© 2017 by Kevin Stewart

Forest Oil v. El Rucio (1/28/17): Expressio Unius and the Presumption Against a Change in Common Law

May 2, 2017

     In this case, the court grappled with legislative abrogation of a common-law claim. One of the many canons of statutory interpretation that the court uses says that the court will presume that the legislature, in passing a statute, did not intend to change common law (see Statutory Interpretation § 7.1 of the Handbook). This presumption is even stronger when the court is addressing a remedy or right. The presumption can only be overcome if (a) the statute provides for abrogation expressly, or (b) there is a "clear repugnance" between the statutory and common-law provisions. In other words, the claim must be abrogated by the "express terms or necessary implications" of the statute. Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000).

     At issue was whether the legislature intended the Railroad Commission to have exclusive jurisdiction over what would otherwise be a common-law contamination claim. A provision in the Water Code states the RRC "is solely responsible for the control and disposition of waste and the abatement and prevention of pollution of surface and subsurface water resulting from activities associated with the exploration, development, and production of oil or gas." Additionally, the Health and Safety Code states the RRC has "sole authority to regulate the disposal of oil and gas from" the type of waste that caused the contamination. The court determined that these provisions did not remotely, let alone clearly, indicate that the legislature intended to abrogate the common-law contamination claim.

     The court then considered an argument based on the expressio unius canon (see Statutory Interpretation § 3.3 of the Handbook). This canon states that the expression of one thing indicates the exclusion of others. The Natural Resources Code provides that a landowner harmed by a provision in the code or "another law of this state prohibiting waste or a valid rule or order of the RRC may sue for and recover damages." One party argued that, by allowing a person to sue based on statutory, rule, and order violations, the legislature implied that a person could not sue based on common-law claims that existed at the time that the bill passed.

     In response, the court adopted a clarification to the expressio unius canon that the U.S. Supreme Court currently uses, stating "the force of any negative implication depends on context. The expressio unius canon does not apply unless it is fair to suppose that [the legislature] considered the unnamed possibility and meant not to say it." Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013). The court thereby rejected the argument because the legislature likely did not consider adding common-law claims to that provision.

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