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    Honorable   D. C. Greer                    Opinion   No.   C-682
    State Highway   Engineer
    Aus tin,    Texas                          Re:   Applicability     of Article 827a-6,
                                                     V.P.C.,     to question presented;
    Dear    Mr.   Greer:                             supplementing       Opinion No. C-613.

             Since the release    of our    Opinion No. C-613 on February              17, 1966,
    there has been a question      raised     whether    the State HighwayDepartment
    may, in its discretion,    pursuant      to Article    827a-6, under a permit
    granted   to an owner and operator         of overweight     specially     equipped mobile
    equipment    transporting   frac oil    in servicing     oil wells,    allow such a frac-
    ing truck the right to transport        crude oil from wells which are not con-
    nected to a pipeline.

              In order to avoid further    confusion  on this point,       we are    issuing
    this letter   as a supplement   toopinion    No. C-613.

             In Opinion No. C-613 (1966), we previously          held that the State
    Highway     Department   had the discretion     to grant the owner and operator
    of specially   equipped    overweightmobile      equipmentwhich     transports   frac
    oil in servicing    oil wells apermit     for the movement     of such equipment
    under Article     827a-6, V.A.P.C.

              This statute was designed      to authorize      the Highway Department          to
    grant to owners and operators         of such machinery        a.nd equipment      a permit
    to use the roads and highways        of the state under the conditions           specified
    where    used primarily     for the purposes     of servicing,     cleaning   out, or
    drilling   oil wells.   The statute does not expressly         nor impliedly      restrict
    such business      purposes to those oil wells connected          to a pipeline.     As a
    new regulatory       and remedial   act, Article    827a-6, V.A.P.C.,       must be given




              The servicing  of oil wells, whether  or not connected   to pipelines,
    necessarily   and impliedly    includes those activities performed    to or about
    the well which are incident to its needs and operation.       The removal      of
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Honorable     D. C. Greer,      page   2 (C-682)




production     from the well is essential            to the operation      of that well.    Many
wells are required          to produce      continually     or will die, in which latter case
extensive     costly reworking          operations     often become mandatory.           After
completion       operations,      the production      may be turned into a tank battery
for temporary         storage.      The tank must be emptiedfrom              time to time, and
the removal       of production       in the absence       of a pipeline   may become an
absolutely     essential      element     in the production       of an oil well and the
servicing     thereof     on the lease where operated.             A necessary     part of the
primary      business of oil well servicing            is the removal      and transportation
off the lease of the oil for marketing.                Our courts,     even in the absence        of
an express       obligation,     will imply a covenant on the part of the leasee               to
transport     and market the oil produced,              for the breach of which the remedies
of liability    in damages        or termination      of the lease may become available.
See Summers,          Oil and Gas, Section 400, page 582; Williams                 and Meyers,
Oil and Gas Law, Section 853, page 388.

          It appears   to be well established    that the backbaul of projects        or
properties     performed    incident to the primary     business     purpose   or enter-
prise   of the owner and operator       will be necessarily      implied  or authorized
in the regulation     of transportation    and movement      of vehicles   across   the
highways     of our country.     Red Ball Motor Freight,       Inc., v. Shannon, 84
S.Ct. 1260, 377 U.S. 311 (1964); Brocks         Transp.     Co. v. U.S., 93 F.Supp.
517, affirmed      71 S.Ct. 501, 340 U.S. 925 (1951).

           It is the opinion of this office that the Sta.teHighway          Department
may, in its discretion,        pursuant to Article     827a-6, V.A.P.C.,       under its
permit     granted to anowner       and operator     of overweight     mobile   equipment
transporting       frac oil in servicing    oil wells as described       in Opinion No.
C-613, allow such specially          equipped fracing     trucks the right to transport
crude oil from wells which are not connected               to a pipeline;   provided,
however,       there is a compliance     with the conditions     required     by the Highway
Commission         and the payment of the fees established         by it or required     for
registration       under Article   6675a.    As noted in our Opinion No. C-613,
supra, the Highway Department             has the sole discretion,      in determining
whether      to issue the permit,     to pass upon whether      the movement       may be
made without material          damage to the highway, whether          it would work a
serious     inconvenience     to highway    traffic,  and whether     the vehicle   is
properly      registered.

         We are aware that we have placed a liberal        construction    upon this
statute.   We believe  that our conclusions    were the intent of the Legislature
in enacting  this remedial    statute.  If our opinion is not the conclusion      in-
tended by the Legislature,      such statute can certainly    be amended in the
next session   of the Legislature.     We feel that the discretion     of the Highway

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    Honorable       D. C. Greer,   page   3 (C-682)




    Commission     in granting   or denying      permits   affords   ample     safeguards    for
    the protection   of the State Highway        System.

                                                           Yours     very   truly,

                                                           WAGGONER     CAR R
                                                           Attorney General of Texas




                                                           By:
                                                                   KERNS B. TAYLOR
                                                                   Assistant Attorney       General

    KBT:da

    APPROVED      FOR THE ATTORNEY               GENERAL
    By:   T. B. Wright
          Executive  Assistant

    cc:   Colonel     Homer   Garrison




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