REPLY TO RESPONDENTS' RESPONSE TO PETITION FOR WRIT OF by zbk18517

VIEWS: 23 PAGES: 15

									                           NO. 04-0957
               ___________________________________

                             IN THE
                   SUPREME COURT OF TEXAS
               ___________________________________

 In re JIMMY GLEN RIEMER, RICHARD COON, JR. , JUNE MEETZE COON
TRUST, JOHNSON BORGER PARTNERSHIP, AND W.R. EDWARDS, JR. d/b/a
      W.R. EDWARDS, JR. OIL AND GAS ON BEHALF OF THEMSELVES
                AND OTHERS SIMILARLY SITUATED
                                     Relators,
                 __________________________________

                        Original Proceeding
               ___________________________________

         REPLY TO RESPONDENTS’ RESPONSE TO
          PETITION FOR WRIT OF MANDAMUS
               ___________________________________

    Marshall M. Searcy             Jody G. Sheets
    State Bar No. 17955500         State Bar No. 18180500
    William N. Warren              GLAST, PHILLIPS & MURRAY
    State Bar No. 00786331         2200 One Galleria Tower
    John T. Wilson IV              13355 Noel Road, L.B. 48
    State Bar No. 24033344         Dallas, Texas 75240-6657
    KELLY, HART, & HALLMAN, P.C.   (972) 419-8300
    201 Main Street, Suite 2500    (972) 419-8329 (fax)
    Fort Worth, Texas 76102
    (817) 332-2500                 D. Clay Holcomb
    (817) 878-9280 (fax)           State Bar No. 09821350
                                   LAW OFFICE OF CLAY HOLCOMB
                                   620 S. Taylor Street, Suite 208
                                   Amarillo, Texas 79101
                                   (806) 376-7585
                                   (806) 376-8300 (fax)


                             COUNSEL FOR RELATORS,
                             JIMMY GLEN RIEMER, et. al.


ORAL ARGUMENT IS REQUESTED
                                       NO. 04-0957
                           ___________________________________

                                         IN THE
                               SUPREME COURT OF TEXAS
                           ___________________________________

 In re JIMMY GLEN RIEMER, RICHARD COON, JR., JUNE MEETZE COON
TRUST, JOHNSON BORGER PARTNERSHIP, AND W.R. EDWARDS, JR. d/b/a
     W.R. EDWARDS, JR. OIL AND GAS ON BEHALF OF THEMSELVES
                AND OTHERS SIMILARLY SITUATED
                                     Relators,
                 __________________________________

                                    Original Proceeding
                           ___________________________________

                REPLY TO RESPONDENTS’ RESPONSE TO
                 PETITION FOR WRIT OF MANDAMUS
                           ___________________________________


TO THE HONORABLE SUPREME COURT OF TEXAS:

        Realtors Jimmy Glen Riemer, Richard Coon, Jr., June Meetze Coon Trust,

Johnson Borger Ranch Partnership, and W.R. Edwards, Jr. d/b/a W.R. Edwards, Jr. Oil &

Gas on behalf of themselves and others similarly situated respectfully submit this reply

and would show the Court as follows:




REPLY TO RESPONDENTS’ RESPONSE TO PETITION FOR WRIT OF MANDAMUS - Page i         668184_1
                                            TABLE OF CONTENTS

                                                                                                                        Page

TABLE OF CONTENTS .................................................................................................... ii

INDEX OF AUTHORITIES ..............................................................................................iii

TABLE OF CITATION ABBREVIATIONS .................................................................... iv

PRELIMINARY STATEMENT ......................................................................................... 1

REPLY POINTS.................................................................................................................. 1

I.       SECTION 21.044’S PLAIN MEANING REQUIRES THE LAND
         COMMISSIONER TO ORDER THE CORRECTION OF THE IMPROPER SURVEY............... 1

         A.        The Commissioner Must Request the
                   Correction of Inaccurate Field Notes and Maps............................................ 2

         B.        The Mandatory Language In § 21.044 Is Not Limited to a Free Filing........ 3


         C.        Section 21.044 Applies to More than Simply Land Patents. ........................ 4

II.      THE COURT HAS BEEN APPRISED OF ALL “IMPORTANT
         FACTS” NECESSARY TO REQUIRE COMPLIANCE WITH § 21.044. ............................. 4

III.     THE 1982 SHINE SURVEY SHOULD BE CORRECTED
         TO REFLECT A GRADIENT BOUNDARY SURVEY........................................................ 6

IV.      THE JUDGMENTS AFFECTING THE RIVERBED HAVE NO BEARING
         ON WHETHER THE FIELD NOTES SHOULD BE CORRECTED. ..................................... 7

CONCLUSION AND PRAYER ........................................................................................ 8




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                                     INDEX OF AUTHORITIES

Cases

State Cases
Brainard v. State, 12 S.W.3d 6, 26 (Tex. 1999).......................................................... 2, 3, 8
Gov’t Pers. Mut. Life Ins. Co. v. Wear, 251 S.W.2d 525, 529 (Tex. 1952) ........................ 2
Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988)...................................... 4
St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997)............................ 2
State v. Riemer, 94 S.W.3d 103, 108 (Tex. App.-Amarillo 2002, no pet.) ......................... 3
Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) ........................................................ 2

State Statutes
TEX. GOV’T CODE ANN. § 311.016 (Vernon 1998) ............................................................. 2

Other Authorities
Arthur Stiles, The Gradient Boundary - The Line Between Texas and
    Oklahoma Along the Red River, 30 Tex. L. Rev. 305 (1952)....................................... 7




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                         TABLE OF CITATION ABBREVIATIONS



        Appendix:                                         App.

        Record:                                           R.

        Supplemental Record:                              Supp. R.

        Petition for Writ of Mandamus:                    Pet.

        Respondents’ Response:                            Resp.

        J.M. Huber Corporation’s Response:                Hub.




REPLY TO RESPONDENTS’ RESPONSE TO PETITION FOR WRIT OF MANDAMUS - Page iv   668184_1
                                 PRELIMINARY STATEMENT

        Only one issue is pending before the Court in this proceeding: whether Texas

Natural Resources Code § 21.044 requires Respondent to request the correction of a

legally invalid survey. The plain meaning of § 21.044 requires Respondent to make that

request. Respondent seeks to avoid the requirements of § 21.044, so that it may continue

relying on a survey that both this Court and the Amarillo Court of Appeals have found to

be erroneous. The limpid purpose behind Respondent’ s adherence to this invalid survey

is to avoid correcting a situation of his own making.                      In particular, in the 1980s,

Respondent requested and filed two surveys that were conducted under a methodology

never sanctioned by Texas law. D.D. Shine conducted both of these surveys. In 1999,

this Court recognized the inherent fallibility of the chosen method. But rather than accept

the fact that it received a legally invalid survey (and perform its statutory duty to request

its correction), Respondent seeks to avoid the legal (as well as moral) responsibility to fix

the mistake, asserting instead that correcting his mistake falls to the citizens adversely

affected by it. Such an argument is not only contrary to written law of this State, it is

noxious to the protections owed by a sovereign to its citizens.

                                          REPLY POINTS

I.      SECTION 21.044’S PLAIN MEANING REQUIRES THE LAND
        COMMISSIONER TO ORDER THE CORRECTION OF THE IMPROPER SURVEY.

        Respondent’ s initial arguments attempt to contort the unambiguous language of

§ 21.044 into something apart from its clear meaning. However, this Court has long held

that courts must construe a statute as written. Gov’t Pers. Mut. Life Ins. Co. v. Wear, 251


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S.W.2d 525, 529 (Tex. 1952); see also St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d

503, 505 (Tex. 1997). As written, § 21.044 requires the Land Commissioner to request

the correction of the field notes.

        A.      The Commissioner Must Request the
                Correction of Inaccurate Field Notes and Maps.

        Respondent first argues that “[w]hile the statute appears mandatory with respect to

providing a statement of errors,” it only applies to those errors that he “concludes actually

exist.” (Resp. 7). Therefore, Respondent argues, Relators have “ignore[d] the need for a

preliminary determination that errors exist.” Id. Relators reply first by noting that

according to the Code Construction Act, the word “‘Shall’ imposes a duty.” TEX. GOV’ T

CODE ANN. § 311.016 (Vernon 1998). Moreover, Respondent’ s argument overlooks that

the Court and the Amarillo Court of Appeals have found methodology errors that exist as

a matter of law. To say that Respondent has not yet reached that same conclusion is

tantamount to expressing a disavowal of judicial findings and his obligation to accept

them.

        The doctrine of stare decisis whereby “[a]fter a principle, rule or proposition of

law has been squarely decided by the Supreme Court…the decision is accepted as

binding precedent.” Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964). By ruling that

Shine used an incorrect methodology in the similar 1989 downstream survey, this Court

squarely decided a rule that applies equally to this case.                 In Brainard, this Court

determined in no uncertain terms that “in order to be legally correct, ... [a] survey must …

comport with the gradient boundary methodology.” Brainard v. State, 12 S.W.3d 6, 26

(Tex. 1999). As with the 1989 Shine survey in Brainard, the 1982 Shine survey at issue

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here is an “ historical” survey that placed the boundaries of the river where they had

historically laid, rather than where the gradient boundary was found under present

conditions. Id at 25. Three years later, the Amarillo Court of Appeals considered the

survey at issue in light of the Brainard opinion; upon doing so, that Court found that such

survey failed to establish the boundaries of the Canadian Riverbed. State v. Riemer, 94

S.W.3d 103, 108 (Tex. App.—Amarillo 2002, no pet.) (“ Here also, the State’ s original

claim was based on a survey of the riverbed which did not recognize the changes in the

course of the river.” ).1

        In essence, the Land Commissioner has received and filed a survey that it now

knows to be erroneous.            Despite the method for correction allowed in § 21.044,

Respondent would rather continue lending his imprimatur to a hopelessly flawed set of

documents, rather than request the correction contemplated by statute. Put another way,

the State’ s executive branch should not continue relying on a document that the judicial

branch has found legally invalid, especially when the legislative branch has provided a

mandatory means to correct it.

        B.      The Mandatory Language In § 21.044 Is Not Limited to a Free Filing.

        Respondent next attempts to avoid § 21.044 by asserting that its mandatory

language only requires the land office to file a corrected survey for free. This argument

is entirely specious.

        In relevant part, § 21.044 states as follows:


1
        Although Respondent now argues that the Brainard decision fails to invalidate the 1982 Shine
survey, the State apparently realized Brainard’s effect in 1999, as it nonsuited its claims against Riemer
which were based upon the 1982 Shine survey, as soon as Brainard was handed down.
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                       (a)    The commissioner shall have a plain statement
                of errors in any field notes . . ., together with a sketch of the
                map, forwarded . . . to the surveyor who made the survey
                with a request to correct and return the field notes and map.

                       (b)  The surveyor shall correct and return the field
                notes and map at once without further charge.

Only a strained interpretation could distort the mandatory duties of §21.044 to apply only

to the waiver of a $25 filing fee.                 Rather, the statute makes two mandatory

pronouncements: 1) the commissioner shall send a statement of errors to the surveyor

with a request to correct them; and 2) the surveyor shall correct those errors. Relators

simply request that these mandatory provisions be followed.

        C.      Section 21.044 Applies to More than Simply Land Patents.

        Finally, Respondent argues that § 21.044 does not apply here inasmuch it exists

only to ensure the accuracy of land patents. Nowhere does that statute include such a

limitation. “ A court may not judicially amend a statute and add words that are not

implicitly contained in the language of the statute.” Jones v. Liberty Mut. Ins. Co., 745

S.W.2d 901, 902 (Tex. 1988).

II.     THE COURT HAS BEEN APPRISED OF ALL “IMPORTANT
        FACTS” NECESSARY TO REQUIRE COMPLIANCE WITH § 21.044.

        Respondent next chastises Relators for not informing this Court of certain

“ important facts.” However, such facts have nothing to do with whether Respondent

must comply with § 21.044. As explained below, the “ important facts” referenced

concern a portion of the Canadian River valley that is not even addressed by the 1982

Shine survey.


REPLY TO RESPONDENTS’ RESPONSE TO PETITION FOR WRIT OF MANDAMUS - Page 4            668184_1
        In his Response, Respondent first references owners of eight (8) sections of land

who failed to participate in the Brainard litigation, but whose land abutted the 1989

Shine survey. As Exhibit A to Respondent’ s response shows, the 1989 Shine survey is

several miles downstream of the 1982 Shine survey.2 (Resp. A) Consequently, the eight

landowners referenced are not impacted by 1982 Shine survey or any correction that may

be required of it.

        Next, Respondent suggests that because Relators (and other affected landowners)

have not themselves conducted replacement surveys, he should be relieved of his duties

under § 21.044. However, there is nothing in § 21.044 that requires landowners abutting

public lands to correct state-sanctioned surveys of public boundaries. Indeed, notions of

equity alone would require the entity who created the problem to fix it.

        Respondent then points out that the Brainard Court required the plaintiffs to pay

for their own survey. However, the dictates of § 21.044 were never presented to any

court involved in the Brainard case; consequently, no court has yet addressed its

applicability to the Shine surveys of the Canadian Riverbed. Moreover, as also noted in

Brainard, the State’ s position that the gradient boundary theory should not be strictly

followed, while never before recognized in Texas, was not entirely frivolous. While the

great weight of authority required compliance with that theory, other authority existed

providing the State with at least some “ arguable” support.                By now, Brainard has

rendered that support entirely meaningless. Nonetheless, Respondent continues clinging


2
       The 1982 Shine survey is marked by red borders, and extends from the Sanford Dam to the
Borger-Stinnett Highway, passing through Section 69 of the Exhibit. The 1989 Shine survey is located
downstream, marked by black borders.
REPLY TO RESPONDENTS’ RESPONSE TO PETITION FOR WRIT OF MANDAMUS - Page 5                     668184_1
to the 1982 Shine survey, despite being fully cognizant of the inherent flaws that render it

ineffectual. Under § 21.044, he has a statutory duty to request their correction.

III.    THE 1982 SHINE SURVEY SHOULD BE CORRECTED
        TO REFLECT A GRADIENT BOUNDARY SURVEY.

        Respondent next argues various reasons why the 1982 Shine survey should be

treated differently than the 1989 Shine survey at issue in Brainard. In the process of

doing so, Respondent reads into Relators’ petition a request that is not there: a request for

a survey of privately-owned lands. Relators make no such request. The Commissioner

previously requested, accepted and filed a survey establishing what the State contended

was public lands, as determined by the “ riverbed” of the Canadian River. That survey is

incorrect, and Relators request that the Land Commissioner follow the dictates of

§ 21.044 to have the 1982 survey corrected under the gradient boundary theory.

        Second, Respondent states that it cannot order the “ involuntary servitude” of the

surveyor. However, § 21.044 (b) requires that the “ surveyor shall correct and return the

field notes and map at once without further charge.”                  As noted above, Respondent

contends that “ without further charge” applies to waiver of a filing fee. The plain

language, however, establishes that the surveyor should correct the errors he made

without charge at the Respondent’ s request.

        Third, Respondent argues that the 1982 Shine survey involves land closer to the

Sanford Dam than the 1989 Shine survey, so that it is more dramatically affected.

Indeed, Respondent notes that in some such areas no flowing water can even be found.

Notably, such “ problem” apparently had little effect on drafting the 1982 survey.

Moreover, the supposed difficulty is addressed by the manner in which a gradient

REPLY TO RESPONDENTS’ RESPONSE TO PETITION FOR WRIT OF MANDAMUS - Page 6                  668184_1
boundary survey is conducted. See Arthur Stiles, The Gradient Boundary – The Line

Between Texas and Oklahoma Along the Red River, 30 TEX. L. REV. 305 (1952).

        Fourth, Respondent attempts to excuse his noncompliance by stating that the State

leased the land to Huber, and that Huber’ s interests cannot be affected by a “ ministerial”

act of correcting field notes. Nowhere in the petition is that issue raised. If a corrected

survey changes the breadth of public lands, then that is a question for another time and

another forum. Here, Relators only request that the “ ‘ministerial’ act of correcting field

notes” be performed.

IV.     THE JUDGMENTS AFFECTING THE RIVERBED HAVE NO BEARING
        ON WHETHER THE FIELD NOTES SHOULD BE CORRECTED.

        Respondent next asserts that portions of the riverbed are established by judgments.

This is a complete red herring. As Respondent’ s Exhibit A establishes, the 1982 Shine

survey involved the Canadian Riverbed extending from the Sanford Dam to the Borger-

Stinnett Highway. This survey affected lands located in Block 46, Sections 69-83 of the

H.&T.C.Ry. Co. Survey (on the south side of the river), and Block 47, Sections 26-40 of

the H.&T.C.Ry. Co. Survey (on the north side of the river). However, the judgments

Respondents reference do not concern land located in these sections.3 Because the

judgments have no clear impact on the land at issue in the 1982 Shine survey, they are


3
        Rather, they concern land located in the following sections: Block 47, Sections 15-18 (Resp.
B:3); Block 46, Sections 58-60, 63 (Resp. B:5-6); Block 47, Sections 25 and 26 (Resp. C:1-2); Block 47,
Sections 22-24 (Resp. D:1); Block 46, Section 64 (Resp. E); Block 46, Section 62 (Resp. F:4-7); and
Block 47, Section 16 (Resp. F:4-7). The only potential overlap between land affected by these judgments
and land affected by the 1982 Shine survey is the reference in Respondents’ Exhibit B to a portion of
Block 47, Section 26. However, the 1982 Shine survey ends in, but does not include all, of the land in
Section 26 bordering the Canadian River. Thus, it is unclear whether this one instance actually involves
any overlap between the survey and the judgment.


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irrelevant to whether the survey should be corrected, and the relief Relators seek would

not affect these sections.4

                                 CONCLUSION AND PRAYER

        Essentially, Respondent created the current situation by accepting an improper

survey, using it to the potential detriment of certain citizens, filing a lawsuit seeking its

judicial acceptance, and then dropping its claims when Supreme Court determined that

the foundation upon which the survey was conducted to be erroneous.                           Now, after

creating the situation, Respondent wishes to avoid correcting it despite a legislative

mandate that requires it to do so. Accordingly, Relators respectfully request that this

Court grant this Petition for Writ of Mandamus and direct Jerry Patterson, as

Commissioner of the General Land Office, to perform his ministerial duty as required by

Texas Natural Resources Code section 21.044 and have the field notes of the Shine

Surveys corrected. Relators further request such other and further relief to which they

may show themselves justly entitled.




4
         Additionally, it appears that these judgments attempt to ascertain the bank of the river as it then
existed to determine the affected land boundaries. (Resp. F:4-7) Significantly, these judgments are dated
between 1941 and 1960, prior to the 1965 construction of the Sanford Dam. If these boundaries have
since been affected by accretion, then as recognized in Brainard, the accreted area will flow to the benefit
of one party and the detriment of the other, irrespective of the pre-existing boundaries. See Brainard, 12
S.W.3d at 17.
REPLY TO RESPONDENTS’ RESPONSE TO PETITION FOR WRIT OF MANDAMUS - Page 8                            668184_1
                                       Respectfully submitted,


        Marshall M. Searcy                               Jody G. Sheets
        State Bar No. 17955500                           State Bar No. 18180500
        William N. Warren                                GLAST, PHILLIPS & MURRAY
        State Bar No. 00786331                           2200 One Galleria Tower
        John T. Wilson IV                                13355 Noel Road, L.B. 48
        State Bar No. 24033344                           Dallas, Texas 75240-6657
        KELLY, HART, & HALLMAN, P.C.                     (972) 419-8300
        201 Main Street, Suite 2500                      (972) 419-8329 (fax)
        Fort Worth, Texas 76102
        (817) 332-2500                                   D. Clay Holcomb
        (817) 878-9280 (fax)                             State Bar No. 09821350
                                                         LAW OFFICE OF CLAY HOLCOMB
                                                         620 S. Taylor Street, Suite 208
                                                         Amarillo, Texas 79101
                                                         (806) 376-7585
                                                         (806) 376-8300 (fax)



                                By:            /s/
                                          John T. Wilson IV

                                 COUNSEL FOR RELATORS
                                 JIMMY GLEN RIEMER, et al.




REPLY TO RESPONDENTS’ RESPONSE TO PETITION FOR WRIT OF MANDAMUS - Page 9            668184_1
                                 CERTIFICATE OF SERVICE

        I hereby certify that on December 6, 2004, a true and correct copy of the foregoing
Reply to Respondent’s Response to Petition for Writ of Mandamus was served by
certified mail, return receipt requested, to the following counsel of record, in accordance
with Rule 9.5 of the Texas Rules of Appellate Procedure:


                                                                      /s/
                                                         John T. Wilson IV
John McFarland
Mary A. Keeney
Graves, Dougherty, Hearon & Moody, P.C.
515 Congress Avenue, Suite 2300
Austin, Texas 78767

Counsel for Respondent, Jerry Patterson,
Commissioner of the General Land Office,
and The State of Texas


George L. Thompson III
George Thompson Law Offices
P.O. Box 65150
Lubbock, Texas 79464-5150

Counsel for the State of Texas


Elizabeth N. Miller
Jane M.N. Webre
Davin McGinnis
Scott, Douglas & McConnico, L.L.P.
600 Congress Avenue, Suite 1500
Austin, Texas 78701-2589

Richard F. Brown
Bradley W. Howard
Brown & Fortunato, P.C.
905 S. Fillmore, Suite 400
Amarillo, Texas 79105

Counsel for J.M. Huber Corporation


REPLY TO RESPONDENTS’ RESPONSE TO PETITION FOR WRIT OF MANDAMUS - Page 10           668184_1

								
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