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Honorable D. C. Greer State Highway Engineer Austin, Texas Opinion No. C-682
Re: Applicability ofArticle 827a-6, V.P.C., to question presented; Dear Mr. Greer: supplementing Opinion No. C-613.

Since the release ofour Opinion No. C-613 onFebruary 17, 1966, there has been aquestion raised whether the State HighwayDepartment may, in its discretion, pursuant toArticle 827a-6, under apermit granted to an owner and operator ofoverweight specially equipped mobile equipment transporting frac oil inservicing oil wells, allow such afracing truck the right to transport crude oil from wells which are not connected to apipeline.

In order to avoid further confusion onthis point, we are issuing this letter as a supplement toopinion No. C-613.

In Opinion No. C-613 (1966), we previously held that the State Highway Department had the discretion togrant the owner and operator ofspecially equipped overweightmobile equipmentwhich transports frac oil in servicing oil wells apermit for the movement ofsuch equipment under Article 827a-6, V.A.P.C.

This statute was designed toauthorize the Highway Department to grant to owners and operators ofsuch machinery a.ndequipment apermit to use the roads and highways ofthe state under the conditions specified where used primarily for the purposes ofservicing, cleaning out, or drilling oil wells. The statute does not expressly nor impliedly restrict such business purposes to those oil wells connected toapipeline. As a new regulatory and remedial act, Article 827a-6, V.A.P.C., must begiven

The servicing ofoil wells, whether or not connected topipelines, necessarily and impliedly includes those activities performed to or about the well which are incident to its needs and operation. The removal of 

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production from thewell is essential tothe operation ofthat well. Many wells are required toproduce continually orwill die, inwhich latter case extensive costly reworking operations often become mandatory. After completion operations, the production may be turned into atank battery for temporary storage. The tank must be emptiedfrom time to time, and the removal ofproduction in the absence ofa pipeline may become an absolutely essential element in the production ofan oil well and the servicing thereof onthe lease where operated. A necessary part ofthe primary business ofoil well servicing is the removal and transportation off the lease ofthe oil for marketing. Our courts, even in the absence of an express obligation, will imply a covenant onthe part ofthe leasee to transport and market the oil produced, for the breach ofwhich the remedies ofliability in damages or termination ofthe lease may become available. See Summers, Oil and Gas, Section 400, page 582; Williams and Meyers, Oil and Gas Law, Section 853, page 388.

It appears to bewell established that the backbaul ofprojects or properties performed incident to the primary business purpose or enterprise ofthe owner and operator will benecessarily implied or authorized in the regulation oftransportation and movement ofvehicles across the highways ofour country. Red Ball Motor Freight, Inc., v. Shannon, 84 S.Ct. 1260, 377 U.S. 311 (1964); Brocks Transp. Co. v. U.S., 93F.Supp. 517, affirmed 71S.Ct. 501, 340 U.S. 925 (1951).

It is the opinion ofthis office that the Sta.teHighway Department may, in its discretion, pursuant to Article 827a-6, V.A.P.C., under its permit granted to anowner and operator ofoverweight mobile equipment transporting frac oil in servicing oil wells as described in Opinion No. C-613, allow such specially equipped fracing trucks the right to transport crude oil from wells which are not connected toapipeline; provided, however, there is acompliance with the conditions required bythe Highway Commission and the payment ofthe fees established byit or required for registration under Article 6675a. As noted in our Opinion **No.** C-613, supra, the Highway Department has the sole discretion, in determining whether to issue the permit, to pass uponwhether the movement may be made without material damage to the highway, whether itwould work a serious inconvenience tohighway traffic, and whether the vehicle is properly registered.

We are aware that we have placed aliberal construction upon this statute. We believe that our conclusions were the intent ofthe Legislature in enacting this remedial statute. If our opinion is not the conclusion intended bythe Legislature, such statute can certainly be amended in the next session ofthe Legislature. We feel that the discretion ofthe Highway 

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Commission in granting or denying permits affords ample safeguards for the protection ofthe State Highway System.
Yours very truly,
WAGGONER CAR R Attorney General of Texas

By: KERNS B. TAYLOR Assistant Attorney General
KBT:da
APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright Executive Assistant

cc: Colonel Homer Garrison



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