Honorable Bob Armstrong 

Commissioner 

General Land Office 

Austin, Texas 78701 

Opinion No. M-1046 

Re: Whether a twenty-five 

year term mineral lease 

may be extended beyond 

its fixed terms by virtue 

of a force majeure clause 

Dear Mr. Armstrong: under presented facts. 

You request our opinion on whether a twenty-five year 

term mineral lease, dated June 11, 1946, was in good standing 

at the time an extension of the lease was applied for under 

the provisions of Article 5944c, Section 2, .Vernon's Civil 

Statutes. 

Prior to 1948, the State of Texas issued a considerable 

number of twenty-five year term oil and gas leases. In order 

to prevent the rapid depletion of mineral reserve under such 

leases and to prevent wasteful production practice, and to 

increase the revenue of the Public Free School Fund, House 

Bill 17, Acts of the 50th Legislature, Regular Session, 1947, 

Chapter 82, Page 139, codified in Vernon's as Article 5344c, 

Vernon's Civil Statutes, was enacted. This Act authorized the 

School Land Board, on application made prior to October 1, 1948, 

to amend these leases to extend their terms for as long as minerals 

are being produced in paying quantities and authorized the Board 

to fix the consideration for each amendment. 

Section 2 of House Bill 17, Acts of the 50th Legislature, 

Regular Session, 1947, has been amended numerous times to change 

the cut-off date for filing an application to extend the fixed 

term leases. 

House Bill No. 1755, Acts of the 62nd Legislature, First 

Called Session, 1971, again changed the cut-off date. No other 

change was made by the 1971 amendment which became effective 

June 15, 1971. 

Article 5344c, Sec. 2, as amended in its relevant portion, now reads: 

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Honorable Bob Armstrong, page 2 (M-1046) 

"Sec. 2. Any lease heretofore granted and 

in good standing covering any of the lands or 

areas referred to in Section 1 of this Act, 

upon application by any owner thereof to the 

Commissioner of the General Land Office before 

December 1, 1971, may be amended under the 

terms of this Act so as to provide that such 

lease shall remain in effect as long after the 

expiration of its primary term as oil, gas, or 

other mineral covered by such lease is produced 

therefrom,. ~ ." 

The lease in question was given on the 11th day of June, 

1946, and it covered ninety acres of the Brazos River Bed located 

in Fort Bend County. Normally, under the terms of the lease, 

the twenty-five year period would end on June 11, 1971. An application to extend the lease as provided by Article 5344c, 

Sec. 2, was filed on October 4, 1971. 

You state in your request that .the applicant and owner 

of the lease maintains that the lease was extended beyond 

October 4, 1971, under the force majeure clause contained in 

paragraph 10 of the oil and gas lease. The term "force majeure" 

(or its Latin equivalent, 

to forces of nature, 

vis major) originally was restricted 

as stated In The George Shiras, 61 Fed. 

300, 301 (3d Cir. 1894): 

II . . .A loss is said to be caused by vis 

in;n;; when it results immediately from a natural 

, wrthout the intervention of man, and 

could not have been prevented by the exercise 

of prudence, diligence, and care. . .Thus, a 

storm of unusual and extraordinary violence, a 

sudden gust of wind, and a tempest, have been 

held to be examples of vis major. . ." (Emphasis supplied.) 

However, later cases tended toward a broader definition 

of force majeure and in Pacific Vegetable Oil Corp. vs. C.S.T., 

*, 29 Cal.Zd 228, 238, 174 P.2d 441 (Cal.Sup., 1946), the 

Court held that governmental action provoked by the necessity of 

war constituted force majeure. The Court there stated: 

"'Force majeure', or the Latin expression 

'vis major', is not necessarily limited to the 

equivalent of an Act of God. The test is 

whether under the particular circumstances 

there was such an insuperable interference occurring without the party's intervention as 

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Honorable Bob Armstrong, page 3 (M-1046) 

could not have been prevented by the exercise 

of prudence, diligence and care. . . ." 

(Emphasis supplied.) 

The force majeure clause in the lease in question reads, 

in part, as follows: 

"10. Should lessee be prevented from complying with any express or implied covenant 

of this lease, from conducting drilling operations thereon, or from producing oil and/or gas 

therefrom, after effort made in good faith, by 

reason of war, rebellion, riots, strikes, acts 

of God, or any order, rule or regulation of 

governmental authority,~then while so prevented, 

lessee's obligation to comply with such covenant 

shall be suspended and lessee shall not be 

liable for damages for failure to comply therewith: and this lease shall be extended while 

and so long as lessee is prevented, by any such 

cause, from drilling, reworking operations or 

producing oil, gas or other minerals from the 

leased premises: provided, however, that nothing herein shall be construed to suspend the 

payment of delay rentals in order to maintain 

this lease in effect during the primary or extended term in the absence of such drilling or 

reworking operations or production of oil and/or 

gas." (Emphasis added.) 

Under a fixed term lease such as we have here, the lessee 

has twenty-five years in which to produce the oil and gas, and, 

if he is prevented by causes beyond his control, then, in effect, 

the lessee does not have a twenty-five year term lease. 

The undisputed facts as furnished to us from your office 

indicate that for a total period in excess of 120 days over the 

past twenty-five years, the lessee was prevented from drilling, 

reworking operations or producing by reason of "Acts of God" 

and/or by "order, rule or regulation of governmental authority" 

within the literal meaning of paragraph 10 of the lease. The 

information furnished reflects no lack of good faith efforts by 

the lessee. Thus, under the language of paragraph 10, the lease 

has been extended beyond October 4, 1971, by its own terms. 

Therefore, it is the opinion of this office that the force 

majeure clause has extended the lease in question in excess of 

120 days past the regular expiration date of June 11, 1971. It 

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Honorable Bob Armstrong, page 4 (M-1046) 

is further our opinion that the lease was in good standing on 

October 4, 1971, at the time application was made to the Board 

for an extension of the lease and, thus, the School Land Board 

may consider the application to extend the lease now pending 

before the School Land Board. 

SUMMARY 

Under the existing facts, the lease in question has been extended by the force majeure clause 

and the lease was in good standing on the date the 

application to renew was made. 

C. MARTIN 

ey General of Texas 

Prepared by Linward Shivers 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

J. Milton Richardson 

John Reeves 

Jim Broadhurst 

Marietta Payne 

SAM MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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