Honorable Earl Rudder Opinion W-348 

Commissioner, General Land Office 

Austin, Texas Rez Under Article 54211, 

V.C.S., have the 

primary terms of two 

I leases been suspended 

In view of the fact 

that Humble 011 & Refining Company had a 

lease not only from 

the State but also 

from the City of Tyler 

and Smith County? And 

Dear Commissioner Rudder: related questions. 

In your recent opinion request of this office 

you state the following facts: 

"On October 10, 1951, the Commissioner 

executed an oil and gas lease to Humble 011 

& Refining Company covering Tract 3, Tyler 

State Park, Smith County, and on April 1, 1952, 

the Commissioner executed an oil and gas lease 

to Humble covering Tract 1 of the park. Roth 

of these leases were issued under the provisions of Article 5382d, V.C.S., and were 

for a primary term of five years. All rentals 

due under the leases have been paid. 

"On April 12, 1955, during the primary 

term of these leases the City of Tyler and 

Smith County filed a suit against the State 

of Texas, HumbleiOll & Refining Company, and 

other parties In which they sought to recover 

title to and poseesslon of the land described 
Honorable Earl Rudder, Page 2 (~~-348) 

In the above leases, as well aa other lands. 

This suit Is styled The Citg of Tyler, Texas, 

et al v. The State omexas, x al, No.-!&A, 

mh-&dlcm mix i%iii% ofsiiirth County, 

and la still pending. Your department has afile on this suit. 

"On June 22, 1956, Humble Oil & Refining 

Company secured an oil, gas,and mineral lease 

from the City of Tyler, and on June 25, 1956, 

Humble secured an oil, gas, and mineral lease 

from Smith County, both of these leases covering 

the land here involved. Each lease was for a 

primary term of one year and both have termlnated. During the primary terms of all of the 

leases; i.e., from the State, County, and City 

Humble drilled a well which was completed as 

a dry hole and abandoned on September 11, 1956.” 

You then ask If the primary terms of the two 

leases In question have been suspended by virtue of Article 

54211, V.C.S., in view of the fact that the lessee had leases 

not only from the State but also subsequently acquired leases 

from the City of Tyler and Smith County. 

Article 54211 reads as follows~ 

"Art. 54211. Suspension of running of primary term of 011 and gas lease pending litigation. 

"The running of the primary term of any 

oil, gas, or mineral lease heretofore or hereafter 

iesued by the Commfssioner of the General Land 

Office, which lease haa been, is, or which may 

hereafter become Involved in litigation relating 

to the validity of such lease or to the authority 

of the Commissioner of the General Land Office 

to lease the land aovered thereby, shall be suspended, and all obligations imposed by such 

leases shall be set at rest during the period 

of such lltigatlon. After the rendftion of final 

Judgment in any such litigation, the running of 

the primary term of such leases shall commence 

again and continue for the remainder of the 

period specified in suoh leases, and all obllgations and duties Imposed thereby shall again be 

operative provided such litigation has been instituted at least six (6) months prior to the 

expiration of the primary term of any such leases. 
Honorable Earl Rudder, Page 3 (W-348) 

Provided, further, that the lesrree shall pay 

all annual delay rentals and any royalties 

which accrue during the period of litigation 

the same as during any other period of the 

extended primary term. Such rentals paid 

during the litigation period shall be held 

In suspense and returned to the lessee in the 

event the State is unsuccessful In any such 

litigation. As amended Acts 1951, 52nd Leg., 

p* 750, ch. 406, See, 1." (Emphasis added.) 

The provisions of th9B statute are for the benefit of the State's lessee and such provisions are as much a 

part of'any lease authorized by Article 9382d, V.C.S., as 

though embodied in the lease form itself. The statute clearly 

and unequivocally provides that "the running of the primary 

term of any oil, gas, or mineral lease heretofore or hereafter issued by the Commissioner of the General Land Office 

which may hereafter become involved in litigation rela&g to the validity of such lease Q e shall be suspended 

and all obligations imposed by such leases shall be set at 

rest during the period of such litlgatfon". 

The leases in question were issued by the Commissioner of the General Land Office. The valfdftv of such 

leases were put In question by the suit styled The City of 

Tyler, et al v, The State of Texas, et al, No. 22599-A, 7th 

Judicial District Court, Smith County. Under such circumstances 

the statute unequivocally provides for the suspension of the 

running of the primary term of such lease. 

However, your oplnlon request inferentially 

raises the question of whether Humble's t king a protection 

lease from the Cfty of Tyler and Smith County and its drilling 

a dry hole amounted to a waiver of the rights conferred by 

Article 542lf. 

We do not believe the two protection leases 

taken by Humble from the City of Tyler and Smith County oonstitute a waiver by Humble of the rights conferred to Humble 

under Articles 5382d and 54211. This aotfon by Humble fs 

not inconsfstent with Article 54211. In fact Humble has continued to pay delay rentals up to the present time fndicating 

an intent to accept the provfsfons of A~tfcle 54211, not an 

intent to waPve the rights conferred by said article, 

Humble's drilling of a well is not inconsistent 

with Article 54211. This article provides that royalties 

shall be paid during the period of the extended primary term 
Honorable Earl Rudder, Page 4 (WW-348) 

of such a lease, thus aontemplating development on the part 

of the leeeee during the primary term or extended primary 

term of a state lease. We do not believe Humble’s taking 

of the two protection leasea and attempted development of 

the area evldenaes an Intent to waive the rights oonferred 

by Article 54211. 

Therefore we inform gott that the primary terms 

of the two leaeea in question have been and are suapended 

by the provisiona of Article 54211, V.C.S., pending litigation in the City of Tyler case. 

SUMUARY 

The primary term8 of the oil and gas lease 

executed by the Commissioner of the General 

Land Office on October 10, 1951, In favor 

of Humble Oil & Refining Company, covering 

Trrrct 3, Tyler State Park, Smith County, and 

the lease executed by the Commissioner of the 

Ueneral Land Office on April 1, 1952, in favor 

of Humble Oil & Refining Company, covering 

Tract 1 of the Tyler State Park, Smith County, 

are suspended during the period of litigation 

of the suit styled The City of Tyler, et al 

v. The State ol Texas, et al, Cause No. 22!Z@+A, 

‘7th J tfi i 1 Di t 

by v&u: Ef Ar~l%~ 

tc t of Smith County, 

5’rzr, V.C.S. 

Very truly yours, 

WILL WILSON 

Attorney aeneral of Texas 

BY 

Mllton Richardson 

Assistant 

APPROVRD 8 

OPINION COMMITTBEr REVIEWED FOR THE ATTORNEY 

(3eo. P. Blackburn, Chairman CIENERAL BY8 

Wayland River8 

Morgan Nesbitt 

W .V. Oeppert 

Nary K. Wall