Reply Brief — Scott v. Union Producing Co. (No. 340)

Fit

OCT 3 1959

JAMES R. BROWNING,

IN THE

Supreme Court of the United States

OCTOBER TERM — 1959

baal

No. 340

H

:

J. VIRGIL SCOTT, ET AL AND PAUL J. ROGERS, ET AL, f

Appellants, }

v. :

UNION PRODUCING COMPANY, ET AL, ‘

Appellees. i

REPLY TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FIFTH CIRCUIT

JAMES C. ABBOTT f

1630 North Tenth Street

McAllen, Texas

Of Counsel:

GEORGE G. CLIFTON

811 Frost Bank Building

San Antonio 5, Texas

ORVILLE I. Cox

804 Pecan Street i

McAllen, Texas i

MALCOLM MCDERMOTT :

1630 North Tenth Street

McAllen, Texas :

EWERS, TOOTHAKER, EWERS, ELICK, $

JONES & ABBOTT e

1630 North Tenth Street

McAllen, Texas

-_

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TEN RA ME OP RM ATE RE NOL LT SL LIE, Ma

Page

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PS 56 0400 se dsb DVAcwhu bande dbo kcdeiendbeetener 2

IN 8 iv 064 on keentnns 504450 4e Cada Keerakerecusel 4

Alleged Conflict with Pooling Cases...................... 4

Possible Conflict in Futuro..................ccccccccces 10

The Option Granted Lessee to Pay Shut-in Gas Well ;

Rental Was Not Exercised Until After the Re- i

version of the Minerals Granted in the Mineral Deeds. .12

NS a Rives x5issbnsau svn ceSuseecoueeuaencaencess 15

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I TUE ich awa s oh GWnkecaeeneudee Lon dened teak ce: 17

ME. SP Wa vie a'ua bu anes s oonoe a Wameiruutoes Gon: 19

—_—— ee ee ea eR eae |

ii

CITATIONS

Cases —

Archer County, et al v. Webb, et al, 326 SW 2d, 250....... 4,7

Freeman v. Magnolia Petroleum Co., 141 Tex. 274;

ee I I 5 9'5 544 Rt bak USL Ooh s Soa Rokenece 12

Holchak v. Clark, 284 SW 2d, 399 (1955)............... 4,9

Rogers v. Osborn, 152 Tex. 540; 261 SW 2d, 311.......... 12

Sellers v. Breidenbach, 300 SW 2d, 178 (1957).......... 4,7

Southland Royalty Co. v. Humble Oil & Ref. Co.,

Sr ee np 604. ans 005 hoswenbawenecessseceasace 4

Spradley v. Finley, 8302 SW 2d, 409....................... 4

TEXAS COURT RULES

Rule 469, Texas Rules of Civil Procedure.................. ~

Rule 483, Texas Rules of Civil Procedure................., 8

Discussion of Rule 469, Texas Rules of Civil Procedure,

by Hon. Robert W. Calvert, Associate Justice,

Supreme Court of Texas............000 00.0 ccccuceee 8

IN THE

Supreme Court of the United States

OCTOBER TERM — 1959

No. 340

| J. VIRGIL SCOTT, ET AL AND PAUL J. ROGERS, ET AL,

Appellants,

v.

UNION PRODUCING COMPANY, ET AL,

Appellees.

REPLY TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Respondents, Claire H. Parmelee and husband,

Clyde D. Parmelee, J. J. Burdin, Horace Etchison, G.

Sueyasu and wife, Asao Sueyasu, in reply to the Peti-

tion for Writ of Certiorari filed herein, respectfully

insist that this cause has been, in all things, correctly

determined by the Courts below, and herewith submit

this Reply.

QUESTIONS PRESENTED

1. Whether the Court of Appeals committed rever-

sible error in its application of the local law of Texas,

holding that the terminal provision of a term mineral

deed was not modified by shut-in gas well rental pro-

vision of a subsequent oil and gas lease executed by

the reversioners to a third-party lessee.

2. When application for writ of error has been

made to the Supreme Court of Texas requesting review

of a case involving a similar question, and if the

Supreme Court of Texas should grant such application,

and if in reviewing such case should decide to overrule

prior final decisions declaring the applicable law,

should the judgment of the Court of Appeals in this

case be vacated and this cause remanded to await the

outcome of such contingencies?

STATEMENT

Petitioners claim title to fractional interests under

two term mineral deeds executed in 1935. These deeds

contain identical terminal provisions, as follows:

“It is further agreed and herein stipulated that in

case there is no __ production on said land on

or before April 25, 1955, and for six months there-

after, this nt shall become null and void and

the minerals hereby conveyed shall revert to the

said Grantor, her heirs and assigns, but should

there be such production, then, and in that event

this grant shall remain in full force and effect

until such production ceases, after which this in-

strument shall become null and void.”

(Emphasis added). (R. pp. 26, 29).

These limited term grants contained no substitute pro-

duction clauses which would allow said grants to be

kept alive beyond the reversion date by shut-in well

payments in lieu of paying production. Only paying

production on and after said date would prolong the

grants. (R. 26-31, Exhibits 1 and 2).

aie

In 19564 Respondents executed an oi] and gas lease

on the property in question in favor of Union Produc-

ing Company, plaintiff herein (Supp. R. 1.). Peti-

tioners are in error in referring to this lease as having

been executed in 1949. The lease contains a shut-

in gas well clause providing, in effect, that while

gas from a gas well is not being marketed, lessee

may, at its option, pay lessor stated sums of money

quarterly, and upon such payment “it will be con-

sidered that gas is being produced from said land”.

(Supp. R. 10). Gas was discovered prior to October 25,

1955, the terminal date of the mineral deeds of 1935,

but no gas was produced from such properties in pay-

ing quantities until April, 1956. In January, 1956,

lessee paid Petitioners, and tendered Respondents, the

quarterly shut-in gas well rental provided for in the

lease, which tender was refused by Respondents. (R.

144, 149). Petitioners’ claim of title under the 1935

term mineral deeds resulted in this suit.

cee ee ee Oe eee

ee

The District Court granted Respondents’ motion for

summary judgment, holding that there was no paying

production on the land on the terminal date of the

deeds (R. p. 220) and that the oil and gas lease of

1954, in favor of Union Producing Company, lessee,

did not modify the term limitation of the mineral deeds

of 1935 (R. p. 226). This ruling was determinative

of the case, and other affirmative defenses asserted ;

to Petitioners’ claim of title were not ruled upon.

Pr aS, PE ATT reel, array tsar

The Court of Appeals, referring “with agreement

and approval of the District Judge’s analysis of the

law and the facts” and adopting “his thorough going

opinion”, affirmed the judgment.

LION OG CPL RS ay

_

DISCUSSION

In substance, Petitioners assert:

(1) The deeision of the Court of Appeals is fn

conflict with the holding of the Supreme Court of

Texas in the cases of Spradley v. Finley, 302 SW 24,

409, and Southland Royalty Company v. Humble Oil

& Refining Company, 249 SW 2d, 914.

(2) That application is now pending in the Su-

preme Court of Texas for writ of error, requesting

review of the case of Archer County, et al. v. Webb,

et al., 326 SW 2d, 250 (Southwestern advance sheet of

September Ist., 1959), and that if such application is

granted, the Supreme Court of Texas may change the

law of Texas as declared by the Court of Civil Appeals

at El Paso, Texas in the Archer County case, and as

announced by the Court of Civil Appeals at San An-

tonio, Texas in the cases of Sellers v. Breidenbach, 300

SW 2d, 178 (1957), and Holchak v. Clark, 284 SW 2d,

399 (1955).

ALLEGED CONFLICT WITH POOLING CASES

Petitioners assert that the decision of the Court of

Appeals is in conflict with the decision of the Supreme

Court of Texas in the Spradley and Southland cases.

These two pooling cases deal with actual physical pay-

ing production. The rationale of these decisions is

based upon mutual agreement between the parties to

the mineral deed, term mineral owners and reversion-

ers, expressed in the pooling clauses of subsequent

oil and gas leases. Petitioners admit that the circum-

stances in the pooling cases differ from those here

involved, but they confuse the effect of actual paying

—

production from the pooled unit in the pooling cases,

with the effect of the optional rental payment of the

shut-in gas well clause in this case. Petitioners con-

tend that by Respondents’ execution of this lease to a

third party with such a clause whereunder Lessee

might prolong its lease beyond the expiration of the

primary term in 1959, these reversioners thereby,

without more, and without any consideration being

paid them for so doing, incorporated such shut-in

well clause into the limited term grants executed by

their predecessor in title, Emma B. Hammond, back in

1935, so as to permit Petitioners’ term grants to be

extended beyond the reversion date of October 25,

1955, for such time as shut-in well payments were

made pursuant to said clause. (Petition 3). This sub-

stitute production clause of said lease shows on its face

that it was designed solely for the purpose of allowing

the lease to be kept alive by and for the Lessee after

the end of the paid-up primary term in 1959. Prior to

that date, substitute production could not be material

or operative. There is not a word or a phrase indicat-

ing any intent to write this clause into the prior limited

term grants of 1935, and to make it operative on Oc-

tober 25, 1955. In the pooling cases, all owners of

mineral interests in certain lands executed leases

whereby they agreed to pooling, which meant, under

the law of Texas, that they agreed that production

from any part of the pool should constitute production

from each parcel of land committed to the pool. Each

owner thus got the right to share proportionately in the

production from the entire pool, in return for giving

up the right to share exclusively in production from

his own parcel. In both of these cases, there was actual

paying production on the reversion date, and the ques-

—_— saws PBR CALEY 7

ee CONST CL SELL PSS DET RN RO PR eae 2

=

tion was whether such production on one part of the

pool operated to keep alive a term mineral grant on

other land in the pool, which would otherwise have

lapsed for want of production thereon. The court held

that by agreeing to pooling and the legal incidents

thereof, all the parties had agreed for good con-

sideration as between themselves that production

anywhere on the pooled lands would constitute produc-

tion from each parcel, and thus would fulfill the con-

dition that would keep alive term mineral grants that

would have otherwise expired for want of production

from such lands.

The able trial Judge clearly distinguishes this case

from the Spradley and Southland cases, in these

words:

“But the Southland and Spradley cases are bot-

tomed upon the mutual AGREEMENT of the

reversioners and the owners of the term mineral

interests. In those cases and the ones upon which

they are based (footnote 6, supra) all the parties

to the joint or contemporaneous leases SUR-

RENDERED something and RECEIVED some-

thing. They surrendered their right to claim ALL

royalties from their particular land; and they re-

ceived a right to share proportionately in the lands

of the other —_— to the leases. There was con-

sideration. There was AGREEMENT.

“Here the Parmelee-Etchison group did agree

WITH UNION that shut-in gas well rentals would

keep the LEASE alive. They did NOT AGREE

with the owners of the term mineral interests, or

with anyone else, that the shut-in gas well pay-

ments would prolong or extend the term MIN-

ERAL GRANTS. The ex parte ratifications by

the owners of the term mineral interests, more

than a year later, could not and did not create an

~

agreement by the Parmelee-Etchison group to ex-

tend the term mineral grants, or that ‘shut-in’

ayments would constitute paying rng

ITHIN THE MEANING OF TH INERAL

GRANTS. The Parmelee-Etchison group has done

nothing at any time to indicate a relinquishment of

their right to claim a reversion in the event of ‘no

paying production on said land’ upon the termina-

tion date. As the Court said in Sellers v. Breiden-

bach, supra: ‘The parties could have placed in

their royalty deed a shut-in gas well provision, if

they had desired to do so, but we find no such pro-

vision in this deed.’” (R. pp. 225-226).

The Court of Appeals approved and adopted the

opinion of the District Court, affirming the judgment

for the reasons stated by the trial Court.

ee A eS, aa

The Appellate Courts of Texas have found no con-

flict between the pooling cases and the rule announced

in the instant case. In the Archer County case, 326 SW

2d, 250, a similar question was before the Court of

Civil Appeals for the Eighth Supreme Judicial District

of Texas. In that case the Court clearly distinguishes

the Spradley and Southland cases and follows the rule

announced in Sellers v. Breidenbach, 8300 SW 2d, 178

(1957), Writ Refused. The El Paso Court of Civil

Appeals cited with approval the holdings of the District

Court and the Court of Appeals in this case. The

Supreme Court of Texas, in both the Spradley and

Southland cases, explicitly bases its decisions upon con-

tracts and agreements, modifying the term limitation %

clause in the mineral deeds, subsequently entered into i

and executed by the parties to the mineral deeds. °

In the case of Sellers v. Breidenbach, 300 SW 2d, ‘

178 (1957), Writ Refused, the Court of Civil Appeals ;

SPRATT ie yte

etka saa tar ony Poet

—

for the Fourth Supreme Judicial District of Texas,

construed the terms of a clause in a term royalty deed,

which is identical with the terms of the clause before

this Court for construction. In the Sellers case, on the

terminal date of the deed “there were two completed

shut-in gas wells capable of producing gas, but abso-

lutely not producing”. The Court stated:

“The parties could have placed in their royalty

deed a shut-in gas well provision, if they had de-

sired to do so, but we find no such provision in this

deed. They could have provided that the royalty

deed would be continued in effect if a well capable

of producing was completed on the premises, if

they had so desired, but they did not do so. ‘Pay-

ing Production’ does not mean the completion of

a well capable of producing, it means a well which

is actually producing on the significant date.”

The action of the Supreme Court of Texas on ap-

plication for writ of error filed in the Sellers case was

“Refused” rather than “Refused. No Reversible

Error’. By such action of the Supreme Court of

Texas, the opinion of the Court of Civil Appeals is

given the same precedential value as one of the Su-

preme Court’s own opinions and, by unanimous agree-

ment, the Justices of the Supreme Court have declared

that such opinion “‘in all respects has correctly declared

the law”. Hon. Robert W. Calvert, Associate Justice,

Supreme Court of Texas in his commentary “The Ap-

plication for Writ of Error’, a discussion of Rule 469,

Texas Rules of Civil Procedure; Vernon’s Annotated

Texas Rules of Civil Procedure, Vol. 8, page 404; also

Rule 488, Vernon’s Annotated Texas Rules of Civil

Procedure, Vol. 3, page 440. (Appendix A & Appendix

B)

a

Opposing counsel have undertaken (Petition 3, line

28, and note 1) to brush aside this clear-cut holding by

referring to it as a “dictum in a case decided by an

intermediate appellate court of this state which is

readily distinguishable,” —. Counsel failed to show in

their petition that this case was taken before the Su-

preme Court of Texas on petition for writ of error,

which court placed its stamp of approval thereon by

refusing to grant the writ. The alleged ground for

distinguishing the case is set out in an affidavit filed

by one of the opposing counsel (R. 135-136) who

claims to have examined the briefs filed in the Sellers

case and to have found that the lease there involved did

not contain a shut-in well clause. No more complete

answer can be given to this effort to distinguish the

Sellers case than that by the able District Judge, who

said (R. 221):

“Counsel seek to distinguish the Sellers-Breiden-

bach case by an affidavit that they have searched

the records and that the LEASE there did not con-

tain, as here, a shut-in gas well provision. But, as

disclosed by the emphasized portions of the fore-

going quotation from the opinion, it is the MIN-

ERAL DEED, NOT THE LEASE, that should

have contained a provision securing to the term

mineral owners the benefit of a shut-in gas well

provision.”

(Emphasis by the Court).

In Holchak v. Clark, 284 SW 2d, 399 (1955), Writ

Refused, the Court construed a term limitation clause

in a mineral deed of practically the exact wording as the

clause in the instant case. The rule of construction ap-

plied in this Holchak case is the same rule applied in

eee ay.

vs

=

the Archer County case and the Sellers case, and fol-

lowed by the Court of Appeals in the instant case.

The Court states the rule to be:

“Had the parties desired a provision which would

allow the term of the deed to be extended by a dis-

covery of oil within the definite term, followed by

diligent operations thereafter, they could have

expressly so provided. As said by the United

States District Court for the Eastern District

of Oklahoma in Wickham v. Skelly Oil Co., 106

F’. Supp. 61, 69, affirmed Skelly Oil Co. vs.

Wickham, 10 Cir., 202 F. 2d 442: ‘No court will

rewrite or reform a contract for the parties in the

absence of fraud or mutual mistake, therefore,

this court will not rewrite the lease contract for

the parties and in effect substitute a reformed

contract for them to include something which is

not present in the lease as made. To do so would

be to construe a simple “well completion clause”

to have the meaning of a “continuous drilling

clause” or a “continuous development or operation

clause”.’ Continuous operation clauses are usual in

oil, gas and mineral leases and royalty convey-

ances. Rogers v. Osborn, 152 Tex. 540, 261 S

311. It is not necessary that courts supply

them.”

This opinion was written by Judge Norvel, now

Associate Justice of the Supreme Court of Texas. On

application for writ of error, the Supreme Court of

Texas gave this opinion the same stamp of approval

which it later gave the Sellers case.

POSSIBLE CONFLICT IN FUTURO

Petitioners are in essence speculating upon the

chance that the Supreme Court of Texas, in disposing

_— ron

of the petition for writ of error in the Archer County

case, may make some declaration of law that will in

some manner support their view of Texas law in this

case. Petitioners advance their forecast of the action

to be taken by the Supreme Court of Texas on

the application for writ of error filed in the

Archer County case as a reason for granting certiorari

herein and remanding. Respondents insist that the

approval of the Supreme Court of Texas of the

principles of law announced in the Sellers and Holchak

cases clearly indicates the action which will be taken on

the application for writ of error filed in the Archer

County case. It cannot be reasonably anticipated that

the Supreme Court of Texas will change the rule ap-

proved by it in these cases. It is not the function of a

writ of certiorari to delay disposition of a pending suit

merely because the unsuccessful litigant hopes that

State law may be changed in his favor by a later State

decision. The application for writ of error in the

Archer County case was filed in the Supreme Court of

Texas on August 17, 1959 and it cannot be reasonably

anticipated that action thereon may be “expected

momentarily”. In the Court of Appeals Petitioners

sought a rehearing upon this same ground, while the

Archer County Case was pending before the Texas

Court of Civil Appeals, vigorously asserting that a

: decision favorable to their contentions would be forth-

| coming if only judgment herein were delayed. An

amicus curiae brief was filed by one of the counsel in

the Archer County Case in support of Petitioners’

position. Said petition for sesamiae in the Court of

Appeals was disallowed.

DNR fe ete a Oe ea Ce eta een ee ee Co Ta aE |

on

EVEN THOUGH SUCH SHUT-IN GAS WELL

CLAUSE BE CONSIDERED A MODIFICA-

TION OF THE TERM MINERAL DEEDS OF

1935, THE OPTION THEREIN GRANTED

UNION PRODUCING COMPANY, LESSEE,

WAS NOT EXERCISED UNTIL APPROXI-

MATELY THREE MONTHS AFTER THE RE-

VERSION OF THE MINERALS GRANTED

THEREBY.

Having held that the shut-in gas well clause of the

lease did not enlarge the term limitation of the prior

deeds, both the District Court and the Court of Appeals

found it unnecessary to rule on the timeliness of the

shut-in gas well tender. The well was completed and

shut-in prior to October 25, 1955, the significant date

in the deeds. On October 25, 1955 there was no paying

production from the lands, and the grants terminated.

In January, 1956, lessee tendered the shut-in gas well

payments.

In the leading case of Freeman v. Magnolia Petrol-

eum Co., 141 Tex. 274, 171 SW 2d, 389 (1948), the

Supreme Court of Texas laid down the rule that where

the period allowed for making a shut-in well payment

to keep alive a mineral estate “straddles” the date for

expiration of the term, such payment must be made

before such expiration date and while the term is yet

alive, otherwise it comes too late and the estate lapses

on the date fixed. This holding was stated and reaf-

firmed by the Supreme Court of Texas in a later lead-

ing case, Rogers v. Osborn, 152 Tex. 540, 261 SW 2d,

311 (1953). Texas law holds that if substitute pro-

duction is to keep a limited term estate alive, then it

must be operative on the reversion date. It cannot be

=_ =

brought into effect after the estate has already lapsed.

In other words, substitute production does not operate

retroactively, so as to revive an estate already lapsed.

It thus appears that this case falls squarely within

the factual situation dealt with in Freeman v. Mag-

nolia Petroleum Co., supra. The well was shut-in on

October 23, 1955; Petitioners’ limited term estates

were set to lapse on October 25, 1955; the shut-in well

payment relied upon as substitute production to keep

Petitioners’ limited term estates alive beyond October

25, 1955, was not tendered until after January 17,

1956. It follows that even if the shut-in well clause

of the lease of 1954 to Union Producing Company

should be deemed a part of Petitioners’ limited term

grants, and even if it can be said that the shut-in well

payment was properly tendered within the quarterly

period allowed therefor, nevertheless it came too late

to serve as substitute production to keep Petitioners’

estates alive, for the term grants had already reverted

on October 25, 1955. This is the established law of

Texas as laid down by its Supreme Court in the Free-

man case and reaffirmed in the Rogers case. For sub-

stitute production to be effective under this clause to

keep Petitioners’ limited term grants alive, the shut-in

well payment must have been made before October 25,

1955.

The learned District Judge did not pass on this point

in his decision of the instant case, for the obvious rea-

son that it was not necessary to doso. His holding that

the shut-in well clause of the lease was not to be read

into Petitioners’ limited term grants, was decisive of

the case, and rendered it altogether unnecessary to go

BO hee ek eo ew eon

=

further and deal with this additional point. Nonethe-

less, it is equally decisive of the case. Obviously, the

granting of the petition for certiorari filed herein

would be pointless, since the Freeman and Rogers cases,

supra, are controlling on this decisive principle of

Texas law.

This is an ordinary suit between citizens of the State

of Texas brought to determine title to mineral interests

in lands situated in Texas. Federal jurisdiction is

conferred only by reason of diversity on the part of the

disinterested party plaintiff interpleader. No Federal

law, statute, or decision is remotely involved. Unlike

the abstention cases cited by Petitioners, no constitu-

tional question is presented, no issue of comity, dis-

ruption of State administrative process, collection of

State taxes, exercise of eminent domain by a State

agency, or any other principle of law of public im-

portance is involved. Petitioners suggest no question

whose resolution by this Court will have any import-

ance beyond the parties here involved. A local rule of

construction of a clause in an oil and gas lease is

presented. The local rules of construction of oil and

gas leases, royalty and mineral deeds, and other instru-

ments creating rights and titles in mineral estates, are

peculiar to the State of Texas. There is little un-

animity among the oil-producing States in the rules of

construction of such instruments. In both the District

Court and the Court of Appeals, able Judges, well

versed in the principles of law here involved, have de-

termined the issue. The applicable law of Texas, as

announced by Texas Courts, has been cited and fol-

lowed.

~~ =

CONCLUSION

Respondents respectfully submit that the Petition

for Writ of Certiorari should be in all things denied.

Respectfully submitted,

JAMES C. ABBOTT

Attorney for Respondents

Of Counsel:

GEORGE G. CLIFTON

811 Frost Bank Building

San Antonio 5, Texas

ORVILLE I. Cox

804 Pecan Street

McAllen, Texas

MALCOLM McCDERMOTT

1630 North Tenth Street

McAllen, Texas

EWERS, TOOTHAKER, Ewers, ELIcK,

JONES & ABBOTT

1630 North Tenth Street

McAllen, Texas

CERTIFICATE OF SERVICE

Copies of the above and foregoing Reply to Petition

for a Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit have been served upon

all counsel for Petitioners and Mr. W. S. Stovall, by

placing copies of same properly addressed and stamped

in the United States mail on this, the day

of September, A.D. 1959.

JAMES C. ABBOTT

=~ Pe

APPENDIX “A”

EXCERPT FROM THE “APPLICATION FOR

WRIT OF ERROR” BY HONORABLE ROBERT

W. CALVERT, ASSOCIATE JUSTICE, SU-

PREME COURT OF TEXAS.

“If no more than two of the Justices believe the judg-

ment of the Court of Civil Appeals is erroneous, the

writ will be denied and the conference then determines

whether the application will be stamped ‘Refused’ or

‘Refused. No Reversible Error’.

“The notation ‘Refused. No Reversible Error’ is ap-

plied automatically if the opinion of the Court of Civil

Appeals has dealt with questions which are not within

the jurisdiction of the Supreme Court or which are

not brought forward by Points of Error for review by

the Supreme Court (Shambry v. Housing Authority,

1953, 152 T. 122, 255 S. W. 2d 184); or if the

Justices are not unanimous in the view that the

judgment of the Court of Civil Appeals is a correct

one; or if the opinion of the Court of Civil Appeals has

dealt with questions of law not necessary to a decision

of the case. If none of these situations exists, the

opinion of the Court of Civil Appeals is carefully con-

sidered and frequently read aloud to see if the Justices

can reach a unanimous agreement that it ‘in all respects

has correctly declared the law’ before it is given the

same precedential value as one of the Supreme Court’s

own opinions by stamping it ‘Refused’. If unanimity

cannot be achieved it is stamped ‘Refused. No Rever-

sible Error’. See 12 Texas Bar Journal 547, Nota-

tions on Applications for Writs of Error, by Gordon

— . nr ani eh er

=

Simpson, former Associate Justice of the Supreme

Court.”

Vernon’s Annotated Texas Rules of Civil Procedure,

Vol. 3 at page 411.

—19—

APPENDIX “B”

TEXAS RULES OF CIVIL PROCEDURE:

“RULE 483. Order on Application for Writ of Error

In all cases where the judgment of the Court of Civil

Appeals is a correct one and where the principles of

law declared in the opinion of the court are correctly

determined, the Supreme Court will refuse the appli-

cation with the docket notation ‘Refused’. In all cases

where the Supreme Court is not satisfied that the

opinion of the Court of Civil Appeals in all respects

has correctly declared the law, but is of the opinion

that the application presents no error which requires

reversal, the Court will deny the application, with the

notation ‘Refused. No Reversible Error.’ In all cases

where the Supreme Court is without jurisdiction of the

case as presented in the application it will dismiss the

application with the docket notation, ‘Dismissed for

want of jurisdiction.’

“In cases of conflict named in subdivision 2 of Art.

1728 of the Revised Civil Statutes of Texas, as

amended, the Supreme Court shall grant the applica-

tion for writ of error, unless it be in agreement with

the decision of the Court of Civil Appeals in the case

wherein the application is filed, in which event said

Supreme Court shall so state in its order, with such

explanatory remarks as may be deemed appropriate.

In cases where the decision of the Court of Civil Ap-

peals is in conflict with a previous opinion of the Su-

preme Court, the Supreme Court may, in its discretion,

without the necessity of granting the writ and hearing

the case, reverse the same on the application for writ