The Honorable Ben Ramsey 

Chairman 

Railroad Commission of Texas 

P. 0. Drawer 12967 

Austin, Texas 78711 

Opinion No. H- 880 

Re: Application of Texas 

Surface Mining and Reclamation Act to clay mining 

which incidentally produces 

lignite. 

Dear Mr. Ramsey: 

You ask whether operations which extract lignite coal 

incidental to surface mining of clay used in the production 

of brick, are within the provisions of the Texas Surface 

Mining and Reclamation' Act and, therefore, subject to 

regulation by the Texas Railroad Commission. 

In connection with the Legislature's directive to the 

Railroad Commission in the Texas Surface Mining and Reclamation Act, article 5920-10, V.T.C.S., to regulate the production 

of coal and uranium by surface mining and the reclamation of 

lands dieturbed by such activities, you advise that there 

presently ex1c.t at leaat two operations in this rrtate engaged 

in the surface mining of clay to be ured in the production 

of brick which incidentally produce lignite coal. Such coal 

is segregated and stockpiled for the expressed purpose of 

either providing a future energy e.ource for use in brick 

production or for sale to the public. You alao advise that, 

by comparison to the amount of clay surface mined at these 

operations, the amount of lignite coal removed and stockpiled 

is nominal and seldom, if ever, exceeds ten percent of the 

volume of material extracted and not regarded as spoil. 

p. 3705 
The Honorable Ben Ramsey - page two (H-880) 

Section 3 of article 5920-10, V.T.C.S., states that the 

purpose of the Surface Mining and Reclamation Act is 

to prevent the adverse effects to society 

and the environment resulting from unregulated 

surface mining operations, as defined herein . . . . 

"Surface mining" is defined in section 4(2) as: 

[Tlhe mining of minerals by removing the 

overburden lying above the natural deposit 

thereof and mining directly from the natural 

deposits thereby exposed . . . .(Emphasis added). 

Section 4(l) includes in its definition of "minerals" only 

"coal, lignite, uranium and uranium ore." Therefore, on its 

face, article 5920-10 does not apply to surface mining 

operations involved solely in the production of clay. 

The legislative history of the Act supports this conclusion. In the original version of the Act, "minerals" 

were defined as "soil, clay, coal, lignite, 

gravel, talc, limestone, rock, metallic ore, 

substances of commercial value." 

%%%!e Committee G Natural 

(Emphasis added). 

Resources adopted a substitute 

bill which deleted clay and other minerals underlined above. 

Such substitute was passed by both Houses in substantially 

its present form. The omission of significant words from 

an amendment indicates that the Legislature desired to change 

the effect of the statute or intended to exclude the object 

theretofore accomplished by the words omitted. See 53 Tex. 

Jur.Zd, Statutes 9 178 and authorities cited therei-n. While 

a statute conferring administrative authority will generally 

be liberally construed, the agency must not go beyond the 

clear intent of the Legislature. Stauffer v; City of San 

Antonio, 344 S.W.2d 158 (Tex. Sup. 1961); l??ex. JuxZd, 

Administrative Law S 6. Since the Leaislature clearlv 

intended to exclude clay mining operations from the effect 

of article 5920-10, we are of the opinion that the Railroad 

Commission is precluded from regulating those clay mining 

operations which only incidentally involve the mining of 

lignite. 

p. 3706 
I - 

The Honorable Ben Ramsey - page three (H-880) 

In making its determination as to whether the extraction of lignite is more than a mere incident to a clay mining 

operation, the Railroad Commission should keep in mind the 

purposes of the Texas Surface Mining and Reclamation Act and 

should be vigilant to insure that an operator does not use 

clay mining as a subterfuge to escape application of the 

Act. 

SUMMARY 

The Texas Surface Mining and Reclamation Act, 

article 5920-10, V.T.C.S., does not authorize 

regulation by the Texas Railroad Commission 

of surface mining operations solely involving 

the production of clay. Whether an operation 

is a clay mining operation which only incidentally involves the production of lignite 

requires a factual determination by the 

Commission, based on the particular 

facts and circumstances involved in each 

case. 

A Very truly yours, 

i : 

_' Attorney General 

DAVID M. KENDALL, First Asssitant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jwb 

of Texas