June 5, 1973 

Honorable Eyron Tunnell, Chairman 

Railroad Commission of Texas 

P. 0. Drawer 12967, Capitol Station 

Austin, Texas 78711 

Dear Chairman Tunnell: 

Opinion No. H-46 

Re: Questions relating to the 

applicability of Article 

6005, Vernon’s Texas 

Civil Statutes, (the wellplugging statute) to 

“landowners” as that 

term is defined in the 

statute. 

You have requested our opinion as to the applicability and effect 

of Article 6005, V. T. C. S. (as amended, Acts 1965, 59th Leg., p. 762, 

ch. 355) in seven hypothetical situations, relating to the definition of 

“landowner” and to the extent of his responsibility for plugging abandoned wells. The most pertinent sections of the statute are as follows: 

“Section 1. In this Article, unless the context 

requires a different definition, . . . . 

“(4) ’ landowner ’ means the owner of the land 

upon which the well is situated at the time the 

well is abandoned and one who holds a mineral 

interest therein; 

“Section 4. If the operator fails to comply with 

Section 2 of this Article and the nonoperator fails to 

comply with Section 3 of this Article, then, in that event, 

each landowner is responsible for his proportionate 

share of the cost of proper plugging of the well within 

a reasonable time, according to the rules and regulations of the Commission in effect at the time the responsibility attaches. ” 

p. 185 
Honorable Byron Tunnell, page 2 (H-46) 

“Section 5. If a landowner plugs or replugs a 

well under Section 4 of this Article, then the landowner 

shall have a cause of action against the operator and 

nonoperator or either of them, as the case may be, 

in any court of competent jurisdiction for all reasonable costs and expenses incurred in the plugging or 

replugging of the wetl, to be secured by a lien upon 

the interest of the operator and the nonoperator, or 

either of them as the case may be, in the oil and gas 

underlying the lease upon which the well is located 

and upon the interest of the operator and the nonoperator, or either of them, as the case may be, in all 

fixtures, machinery and equipment found or used on 

said lease; provided, however, that if the landowner 

is responsible for the well not being properly plugged, 

then the said landowner shall not have a cause of action 

under this Article. 

“Section 8. (a) Upon the determination by the 

Commission under Section 7 (a) of this Article that 

such a well has not been properly plugged, or needs 

replugging, the Commission, through its employees 

or through a person acting as agent Sor the Commission, may plug or replug such a well, if 

“(1) the well was properly plugged according 

to regulations in effect at the time the 

well was abandoned or ceased to be 

operated; or 

“(2) neither the operator, nonoperator nor 

the landowner properly plugged the 

well, and 

“(A) neither the operator, nonoperator 

nor the landonwer can be found; or 

“(B) neither the operator, nonoperator 

nor the landowner has assets with 

. which to properly plug the well. 

p. 186 
Honorable Byron Tunnell, page ‘3 (H-46) 

“Section 9. If the Commission plugs a well 

under Section 8 of this Article, the State has a cause 

of action for all reasonable expenses incurred in 

plugging or replugging the well acording to the rules 

and regulations of the Commission in effect at the 

time the well is plugged or replugged. The cause 

of action is first against the operator, to be secured 

by a lien upon his interest in the oil and gas in the 

land and all his fixtures. machinery and equipment, 

found or used on the land where the well is situated, 

and second. against the nonoperator at the time the 

well should have been plugged, to be secured by a 

lien upon his interest in the oil or gas in the land, 

and third, against the landowner, to be secured by 

a lien upon his interest in the land.” 

We have found no cases in which the courts have directly considered 

the character and extent of the obligations of landowners to plug abandoned 

wells under Article 6005, V. T. C. S. Therefore, the following discussion 

represents what we consider to be the proper construction of the statute 

in the light of court decisions which have construed some of the language 

of this article. 

The first question posed by the Railroad Commission is as follows: 

“1. ‘A’ owns the mineral rights, hut none of 

the surface rights of the tract on which a well is located. 

“QUESTION: Is ‘A’, the landowner, within the statutory 

definition? If not, is there a landowner?” 

We assume that “A” has executed an oil and gas lease covering his 

mineral estate; otherwise, he would probably be an operator. Under 

these facts, we are of the opinion that “A” would be a “landowner” although 

not owning any of the surface estate. If “A” owns a real property interest 

in land upon which the we.11 is situated (other than a non-participating royalty 

interest), he is an “owner of the land upon which the well is situated. ” For 

the Legislature to have excluded a mineral lessor from responsibility for 

p. 187 
Honorable Byron Tunnell, page 4 (H-46) 

plugging merely because he owned no surface estate is moat improbable, 

in view of the fact that such lessor probably received a bonus, delay 

rentals, and certainly the benefits of the exploration of hir mineral estate. 

Your second quertion is: 

“2. ‘A’ owns all of the property rights at the 

time the well is drilled but sells the surface and a 

fraction of the minerals before the well ceases to 

produce. 

“QUESTION: Is ‘A’ the landowner? If so, what is 

the extent of his liability? ” 

We understand this question to refer to a mineral lessor who owned 

the entire fee simple estate in surface and minerals prior to execution of 

an oil, gas, and mineral lease, and who, during the term of said lease 

and while minerals were being produced, sold his surface estate and a 

portion of his mineral estate. For the same reasons given above, “xSt 

would be a landowner within the meaning of the statute by virtue of his 

retained ownership of an interest in the mineral estate, 

Section 4 of Article 6005, V. T. C. S., states if the operator and 

nonoperator fail to comply with the Article, each landowner is responsible 

for his proportionate share of the cost of the proper plugging of the well. 

“A” would be responsible for that proportion of the cost of plugging as 

his mineral ownership bears to the entire mineral fee estate. 

The Legislature, in Article 6005, V. T. C. S., has created a threetiered scheme of responsibility. Under Section 2, the operator bears 

100% of the responsibility for the plugging. The statute does not consider 

the percentage of his ownership of the working interest, but simply says 

“the operator of a well shall properly plug the well when required, I’ 

Presumably, he can look to hi,s nonoperators for reimbursement under 

the operating agreement. 

The second tier consists of the nonoperators or owners of the 

working interest who are not responsible for the physical operation and 

control of the well. Each nonoperator is responsible “for his proportionate 

p. 188 
Honorable Byron Tunnell, page 5 (H-46) 

share of the cost of proper plugging. ” We are of the opinion that the 

Legislature intended to make the nonoperators collectively responsible 

for the plugging of the well in the event of the operator‘s failure. 

Therefore, as between the nonoperators, each would be responsible 

for a portion of the entire cost of plugging not paid by the operator in the 

same ratio that his interest bears to the total nonoperating interest. 

Between the nonoperators and the landowners, the nonoperators are 

severally liable for the entire cost. 

The “landowners” form the third tier of responsibility and are 

responsible for the entire cost of plugging upon default by operator and 

nonoperators. This responsibility is divided between the landowners 

according to their proportionate ownership of the mineral estate and 

not the ownership of the surface estate. Only the mineral estate stands 

to receive the benefits of exploration and production. The “landowners” 

are, therefore, responsible for that proportion of the entire cost of 

plugging which their respective ownerships bear to the entire mineral 

fee estate. They, of course, have claims for reimbursement under 

Section 5. 

The next question is: 

“3. ‘A’ purchases a royalty interest under 

a drilling or producing well (no surface rights). 

The well ceases to produce. 

“QUESTION: Is ‘A’ a landowner? If so, what is 

the extent of his liability? ” 

The ownership of a non-participating royalty interest with no 

rights to bonus, delay rentals, or executive rights does not constitute 

its owner a “landowner. ” The statute, in Subsection 3 of Section 1, 

specifically excludes royalty and overriding royalty owners from the 

status of operators or nonoperators: “It is understood that the terms 

‘operator’ and ‘nonoperator’ as defined in this Article do not mean a 

royalty interest owner or an overriding royalty interest owner.” 

p. 189 
Honorable Byron Tunnell, page 6 (H-46) 

The definition of “landowner” requires that he hold a “mineral 

interest therein. ” The terms “mineral interest, ” “mineral rights, ” 

and “minerals” have repeatedly been distinguished from the terms 

“royalty, ” “royalty interest” by the Texas courts. As stated by the 

Commission of Appeals in Schlittler v. Smith, 128 Tex. 628, 101 S. W. 

2d 543 (1937): 

“The words ‘royalty, ’ ‘bonus, ’ and ‘rentals’ have a ’ 

well-understood meaning in the oil and gas business. 

Likewise, ‘minerals’ and ‘mineral rights’ have a wellrecognized meaning. Broadly speaking, a reservation 

of mineral rights without limitation’would include royalties, bonuses, and rentals, a conveyance of land 

without reservation would include all minerals and 

mineral rights. However, it is well settled that a 

grantor may reserve minerals or mineral rights and 

he may also reserve royalties, bonuses, and rentals, 

either one, more or all. Here we have a reservation 

of only ‘royalty rights. ’ It is obvious, it seems to us, 

that this does not include a reservation of bonuses, or 

rentals, but only of an interest in oil, gas, or minerals 

paid, received, or realized as royalty. . . . I( 

The distinction between “minerals” and “royalty” is exhaustively 

treated in Vol. I, Williams and Meyers, Oil and Gas Law, Section 302, 

et seq. 

We conclude, therefore, that a royalty owner does not own a “mineral 

interest” as that term has been defined by the courts, and is not a “landowner” within Article 6005, V. T. C. S. Accordingly, we answer Question 

No. 3. “No. I’ 

The fourth question is: 

“4. ‘A’ owns the surface and mineral rights of 

a property at the time production ceases. Thereafter, 

he sells all or a portion of his interest. Thereafter, 

the well is found to be a pollution source. 

“QUESTION: Is ‘A’ still the landowner? If so, what 

is the extent of his liability? ” 

p. I90 
. 

Honorable Byron Tunnell, page 7 (H-46) 

We assume that by “at the time production ceases” ir meant the 

time the well is abandoned. Cessation of production does not necessarily 

correspond to abandonment. A well may be “worked over” or various 

means may be used to restore production subsequent to the cessation of 

production, and while these operations are going on, the well would not 

be deemed to be abandoned. 

“A” would fall under the statutory definition of a “landowner” and 

would be responsible for plugging the well on default by the operators and 

nonoperators. His liability would be measured by his mineral ownership 

at the time of abandonment. Therefore, he would be responsible for that 

proportion of the cost of plugging as his mineral ownership at the time of 

abandonment bore to the entire mineral fee estate. 

The fifth question posed by the Railroad Commission is as follows: 

“5 . ‘A’ owns the surface and minerals at the 

time of last production. Thereafter, ‘A’ assigns 

his interest to ‘B’. After the assignment, the well 

is determined to be a polluting well. 

“QUESTION: Is ‘B’ a landowner? If so, what ia the 

extent of his liability? ” 

In considering this question, we assume that by “the time of last 

production ” is meant at the time of abandonment, and that “B” owned no 

interest in the property prior to the assignment from “A” to “B”. Under 

these circumstances, “B” would not be a “landowner” became he did not 

own any interest in the land until subsequent to abandonment. Therefore, 

he would not be responsible for plugging. 

Section 9 of prticle 6005, V. T. C. S., provides that, in the event 

the operators, nonoperators, and landowners fail to plug the well and 

the Railroad Commission does so, the Commission shall have a cause 

of action against each of the foregoing secured by a lien upon their respective interests in the fixtures, equipment, and machinery found or used 

upon the land and a lien upon the landowner’s interest in the land. Presumably, this lien would not apply to “B”‘s interest in the land since he 

is not a landowner within the meaning of the statute. “A” would, of 

course, still be personally responsible. 

p. 191 
Honorable Byron Tunnell, page 8 (H-46) 

The sixth question is: 

“6. ‘Al owns surface and minerals at the time 

production ceases. ‘A’ dies, leaving ‘Bt and ‘C’ as 

heirs. The well is found to be a polluting well. 

“QUESTION: Are ‘B’ and ‘C’ landowners? If so, 

what is the extent of the liability of each? Ia the 

estate liable before distribution? ” 

If the words “at the time production ceases’trefer to the time of 

abandonment. then “A” was the landowner. In the absence of any mention 

of heirs, personal representatives, executors, administrators, devisees. 

or the like, we are of the opinion that the statute does not.provide for 

succession. The obligations imposed on “landowners” by Article 6005, 

V. T. C. S., are highly ccntingent, unliquidated, and would not appear to 

be debts recognized at Common Law. Their scope must be measured by 

the explicit terms of the statute. By limiting the obligations to “landowners” 

without mention of heirs or personal representatives and by defining landowner as the person owning the land at a particular time, namely, at the 

time of abandonment, the Legislature left no room to infer the succession 

of these obligations. 

The seventh and last question posed by the Railroad Commission is 

as follows: 

“7. ‘A’ purchases a tract of land on which, known 

or unknown to him, there are one or more non-producing 

wells. Thereafter, such wells are determined to be polluting 

wells. 

“QUESTION” Is ‘A’ a ‘landowner. t If so, what is the 

extent of his liability?” 

The above question, as does Question 5, involves the liability of a 

grantee or successor in title to land upon which there are unplugged or 

improperly plugged wells. In such cases, responsibility depends on the 

time of acquisition. “The time of abandonment” is fixed by the statute 

as the determinative time. If, therefore, “A” purchased the land after 

p. 192 
Honorable Byron Turntell, page 9 (H-46) 

abandonment, he ia not a “landowner”. If he purchased before abandonment, he is a “landowner” and his liability ie determined by the percentage 

of his mineral fee ownership. 

SUMMARY 

In determining who are “landowners” in the 

context of Article 6005, V. T. C. S., the time of 

acquisition is of importance since he who owns 

the land at the time the well is abandoned is the 

“landowner”, made liable for the cost of plugging 

if the operator and nonoperators do not fulfill 

their obiigations. 

Very’ truly yours, 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 192A