         THSATTORNEYGENERZAL
       .;         OF TEXAS


        \                      Ootobsr   13, 1947
        1

Hone ~BaSOcinGiles,        Chairman,      oplaion No,, v- 405
School Lend Board
Austin, Texas                             Re:   Constitutio&ility     oi
                                                Art. 921r, V;P.C.,    and
                                                related qusdtions aon-
                                                cqdng     Oily explora*
                                                tion work $n the mf
                                                of ,Mexioo*
      ..
Dear Sir!
        “-. ,‘The Board hab requested our opinion on aavswl
 quretiohs Loonoejming ‘geophysioal    expl.orations within the
~SCate’s bt-+nd+‘ise’ iii the ‘~G4.f of Mexico, as ~followsr
            “l*  Is Artiole 92&, V, Pm c, pr@ibit-
     ~lng ‘the     02 dynatiits and explosives
                  use                            -in tha
     waters 0i the St&&a, a’pplicable    tQ tha,~Qulf ’ .‘I ’
     of Idexioo, and 3.f~so, la th6 lrtatuta oonstl-.. ~.. :
     ~Dutlonal?      ~        .
            “2, Doss the Land Commissioner ol! ~tbe ’
      school Lana .Board 4~8 ‘authority to make ~. “~; 7
     ,rulea, -pertnit.ting anfl regulating geophysisal,    z_
      exploration    work ,on State lands wl~thin t-h& ‘2,’ in
     oulf   ~of-~yerlrol
                                                           ., *&, :
            "34 IS the State ‘&nti,tled t0 OOmp8n-   22.
     aation for the rlvllega    of geophyaloal   ex-
     ploration  of GuPt lands c~onduoted by those
     who do not ‘halve leases thereon?W
            Your ftrst. question obviously relates ‘to <the
aonatitutionality,     and applloabllity  of Artiole 924; V.P.C.,
to geophysloal     exploration   involving the has or dynrmltr
in the, waters of the Ouli ef Mexiaoo                        .’

            Artiole     924, V, P. C., is as follows:
           *It shall be unlawful for any person to
     pleas in any of the waters of this State anj
     poison, line,   dynamite) nitroglyoerin,  giant
     powder, or other explosives    or to place in
 Hon. Descaa Giles,   Page 2;   IV- 4.05~


      acloh waters any drugs, substances or things
      deleterious   to fish life for the purpose or
       oatohing or attempting to oatch fish by the
      uaa or such substances or things,     or for any
      other perpose whatsoever, prwided however
      that in event it becmes necessary to place
      any explosive   in waters in connection with
      construotion   work, same may be authorized by
      wrdtten order of the County Judge of the Coun-
      ty where the work is to be done.
           “Any one violating     any provision  of this
      Aot shall be deemed guilty of a misdemeanor
     and an conviction     shall be fined not less than
     Fifty Dollars      $50.00), nor more than One Hun-
     dred Dollars   ( 1 100.00) s and shall serve a sent-
     ence in the county jail of not less than sixty
     (60) deys, nor more than ninety (90) days.”
            It is conorded that this Article     is penal and
4a misduaeanor.    In con&ruing this particular     kind of
rtatatr,   the Texas rule is to construe the law liberally
wi.ti a view to carrying out the Intent of the Lsgialatare.
Art. 7,v. P. c.      Ih awu eaeaa it has been held that
  %x&St oonidruotloo applies only to those statutes oroat-
1:ng tks hi@mr pa-1      oifenaea and not to mere mirtiean-
        BuaU?ro t.. State (Crlta. App. ) 197 S. II. 982, 983;
iiE+ieLph 7. &ate,    9 T’ex, 521.   This statute fal1.s wlth-
5.n $hat class wherein the Legislature     la axerolsing its
pow@* to control and proteot fish.       Aocordlng to the laws
of this Stata, as well a8 all or the other. States,       the
rule is that euoh statutee should be liberally       construe4
in fwvor of their validity,      and that they will not be
stricken down unless the provisions      therein are unreason-
able and arb Wary.       Tuttle v0 Wood, Texas Civil Appeals,
358. W. (26 1 1061, error refused,
            Another rule of Importance in construing such
statutea $8 that the interpretation     should not be extend-
ed 80 as to cover an evil or offense not intended to be
remedied or prevented.    The statute should be construed
in the light of the evil which the Legislature        intended
to prohibit   or suppress when a praotical    application    Of
the statute is made. 50 Amerioan Jurisprudence         440, 8ec-
tion 416.

          Meaeurlng this Artiole     by these standards,  let
us first aseertaln the le~lslativr     intent and the mis-
chief ar wrong to be prevented,      The 44th Legislature I
Aat8 1935, page 64.6, chapter       260, when it amended this
Aot pro~idbd:

            "That it dull   bs unlanful for any psr-
     ran to place in any of the waters of this
     State sny b o a dynamite Q e e or other ex-
     plorires    e a a for the purpose of oatohing
     or attempting to aatch riah by the use of
     8u0h substancse or thinga, for any other.
     purposewhatsoever     Q 0 0n
                                                 ._
            Thin language is substantially  diSS@nt            from
that employed in the prior law which reed:       ~.,~.

              "The cetchingd t&&g    or attempt       to
      catch or take any fish, green turtle           or
      terrapin in any of the salt or fresh           waters,
      la:a;,or    streams of the State by o o        e :;-
                p o D or other explosives   q o      e
      honby prohibited      ,, D en
             ln the prior Act the eubstanoe of the offense
and the sv,il to be prohibited        wes "ths catching,    taking
or attempt to catch or take any fish., etc.,          by the use
or dynamibe,    0tC.f'   fn the present law it is clear that
the substance of evil to be prevented is the placing             in
aaJ or tha watera      of tlp?d State   dynamite etc,,   for any
purpose whatsoever excspt in connection with oonstruc-
tion work which is lawful only when done with the per-
mission of the County Judge of the County wherein the
construction    is being dons.      Underlying both Acts, prior
end present,    is the fundamental intent of the Legisla-
ture to conserve the fish life         of the State,    This is
exprescled   in the caption of the present Act as~2ollows:
               11
                       making it uUbwSul to use COW
      tain     rx~l&~~ves or other things harmful to
      fish     in any of the waters of this State , , .I1
               Again in bhe emergency clause    of    the Act the
      intent     is expreeaed:
           "      D the fact that the present law
      doee noi &?ovide an adequate penalty for
      the uee of dynamite or other harmful things
      used for the purpose of taking fish,   and
      that such things are used to the detr=t
      of the general inter.est of the public of
      this State in.such natural resources   0 s sn
Hon. Bascom Gfles,   Page 4, V-405,

           The offense to be prevented therefore is sim-
ply the placing in any of the waters of this State any
of the substames enumerated7 This is manifest by the
we Qf the pblwe "OP SOP may other puPpQoe whatm34vtJP‘%~
            As this Article     oppliae to sefsmia operations
In the @US', whloh require charges OS &Jnemite to be
set orr, the *eation       my e~ise as to whether the Act
applies to sash operrtions       when the purpcse is uot that
or "oatohlug or attemptinqi to catch fish by the use or
suoh substaawa OP things d The effect          0s the phmaie
"or for any other purpose whatsoever" then become@ very
                The refemnce      to this phrase which we have
    9 heretofel-8 W8S to ShOW the manifest purposs OS the
Legislature   in paBt3itIg  this Aot in connection with the
offense to be prohibited.        We are now concerned with
whether thfe @hrsse falls under the prohlbftion        of a
rule of law kuovn as 6 jusdem generla.       That rule is
where general WOP~SSollov an enumeration of ptmtieu-
lar or speoiflo    things enumrerated the speoifio    or pap-
tiou1er thiugo aeutrol.       Th4 rule is ssgeeislly   appli-
           But tilde rule is mt a%ftrarg,       Pkom 39
Texas J&sprurlenoe,   page 204, it is said:
           "It &oes not control where other por-
     ~tlons of the statute dfsolose   a different
     intent aad meaning, ami ft will    yield to
     the rules ~squiring that statutory     lahg-
     uage be given its plain meaning, and that
     ev4ry p?bPt of 8 statute  be given efSeotC"
            TQ b4 oonsistent   with the policy of the Legis-
letare in pmisi     this  Act,  w4 must give full eSfect to
this phroae "or Y OP any otheagppuppose whatsoeverWz To
etrlke it out would be to &Seat the purpose OS the L4gis-
lsture,  which is to prevent the placing in any of the
wrters  of this Stats dynamite OP other explosives,      It
wtll be uoted also that the eaumerated purposes of "oatoh-
ingl or attePgrt&a& to oat& fish by the we of such sub-
4hn04r   ap       t" are not joimd with the phmee by the
                      Rather,   the paPme   fe eat apart die-
junotively  by the'use of the woni    "oP'~   To disassocfste
the phrase from the statute would fmply an attempt on
the part of the Legislature  to pertit the wanton OF wil-
Sul killing  of fish so long aa the purpose was not striet-
lp to catoh or attempt to catch Sish by the use of such
substances,  when the very essence of the legislative  in-
tent is to prevent barn to the fish for any purpose what-
soever e
Hon. &scorn Giles,     Page 5 s   V-405.


            In the case of Schmidt vi State) 149 N, W,
 388, the Supreme Court of Wisconsin construed exactly
the same phrase in the light of a similar statute and
reaohed the same conclusion.    There the statute pro-
hibited the setting of a gun “for the purpose of kill-
ing gems, * o or for any other purposee.     The ‘defend-
ant argued that the gun was set to protect property
and frighten boys who were likely to enter the premises
for the purpose of stealing   ap,pleE and therefore    the
statute did not cover such purpose.    The Court said:
           “The statute forbide the setting   ot a
     gun for the purpose of killing   game 1 901‘
     for any other purpose. P The intent of the
     Legislature   was to-prevent the setting   of
     guns generally Qlt
          To the same effect is the case of Knoxtenn
Theatres, Inc. v. McCanless (Supreme Court of Tennes-
see), 151 f3, W. (26) 164s _
            Immediately after the phrase “or for any
other purpose whatsoever” is a proviso exempting or
classifying   certain operators from the reach of the
law, as follows:
           “Prwided however that in event it
     becores           to plaoe any expldslvrs
               necessary
     in waters ia connection with construction
     work, same may be authorized  by. written
     order of the County Judge of the County
     where the work Is to be done,”
            It may be argued that the law’ is unconstitu-
tional in thet this provision      in exempting construction
work violates    the equal protection   and discrimination
provisions    of the Constitution.    We are guided by the
ruls  stated in 9 T, J. 558, as follows:
            “While the constitutional        guaranty
     does not forbid the olassiricatlon           of
     subjdots    and parsons for the purpose of
     regulatory    legislation,      it does require
     that the classifioatlon         be, not arbitrary,
     or unreasonable,      but based upon a real
     and substantial      difference    2 having rela-
     tion to the subject of the particular           en-
     a ctme nt a”
Han, Bascom Glles,         Pag6 6, V-405.

See also Watts v. HOnn, Texas CIVIL Appeals, 187 l?,,        W,
 (2d) 917, error refueed; Sportatorium       Inc.,   v- State,
Texas Civil A,peals,     115 9. W. (261) 4b3s error dismissed,
and 16 0, J. g     p. 92kc    It im even held that in pass-
ing re~ulatio&'re~arding      the preservation     of its fish
the Btats mar make &leseifiostionr      of persons in connec-
tion with the regulations     so long as th6 clarslficatlon
is not unreasonable In relation      to th6 subject and pur-
pose of the regulation     and not arbitrary   OP unjustly
discriminatory.    27 corpus Jllrias, g&,-et     eq.
             The provision her6 does not fall within the
prohibition     of unjust discrlmlnat1on     OP arbitrary   and
unreasonable legielatlonJ        It is, obvious that the Legla-.
lature,   after it provided "or for any other purpose what-
soever",    reallaed  that some necessary constmctlon        would
have to be made in the waters of the State,           Without the
pr@vlso the Act would prevent such work.          In this reason-
ings the proviso is a reasonable classiffoation           and ex-
emption.     The objeotion   that it could not b6 equally ap-
plie& to waters outside a county has been cured by the
extmWiOn   of    aOaSta1    hintg   bOur&aFieE   to   th6   3tater~
southermost     boundary in t.he G~lf.~ S, B:.338, 50th Legis-
lature a It     is presumed that you have extended, or will
soon extend     southward, the East and W6at boundaries as
required br     the statute:
            It may be contended that the provfeion     wherein
the County Judge is empowered to iarsu6 permAts for con-
rtruatioa   fs an unwarraptsd &legation     of power,    The
Legislature    may in its discration  delegate   to other agsn-
ties or arms of t&e State, County or municipalities,         the
power to c&wry out the p~ovieions OS the lawI where such
delegation    Is reBecnable and necsssapy;     16 CL J, 3,! p.
548; 9 T. J. 493* et ssq,; Tuttle v, Wood, supra;
            It has tclen contended in briefs    filed with this
M'Pice that the present exploration      work is in connection
with oanstruotfonobsing    neabasay    in order for 011 opera-
tors to know how ond where to build derricks,        sink piper
and drill   for oil a2d other mlneraliu     HcwsverI as we
understand the Saats. the use& of dynhmite in exploFatfons
about whPah yotu inquire ar6 on landa not now under mineral
lease freon the ditate-   The primary purpose of such woFk is
to Qettrrlline what lands private conc6rns will seek to lease
or bid upon wh6n sales are laad6.      ThereSoore 9 aeismio ex-
plorations   by private concerns on ffulf lands not now held
by them under lease cannot be rsaaonablg classified        as
"neceaaary in constmoticn      work'" 60 as to c80!neviihln the
exception contained In the etatute        Wltkk respect to such
unleased lands.    It is unlawful   tc u&e dynsmlie ln the
waters covering sam9
ROIL    BSSCO~        Giles,     Page 7,       VL405c


               Obviously a different    rule applies to lands
which have been leased or which may be leased hereafter
from the State.        When the lessee in good faith decides
he must determine how and where to construct a derrick,
drilling     rig, etc.,   upon such lands and shows that use
of dynamite is necessary in connection with such work,
the County Judge of the proper County may permit such
use under the previso in Article         92L, V. ,P, C. It is
commonly known that detail work must be accomplished
by exploratory       methods which sometimes require use of
explosives      before a lessee.can   determine how and where
to conduct actual construction        and development opera-
tions on the lease he has purchased.          Any of such opera-
tions reasonably necessary ia canneotion with good faith
construction      work could be p0rdttea     by the County Judge
of the County in which the submerged land is located.
             By the use of the terms "in any of the waters
of the State" we believe the Legislature    fully intended
that the placing of dynamite or mother explosives     in the
waters of-the Gulf should be as unlavlful as in inland
waters of the State.     In the prior Act the Legislature
specifically    said:
                 1,
                        0   *   in any of the salt or fresh
       waters,'lakes             or streams in the State s s e1(
           In amending the Act, the l+&th Legislature
rather than enumerate the various kinds of waters, sim-
ply covered all waters by the term "in any waters of
this State".    The Legislature  has in many other Acts
recognized   its property rights in the submerged lands
of the Gulf of Mexico,     With specific  reference  to fish
and other aquatic animal life,    the Legislature   passed
Article  4026, V. C, s,, which among other things, pro-
vided:
             *All of the publia rivers,  bayous,
       lagoons,  creeks, lakes, bays and inlets
       in this State, and all that part of the
       Gulf of Mexico within the jurisdiction
       of this State, together with their beds
       and bottoms, and all of the products
       thereof,  shall continue and remain the
       property of the State of Texas, except
       in so far as the State shall permit the
       use of said waters and bottoms, or per-
       nit the taking of the products of such
       bottoms or waters, and in so far as this




                                           .
Hon. B8soom Giles,     Page 8,    V- .405*



         use shell relate to or affeot the taking
        and conservation       of fish,   oysters,   shrimp,
         crabs,    clams s turtle,   terrapin,   musselsp
        lobsters,      and all other kinds and forms of
        marine life,      e 0 -If
       :s
%A view of this Act, it is manifest that by the use of
the terms "in any of the waters of this State" the Leg-
ielsture      intended that the waters of the Gulf or ~exioo
ever which the State has jurisdiction              be included there-
in.     Those waters and the lands thereunder are just as
moh a part of the State of Texas as the Capitol grounds,
and bUV0 b&an since 1836 when the Cowress of the Repub-
110 ffrst       bet the boundaries of Texas three merinr leagues
irem ahore in the Gulf of Merioa.              The salt water rrrarinr
Itie rit?l&a those water8 era just brr much the property of
fke ': aoe es fresh watrr bass or perch.              The Legislature
inte 3 'ed in Article       92.4 to proteot the salt water fish
just BP mUoh as the fresh water fish.
             dur second question e concerning the euthor-
iby sf the Lana Commissioner or School Land Board to
Per&t aad regulate exploration     work on the lends In
que@tien, should be considered first with respect to
laa$ect leads.   It is iclear that an oil and gas lease
&ld to the. highest bidder by the School Land Board,
u.ndnr:the paovisfons   or Articls 5421~~ as amended,
cer&euith,it     the ri&ht to make geophysical    explora-
b&oae 88 well a8 other explcmtions     end development for
oil and gas onthe leased property.       No rurther permit
18 nece$sery ror such operations    so long as they do not
eonfliat   with other laws, suoh aa Article   92L, Vc P, C,
             It is also clear that the Land Commissioner,
with   respect   to leased landsI may make rules and regu-
lotions    asneerning the exploration    and other operations
ewQaet,ea on submerged lands, so long as they do not oon-
fliot   with Legislative   Aote,  Arti.cle 5366, V, C- SC,
carried forward by reference     in Article 51,21c-5, V:C,S.,
provides:
             ‘“The development of wells and the de-
       velopment and operation upon the areas in-
       cluded herein shall be done so far as pract-
       icable in such manner as to prevent Such
       pollution   of the water as will destroy fish,
       oysters and other sea food,     The Game, Fish
       and Oyster Commissioner shall enforce such
       rules aa the Commissioner of the General
       Land office   may prescribe for that purposei"
  Hon. Bsscom Gilea,   Page 9,   V-40g0


             Therefore,    as to leased land, the Commissioner
 of the Goneral Land Office may make rules and regulations
 which restrict    seismic operations so as to eliminste      many
 of the practices     injurious   to the marine life of the Gulf.
 Any rules aa to use of:dynamite and explosives         must be
 subject to Article      924., V. P. C., which means that the
 lessee may use the same on the leased property only when
 necessary in connection with construction         work, and after
 obtaining a permit from the-County Judge as provided there-
        In order to properly protect fish and marine life        in
 iF;rations   under such a permit      the County Judge should
 grant 8-e    under the condition'that      the lessee will abide
 by the rules and regulations       made by the Land Commissioner
 regarding use or explosives       on State leases.
            As to unleased Gulf lands, it is our opinion
 that the Land Commissioner and the School Land Board have
 no authority   to grant a permit or make rules which would
 permitcnd    regulate geophysical   explorations   thereon.
 When a private concern enters upon public school lands,
 whether upland or submerged, and makes geophysical        sur-
 veys, which revealto     some extent the possibilities      of
 the land producing oil, a valuable right has been enjoy-
 ed and valuable information    has b.een gained,    Aronow v.
 Bishop, lo?M&t.      317, 86 P. (2) ~644;-Ohio Oil Co. v.
 Sharp, 135 F. 12.) 303*
             The scientific    information   obtained by geo-
  physical methods is itsalr      a valuable property right,
. and private landowners usually receive compensation for
  the valuable privilege    given a private concern to ob-
  tain.such  inf’ormation.   Layne La, Co, v, Superio.: Oil
  co., 209 IA, 1014, 26 So. (2) 206
            Such geophysical    rights are an incident   of
 the miners1 atvtata, and this, in Gulf lands, has bean
 set apart to the Public School Fund. Their sale or dis-
 position is, therefore,    within the exclusive   province
 of the Legislature,   and aan ‘never be given away. Arm-
 strong v. Walker, 73 S.,H. (2) 520,
            Any lease or sale of rights in those State
 l&as which are held in trust for the whole people, as
 is the bed of the sea! must be expressly authorized    by
 the Legislature,    Lormo v. Crawrord Packing Co., 142
 Tax. 51, 175 S. W. (2) 410. Grayburg Oil Co, v. Giles,
 143 Tex. 490, 186 S, i/c (21 680; Dolan v, i'lalker, 121
 Tex. 361, 49 S. W, (2) 695; Landry v, Robison, 110 Tex.
 295, 219 S. w. 817; DeMeritt v, Robison, 102 Tex= 358,
 116 8. w. 7960
 Han, Bascom Giles,    Page 10,   V-405,


             The Legislature     has authorized the &rant of such
 valuable rights with respeat to oil and gas only as an in-
 aident to oil ana gas exploration       ana development under
leases,   for which the purchaser must pay the highest bid,
There is no other authority under which the School Land
Board or Commissioner may permit the gathering of thia
valuable iarormation,        This has been the consistent   hold-
ing of this office      under this and past administrations~
Opinion No. O-1172, September 15- 1939. made the same de-
termination with respeat to Texas Prison lands, and a sub-
Sequent LsgisUtture passed s statute acthorizing         such ex-
ploration   permits On Prison lands for a valuable consid-
eration.    Article   6203aa, V: C, S-
           For the same reasons9 you would not have the au-
thority to WI&~ rules and regulations  which would permit
such exploration  on unleased Gulf lands,

            We realize    that It would be of great advantage
 to the School Pund in much higher bonus payments for leases
 if permits could be made (vrith 6d6qUEit6       compensation) for
 the continuation   of geophysical     exploration   of Gulf lands,
We also realize    that enforcement of our laws on this sub-
 &et will hereafter     restrict    Gulf exploration   work to
~,smQs now leased or which will be leased at the next sale
on November I.     However, under our system of Government,
we must operate in accordance wlth the law until the Leg-
i,,eloture changesthe    law,    All of these matters are with-
in the proviaae or the Legislaturec          The School Lana Board
toresew the need for a new law on this subject betora the
50th Legislature    convened and recommended the passage or
a Bill which would allow exploration         permits after pay-
smnt or due compensation therefore,          The Legislature   did
  at see fit to Provide such Ed Aat, and the proposal
9&ouse Bill 50) died in oomaittee.
           Our answer to your second question partially
answers your thire inquiry, whether private concerns owe
the State compensation for information already gained
without a permit or lease on Gulf lands+     It is our opin-
ion thet the Stats is justly due compensation in the form
of damages for the reasonable value of the privilege     ex-
ercised by those companies which have alreaay explored
the land8 without leases thereon,     It is air view that
the &ate,   far the Public School Fund. has the aame cause
of action in this regard as a private owner VJhOS6land
has been explored geophyaicollg   prithout permission-   In
this connection see Layne La: Co v Superior Oil Co ;
                                                                                     -   .
.   .,




           209 La. 1014,       26 So, (2) 20; Angelloz vr Humble 011 Oo.,
           196 x.a, 604,      199 So. 656; and Shell v. Scullg (C,C.A. ,La.) ,
           71 fed.      (2) 772. With your approval,       this    orrioe   will   in-
           atituta      proceedings r0r such recovery.


                                          SUbWRY

                            1. Articls    924, V. P. C., prohibiting
                     the usa 0r dynamitr in the watera 0r Texas,
                     except ror conatruotion      purposes, applies to
                     the waters or the mar       0r Mexioo   within the
                     State’s   boundaries,   and is oonatltutional.
                     The uaa or explorlvss     in coahrption with
                     geophysical   sxplo~t~iona    in such watrr8 0r
                     ths Gull   ie unlawful,   except on lands lsasad
                     rrom the State and then only in aacordancs
                     with the exception In Article        924 when MO-
                     sssary in oonneotion with construotioa        work
                    ‘on said leases.
                          2.   Thr Land Comnleaioner has authority
                    to make rules and regulations       for explora-
                    tion work only on leaeed lands, and then eub-
                    j%ot to Article    9241 V. P. C. There is no
                    authority    for granting a permit or mak%u
                    rules which would permit and rsgulats such
                    explorations    on unlearned lands.

                         3* Private oonoorm which have obtain-
                    ed geophyeioal iniormatlon on odr lands
                    without permit or lease are liable to the
                    State in damages iOr the valve Or the prlV-
                    ile$e so exercised.
                                            Yours vary truly
          APPROVBD:                    ATTCRNBY
                                              GENERALO;lFTEXAS



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                                                        r/         Lip7
                                                  Ron a. Noa,      III
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