Untitled Texas Attorney General Opinion ( 1971 )

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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Honorable Bill T. Swanson, page 2 (M-821)
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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