(concurring).
I concur with the holding of the majority that the order of the Commission entered December 4, 1962, authorizing Tidewater to enter on L & G’s lease and conduct an inclination survey by using Sperry-Sun Surveying Company, is an invalid order and its enforcement must be enjoined.
I also concur with the majority holding that the notice given by the Commission was sufficient to authorize the Commission to promulgate Sec. V of Rule 54 on November 2, 1962. This is wholly without regard to the legality of all the provisions of Section V.
It is difficult to know just exactly what the opinion holds regarding the powers of the Commission under Sec. V.
It seems to me that Sec. V only authorizes the Commission to empower the complaining party to make such survey using approved well surveying companies. In addition the complaining third party must pay all costs of such survey, and enter into a bond to be approved by the Commission as security against all costs and risks associated with the survey.
This authorized survey is not to be made under the direction and control of the Commission, but apparently under the direction and control of the complaining third party.
Sec. V makes no provision that the information obtained as a result of that survey be made available to the Commission. Since the third party making the survey is to bear all expenses for making the survey, and give bond as security against all costs and risks associated with the survey, I can only assume that the third party will obtain the information resulting from the survey and do with such information whatsoever it pleases, and can even deny the Commission access to such information. There is nothing in Sec. V to prevent such action.
The provision that the survey shall be witnessed by the Commission “and may be witnessed by any party, or his agent, who has an interest in the field,” merely requires the presence of these witnesses at the time and place of running the survey. If Sec. V be construed as only authorizing the Commission or its agents to make the survey, why the necessity of the provision that the survey may be witnessed by Commission personnel ? Since when has it become necessary for authority for the Commission personnel to witness its own acts? Also, why the necessity of the last paragraph of Sec. V to reserve to the Commission the right to make surveys and inspections ?
And this gets down to my other objection to Sec. V; which is that it contains no requirement that the operator who owns the lease and on which lease the well to be surveyed is located, shall have prior notice and be afforded an opportunity to present his side of this picture, prior to the actual surveying of his well.
That the appellant has a property right in his lease and in the Alexander No. 2 and a right to prevent the entry on his lease of third parties without his consent is fundamental. Womack v. Womack (1943), 141 Tex. 299, 172 S.W.2d 307; Spann v. City of Dallas (1921), 111 Tex. 350, 235 S.W. 513 (1).
The majority seeks to uphold the failure of the Commission to give notice to, and provide a hearing for, L & G by citing the case of Ewing v. Mytinger & Casselberry, 399 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088.
The majority failed to quote the court’s language whereby it sustained the action of the Drug Administrator. That language is as follows:
“When the libels are filed the owner has an opportunity to appear as a claimant and to have a full hearing before the court. This hearing, we conclude, *197satisfies the requirements of due process.
“At times a preliminary decision by an agency is a step in an administrative proceeding. We have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective. See Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Inland Empire [Dist.] Council v. Millis, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877; Opp Cotton Mills v. Administrator of Wage & Hour Division of Dept. of Labor, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624.”
This declaration of law is in accordance with the general holding that so long as a hearing is provided for before the owner’s rights are forfeited, the requirement of due process is fulfilled. 12 Tex.Jur.2d p. 449, Sec. 100; 12 Am.Jur. p. 307, Sec. 612.
To the same effect see Trapp v. Shell Oil Co. (1946), 145 Tex. 323, 198 S.W.2d 424 (17); Glenn Oaks Utilities, Inc. v. City of Houston (1950), 161 Tex. 417, 340 S.W.2d 783(1); United States v. McCrillis (1952) (1st Cir.), 200 F.2d 884(4); Magnolia Petroleum Co. v. Carter Oil Co. (1955) (10th Cir.), 218 F.2d 1(4, 5); Cantu v. Parr (Tex.Civ.App.1960), 338 S.W.2d 182(2), dismissed w. o. j. 161 Tex. 296, 340 S.W.2d 481; 1 Tex.Jur.2d 666, Sec. 24; 12 Tex.Jur.2d 445, Sec. 98, 12 Tex.Jur.2d Sec. 100, p. 449, 12 Am.Jur. Sec. 612, p. 307.
The majority, without citation of any authority, say that the provisions of Art. 6036a, Vernon’s Texas Civil Statutes, do not apply so as to require notice. To me, this holding is in the face of the very plain words used in 6036a, which do require notice, except in an emergency. There is no claim of an emergency in our case. The Commission did not cut off this well from the pipeline, and as far as this record shows it is being permitted to produce and its product is being legally marketed at the present time.
The majority opinion states: “The order here under attack does not authorize the Commission or anyone else to take charge of plaintiff’s property”! Pray tell me how the survey is to be made by anyone other than L & G without taking charge of the lease, the well and the equipment therein, pulling all the equipment from the well, injecting a substance to equalize the pressure in the well. The testimony in the record is uncontradicted that all the above things are necessary in order to run the directional survey.
It is well-settled law that “Rules and regulations of the Railroad Commission cannot effect a change or transfer of property rights.” Nale v. Carroll (1956), 155 Tex. 555, 289 S.W.2d 743, 745; Marrs v. Railroad Commission (1944) 142 Tex. 293, 177 S.W.2d 941 (8, 9); Magnolia Petroleum Co. v. Railroad Commission (1943), 141 Tex. 96, 170 S.W.2d 189, 191; Gregg v. Delhi-Taylor Oil Corp. (1961), 162 Tex. 38, 344 S.W.2d 411(2, 3); Novak v. Bruner (Tex.Civ.App.1959), 320 S.W.2d 439, writ refused.
In the concurring opinion in the case of Humble Oil & Refining Co. v. L & G Oil Co. (Tex.Civ.App.1953), 259 S.W.2d 933, writ refused, n. r. e., it is said: “Regardless of the character of notice and regardless of the extent of hearing had the Commission could not grant authority for one person to trespass on the property of another.”
In view of the wording of Sec. V, I cannot construe it in any other manner than that it was intended only for the purpose of setting up a procedure whereby a third person may be authorized to carry out the duties imposed on the Commission by the Legislature.
Sec. V was not needed to give the Commission power to inspect the well or to determine the bottom hole location.
All parties agree the Commission has had this power for many years. Art. 6049c confers this power by the use of the following language: " * * * to require any well, lease * * * belonging to or under the control of any such person (developers, *198producers, and sellers of petroleum products) to be inspected or gauged by the agents of the Commission whenever and as often and for such periods as the Commission may deem necessary; and the Commission and its agents and the Attorney General and his assistants and representatives may likewise examine the books and records.” This Article first became law in 1932.
The majority also says that Art. 6049c, Sec. 18, requiring that only regular employees of the State of Texas and paid by the State of Texas, shall be entrusted with the enforcement of the orders, rules and regulations of the Commission.
I maintain that a reading of Title 102 shows that the Legislature clearly intended that in the enforcement of our conservation laws as to oil and gas, only employees of the State and paid by the State should be used. By Art. 6032 the Legislature has provided a tax to be known as the Oil and Gas Enforcement Fund, and has also expressly provided, “The funds derived from this tax shall, so far as hereinafter provided, be used for the administration of the conservation laws of this State relating to oil and gas.” While it cannot affect the present case, I have just been handed a copy of H. B. 476, of the current session of the 58th Legislature. I am reliably informed by the Legislature employees that this bill has been passed by both houses and sent to the Governor for signature.
The effect of this bill as stated in the caption prohibits the Attorney General from accepting money from third parties for the purpose of investigating or prosecuting any matter whatsoever. If signed by the Governor, this will close down the Trust Fund heretofore used by the Attorney General in paying for surveys of East Texas wells heretofore made by the Commission.
It also shows that the Legislature does not approve of the provisions of Section V, permitting third parties to pay for surveys of other’s wells, when demanded by such third parties. The Railroad Commission was not created to further the interests of third parties, but of the public. To permit third parties to have the Commission carry out discovery to benefit the third parties, by paying the expenses of such discovery, is contrary to our public policy and to the laws found in Title 102, creating and empowering the Commission to act only for public good.
I cannot construe Sec. V of Statewide Rule 54, as amended, as providing only for the Commission to make inclination or directional surveys of wells, for the following reasons
1. The majority opinion states that Art. 6049c gives this power to the Commission.
2. The language of Sec. V. clearly shows it is for the purpose of empowering others than the Commission to make the surveys.
3. It specifically reserves to the Commission the right, acting on its authority to conduct spot checks and surveys at any time and place for determining compliance with its rules and regulations. Why reserve this right if Sec. V is only to confer on the Commission the right to do those very things ?
4. It authorizes the Commission personnel to witness the survey. What is the necessity of authorizing the Commission personnel to witness its own acts?
5. As construed by the majority, the Commission did a vain and useless thing, and Sec. V does not confer any new power on the Commission.
6. The Commission had the power to require L & G to make a directional survey, under penalty of severing the pipeline connection should L & G not furnish a satisfactory survey.
The proper place for individuals and corporations to obtain information by discovery procedure is in the courthouse where, for over hundreds of years, proper safeguards have been developed for the protection of all parties. The information here sought *199by Tidewater was available to it under judicial procedure. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389 (1950).
It is a sad day when the courts of this State surrender to boards and bureaus the power to conduct discovery procedures. And to allow a citizen or corporation, a potential foe in litigation, to go upon and take charge of another’s property without even so much as notice and an opportunity to be heard, is a clear violation of the due process clause of the Texas and Federal Constitutions.
For all of the above reasons, I would hold Sec. V invalid. This would reach the same result as the majority, but on entirely different reasons.
GREENHILL, J., joins in this opinion.