dissenting.
Does this tort suit, filed two and one half years before the Railroad Commission responded to Arkla’s request by finding that Arkla did not violate Commission rules, constitute a collateral attack on an order of the Commission? Not in my view.
The appellees plead and present their case on alternative grounds, claiming that Arkla’s *122wrongful conduct was negligent, intentional or illegal. The verdict and judgment are premised solely on negligence. A petroleum engineer testified that Arkla’s negligent conduct damaged appellees. Evidence showed that Arkla was negligent in allowing the communication of fluid from one reservoir to another, in using poor conservation practices, and in failing to take corrective measures when it learned that it was improperly reducing the gas pressure in the Upper Pettit reservoir while drilling in the Lower Pettit and Travis Peak reservoirs.
Evidence supported the jury’s answers to questions concerning negligence, 'proximate cause, and damages. The Railroad Commission does not have jurisdiction over tort claims between the parties to this suit; it did not purport to make any such determinations. It made no order relating to negligence, proximate cause, or damages. The case was properly before the district court because the Railroad Commission has no authority to determine the answers to these questions. See Amarillo Oil v. Energy-Agri Products, 794 S.W.2d 20, 26 (Tex.1990); Foree v. Crown Central Petroleum Corp., 431 S.W.2d 312, 316 (Tex.1968).
The majority holds that appellees’ negligence cause of action is barred as an impermissible collateral attack on the Railroad Commission’s findings that Arkla’s operations did not violate the Commission’s rules. Actionable negligence does not require that the act or omission complained of should involve any element of illegality. Hommel v. Southwestern Greyhound Lines, 195 S.W.2d 803, 808 (Tex.Civ.App.—Fort Worth 1946, no writ). Consequently, a defendant cannot avoid a charge of negligence merely by showing that the act or omission complained of was not violative of any statute or ordinance. Id. However, this is precisely what the majority is allowing Arkla to do.
A cause of action for negligent waste exists separate and apart from the rules of the Railroad Commission. Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 563 (1948). The law imposes upon all persons the duty to exercise ordinary care when conducting one’s business or in the use and exploitation of one’s property to avoid damaging the property of others. Id. Thus, under the common law, independent of any statute, one drilling and operating an oil or gas well is legally bound to use due care to avoid the negligent waste or destruction of the minerals in the oil- and gas-bearing strata under his land and that of his neighbors. Id.
Furthermore, the Texas Natural Resources Code does not preclude the possibility of a common law negligence action based on grounds other than violations of the state laws or the rules and orders of the Railroad Commission. Although the Natural Resources Code recognizes that violations of its conservation provisions or the rules of the Commission can form the basis for recovering actual damages in a civil suit, the Code does not limit a suit for damages solely to such violations. Tex.Nat.Res.Code Ann. § 85.321 (Vernon 1993). Section 85.321 has a proviso that states:
Provided, however, that in any action brought under this section or otherwise, alleging waste to have been caused by an act or omission of a lease owner or operator, it shall be a defense that the lease owner or operator was acting as a reasonably prudent operator would act under the same or similar facts and circumstances. Id.
(Emphasis added.) This section both acknowledges that a civil suit may be brought on grounds beyond those specified in the section and establishes the defense of the “reasonably prudent operator” standard that is akin to the “reasonably prudent person” standard found in a common law negligence action.
This tort suit is much less of a collateral attack upon the Commission’s order than was the suit to determine the ownership of gas in Amarillo Oil v. Energy-Agri Products, 794 S.W.2d 20. This tort suit is much like that in Bolton v. Coats, 533 S.W.2d 914 (Tex.1975). There it was held that a suit for damages for drainage of oil by wells on adjacent leases was not an impermissible collateral attack on the Railroad Commission’s order. 533 S.W.2d at 916.
*123Additionally, this suit is not a collateral attack on the Commission’s findings because it was filed long before any Commission involvement.
A collateral attack involves a suit to set aside a preexisting judgment or order. See 48 TEX.JuR.3d Judgments § 276 (1986). This suit was filed in 1989. The Railroad Commission’s findings of facts were in 1992. The majority cites cases holding that Railroad Commission orders, unless void, are immune from collateral attack. Of course, these cases all involve suits to set aside preexisting orders of the Commission.
This tort suit is not a collateral attack on the Commission’s order. The majority errs in holding that it is. My review of the remaining points of error touching on a melange of legal issues persuades me that the trial court’s judgment should be affirmed.