Miller, 24 Tex. 417." Carter vs. Smith,
         (Dallas Civ.App. 1916) 184 S.W. 244, 246.

     Section 5, quoted above, provides that a declaratory
judgment may be sought and provides that the rules appli-
cable to other cases would apply. This would call for notice,
hearing and court action, thus meeting the requirements of
due process.

     Section 6 provides that proof of certain acts of non-
feasance constitute prima facie evidence of the elements
of abandonment.  The creation by statute of a rebutable pre-
sumption of fact is not unconstitutional for lack of due
process.

     Insofar as the one-half interest vesting in the State
is concerned, a question might be raised as to possible
violation of Article 1, Section 17, Constitution of Texas,
and the Fifth Amendment to the United States Constitution.
Each of the above constitutional provisions prohibit the



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           Honorable Bill T. Swanson, page 5           (M-821)



           taking of a persons property by the state or for governmental
           purposes without adequate compensation.  It should be noted
           that under the bill, with Section 2 deleted, there would be
           no taking by the State until there was a court determination
           of abandonment, and therefore, if the person has abandoned
           the property it is no longer his and he need not be compen-
           sated therefor.

                Your request makes reference to no particular consti-
           tutional provisions which you may ,be questioning: therefore,
           no further provisions will be considered in this opinion.


                                   SUMMARY

                          Section 2 of H.B. 772, 62nd Legislature,
                     Regular Session, 1971, providing for
                     automatic determination of one element
                     of abandonment without notice, hearing
                     or court action, violates Article I,
                     Section 19 of the Texas Constitution
                     and the Fourteenth Amendment to the
                     United States Constitution.  The balance
                     of the Bill is not in violation thereof:
                     neither is it in violation of Article I,
                     Section 17 of the Texas Constitution
                     nor of the Fifth Amendment to the
                     United States Constitution.

                                             Yours very truly,

                                             CRAWFORD C. MARTIN
                                             Attorfley General of Texas


                                       BY

Prepared by:

Harold Kennedy, Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman


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Honorable Bill T. Swanson, page 6             (M-821)



W. E. Allen, Co-Chairman

Dyer Moore
Houghton Brownlee, Jr.
Linward Shivers
Rex H. White, Jr.

Meade F. Griffin, Staff Legal Assistant

Alfred Walker, Executive Assistant




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