The Attorney General of Texas 

June 28, 1978 

JOHN L. HILL 

Attorney General 

Honorable Sob Armstrong 

Commissioner 

General Land Office 

Austin, Texas 78701 

Opinion No. Ii- 1197 

Re: Responsibility for enforcing section 52.293 of the Natural 

Resources Code and remedy for 

breach. 

Dear Commissioner Armstrong: 

You have asked two questions concerning article 5382f, V.T.C.S., now 

codified as sections 52.291 through 52.296 of the Natural Resources Code. 

You ask (1) who is responsible for enforcing its terms and (2) what remedies 

are available if a lessee sells gas out of state in violation of this provision. 

Section 52.292 makes it illegal for certain public officials, agencies,and 

boards, including the Commissioner of the General Land Office, to execute an 

oil, gas, or mineral lease on public land under their custody unless such lease 

contains the following provision: 

No natural gas or casinghead ges, including both 

associated and nonassociated gas, produced from the 

mineral estate subject to this lease may be sold or 

contracted for sale to any person for ultimate use 

outside the state unless the Railroad Commission of 

Texas, after notice and hearing as provided in Title 3 

of this code, finds that: 

(1) the person, agency, or entity that executed 

the lease in question does not require the natural 

gas or casinghead gas to meet its own existing 

needs for fuel; 

(2) no private or public hospital, nursing home, 

or other similar health-care facility in this state 

requires the natural gas or casinghead gas to meet 

its existing needs for fuel; 

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(3) no public or private school in this state that 

provides elementary, secondary, or higher education 

requires the natural gas or casinghead gas to meet its 

existing needs for fuel; 

(4) no facility of the state or of any county, 

municipality, or other political subdivision in this state 

requires the natural gas or casinghead gas to meet its 

existing needs for fuel; 

(5) no producer of food and fiber requires the natural 

gas or casinghead gas necessary to meet the existing 

needs of irrigation pumps and other machinery directly 

related to this production; and 

(6) no person who resides in this state and who relies 

on natural gas or casinghead gas to provide in whole or 

part his existing needs for fuel or raw material requires 

the natural gas or casinghead gas to meet those needs. 

Sec. 52.293. 

State leases executed after the effective date of this statute are null and 

void unless they contain the quoted provision. Natural Resources Code, S 52.295. 

The prohibition contained in section 52.293 is not a regulation of general 

application. It is to operate in the form of a specific clause contained in each lease 

of state-owned land. Penalties are prescribed for failing to include the prohibition 

clause in a lease, but no penalties are specified for violating the prohibition clause 

itself. 

It is our opinion that the legislature intended the prohibition clause to be 

enforced in the same manner as other material provisions in a lease. The remedies 

available in the case of a particular violation are those provided in the lease 

involved and in the statutes which authorize it. 

A violation of the prohibition clause contained in your Revised Lease Form 

10-75, for example, is governed by the following provision in the lease: “if Lessee 

shall knowingly violate any of the material provisions of this lease . . . the rights 

acquired under this lease shall be subject to forfeiture by the Commissioner [of the 

CL01 . . . (Paragraph 181.” Paragraph 19 describes how forfeitures may be set 

aside. It is clear that the prohibition clause is to be regarded as a “material 

provision” of a lease since the legislature declared that leases which fail to include 

it are null and void. 

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Although the usual legal and equitable remedies, such as a suit for damages or 

for specific performance, may be theoretically available, they do not seem 

appropriate for violations involving unauthorized sales of gas for out-of-state 

consumption. 

No single party Is made responsible for enforcing the prohibition against such 

unauthorized sales. It is to be enforced in a particular case by the party 

responsible for enforcing the other provisions of the lease involved. The 

Commissioner of the General Land Office is responsible for enforcing the 

prohibition clauses contained in your Revised Lease Forms 10-75. Under leases of 

state park lands, authorized by Chapter 35 of the Natural Resources Code, the 

Board of State Park Lands has such responsibility. 

The Railroad Commission has no responsibility for enforcing the prohibition 

against unauthorized gas sales. The role of the commission is confined to making 

findings that the natural gas produced from state-owned lands is, or is not, required 

to meet certain local needs, and to granting exceptions to the prohibition clause in 

certain cases. Sees. 52.293, 52.296. 

SUMMARY 

Section 52.293, which operates as a clause in each lease of 

state-owned land, is to be enforced as other material 

provisions of a lease. The remedies available are those 

provided in the lease and in the statutes which authorize it. 

The party responsible for enforcing the other provisions of a 

particular lease is also responsible for enforcing the clause 

required by section 52.293. 

~ &Attorney General of Texas 

DAVID M. KENDALL, First Assistant 

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Opinion Committee 

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