NUMBER 13-24-00422-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
VIRGINIA L. DIERLAM, TRUSTEE
OF THE VIRGINIA L. DIERLAM TRUST
AND MCFADDIN RANCH L.P., Appellants,
v.
ALLEGIANT RESOURCES LLC, Appellee.
ON APPEAL FROM THE 24TH DISTRICT COURT
OF VICTORIA COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and West
Memorandum Opinion by Justice Peña
In this oil and gas access dispute, appellants Virginia L. Dierlam, Trustee of the
Virgina L. Dierlam Trust and McFaddin Ranch L.P. (Dierlam) appeal the trial court’s denial
of their motion for temporary injunction. By two (consolidated) issues, Dierlam argues the
trial court: (1) greatly exceeded the scope of the temporary injunction when it (a) granted the object of the suit, (b) failed to preserve the status quo, and (c) failed to comply with
the mandatory requirements of temporary injunction orders; and (2) failed to grant
Dierlam’s motion for temporary injunction (a) due to an existing permanent injunction and
(b) because appellee Allegiant Resources, LLC “has no right to use” Dierlam’s land. We
affirm.
I. BACKGROUND
Dierlam owns a 1,604-acre tract in Victoria County that is part of the McFaddin
Ranch (the Dierlam Ranch). Allegiant’s predecessors operated an oil and gas well located
on adjacent property (the Wright Land) from 1996 through 2015 called the Remora Oil
Unit No. 1. In 2004, Dierlam obtained a permanent injunction prohibiting access to the
Dierlam Ranch from well operators to access the Remora Oil Unit (2004 injunction). 1 The
Remora Oil Unit well is now shut-in, and Allegiant seeks access to the Dierlam Ranch for
the purpose of plugging it.
On July 29, 2024, Dierlam filed suit against Allegiant and sought a permanent
injunction, or, in the alternative, a temporary restraining order, “temporary injunction and
further permanent injunction.” Dierlam sought to enforce the 2004 injunction and included
a claim for inverse condemnation. Allegiant filed a counterclaim and an application for
temporary injunctive relief. Allegiant sought a declaration that it is authorized to access
the Dierlam Ranch for the purpose of plugging the abandoned well, that Dierlam may not
interfere with plugging operations, and that Allegiant is authorized to do so pursuant to
1 Several other parties unrelated to this appeal have tried to obtain an access easement to the
Dierlam Ranch in 2002, 2010, and 2012 but were unsuccessful. Schilhab v. Dierlam, No. 13-03-00185-CV, 2004 WL 1797585, at *1 (Tex. App.—Corpus Christi–Edinburg Aug. 12, 2004, no pet.) (mem. op.); Wright v. Dierlam, No. 13-12-00004-CV, 2013 WL 1188999, at *1 (Tex. App.—Corpus Christi–Edinburg Mar. 21, 2013, no pet.) (mem. op.).
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Section 89.044(a) of the Texas Natural Resource Code (TNRC) because the matter was
a public necessity.
On August 19, 2024, the trial court heard the parties’ competing motions for
temporary injunctions and orally granted Dierlam a temporary injunction “pending ruling
by the court on the competing requests for temporary injunctions.” At the evidentiary
hearing, Allegiant asserted it has no intention of operating the Remora Oil Unit but only
sought to plug it because unplugged, it presented a danger to Texas water sheds and the
neighboring San Antonio River, which was only fifteen to twenty yards away. Allegiant
argued the TNRC allows operators to cross a person’s property for the purposes of
plugging or unplugging an oil and gas well, and without Section 89.044 the Railroad
“Commission would be unable to plug wells because they would not be able to cross
people’s property to access wells.” Allegiant also argued general easement by necessity
principles also applied, which would allow it to cross onto the Dierlam Ranch to plug the
well on the Wright Land to prevent an environmental hazard.
Mark Clayton Dierlam is an owner and manager of the McFaddin Ranch. He
testified that between the years 1996 and June 2015, Dierlam was paid over $120,000
by Allegiant’s predecessors for access to the Dierlam Ranch to operate the Remora Oil
Unit on Wright Land. 2 Allegiant’s predecessors used a road on the Dierlam Ranch “with
payment and an agreement to use it” from 1996 until 2015. Once the well became shut
in, the payments to Dierlam stopped. Dierlam stated that it began negotiating with
Allegiant in 2021 for access to the Dierlam Ranch, but they could not come to an
agreement regarding financial terms.
2 This was a split between monthly payments and “up-front” payments.
3
Lee Lawrence Lawson testified that he currently works for Allegiant as the “HSE
director” and handles all permits with the Railroad Commission for drilling and producing
wells. Allegiant became the operator of the Remora Oil Unit in February 2021. Right after
purchase, Lawson and Mark traveled through the Dierlam Ranch in Mark’s vehicle and
visited the Remora Oil Unit. Lawson was looking for environmental issues and evaluating
the status of the Remora Oil Unit to make sure Allegiant complied with the Railroad
Commission requirements. Lawson stated he, Mark, and Joshua Credeur, a plugging
contractor, visited the Remora Oil Unit again in August 2022. However, Dierlam
subsequently refused to allow access to the Dierlam Ranch; thus, Allegiant was unable
to plug the well.
According to Lawson, leaving a well unplugged can lead to catastrophic failure and
the fact that the Remora Oil Unit was so close to the San Antonio River meant it had a
higher risk than other wells. If Allegiant is unable to plug this well, it risks getting its
“operatorship pulled,” run “default with the [Railroad] Commission,” and would incur
approximately $50 million in losses. Because the Remora Oil Unit has been inactive for
over ten years, Allegiant must remove all surface equipment to plug it. Lawson opined
that Allegiant may cross the Dierlam Ranch solely for the purpose of plugging the Remora
Oil Unit just like the Railroad Commission has the right to access the Remora Oil Unit for
being “in violation of [Rule] 2 A.”
Patrick Cassidy stated that he has been a landman for Allegiant since 2006, and
this is the first time Allegiant has been unable to reach an agreement for access to a well.
Credeur testified that he works for Allegiant as a petroleum engineer. Credeur
stated Allegiant investigated at least four to five different access routes, but all routes
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require Allegiant to access the Dierlam Ranch in some way. Allegiant even used satellite
technology to confirm an access route that would only require removing downed trees
and low-level growth on the Dierlam Ranch. Access to the Dierlam Ranch would be much
less invasive than other potential access routes, most protective of individual landowners,
least destructive, and least expensive. According to Credeur, Allegiant even considered
using the San Antonio River but “there was no way to get a 55,000 pound rig off of a
barge” into the river. Regarding the pollution risk, Credeur testified that leaving the
Remora Oil Unit unplugged could result in surface pollution in the form of saltwater or
crude, and currently, Allegiant was unsure whether the Remora Oil Unit had holes in it.
Additionally, Credeur stated that wells produce sludge, sand, and chemical emulsions,
and because the chemical tank in question has deteriorated over time with UV ultraviolet
light, if the tank were to bust, it would environmentally pollute the groundwater.
The trial court made the following statements:
• “So if you have a landlocked tract, you’re saying that they can’t get in and
get out to do what the State law requires them to do?”
• “[Y]ou are saying that basically a person who has a well here is at the mercy
of everybody else to determine whether or not they can get in and comply
with the law of plugging that well?”
• “Mercy is exactly the term . . . it sounds to me like it’s a matter of, okay, for
$10 million bucks I’ll let you use this road into this tract and . . . . well, I don’t
have $10 million bucks even if I wanted to give it to you, you’re saying that
that is still the surrounding landowner’s right essentially to name their own
price and if you don’t like it, tough, you can’t go in and comply with state
law.”
• “[B]ecause the Defendant didn’t come in and pay whatever it is your client
demanded to let them cross into the property and comply with state law
that—that your client basically can sit there and stop the Defendant in this
case from complying with state law because your client’s not willing to pay
the bounty demanded by your client.”
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• “[Y]our position is the surface owners have the ability to thwart the State of
Texas in its—in its duties to protect the public from pollution?”
Two days later, the trial court signed its order denying Dierlam’s application for
temporary injunction. The order also denied Allegiant’s application for temporary
injunction and “[a]ll other temporary relief requested incident to the competing motions for
temporary injunction not expressly granted” within the order. It found that Section 89.044
of the TNRC authorizes Allegiant’s entry onto Dierlam Ranch for the purposes set forth in
the statute. See TEX. NAT. RES. CODE § 89.044. Dierlam appealed.
This Court requested findings of fact and conclusions of law from the trial court.
The trial court made the following conclusions of law: Dierlam did not establish that it
would suffer irreparable damages if the temporary injunctive relief sought was denied;
Allegiant has the right to enter into Dierlam’s property for the purpose of “plugging or
replugging” a well that has not been properly plugged pursuant to Section 89.044 of the
TNRC; and Allegiant is not liable for any damages that may occur as a result of “acts
done or omitted to be done by them or each of them in a good-faith effort” in relation to
plugging the well pursuant to Section 89.045 of the TNRC.
II. TEMPORARY INJUNCTION
Dierlam argues the trial court erred by denying its application for temporary
injunction because there was a permanent injunction in place and because Allegiant had
no right to access the Dierlam Ranch.
A. Standard of Review
“A temporary injunction’s purpose is to preserve the status quo of the litigation’s
subject matter pending a trial on the merits.” Butnaru v. Ford Motor Co., 84 S.W.3d 198,
204 (Tex. 2002). A trial court will only issue a temporary injunction if the applicant
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establishes: (1) a cause of action against the defendant; (2) a probable right to the relief
sought; and (3) a probable, imminent, and irreparable injury in the interim if the injunction
is not granted. 3 Id. We review a trial court’s grant or denial of a temporary injunction for
abuse of discretion. Henry v. Cox, 520 S.W.3d 28, 33 (Tex. 2017). Under an abuse of
discretion standard, we cannot overrule the trial court’s decision unless the trial court
acted unreasonably or in an arbitrary manner, without reference to guiding rules or
principles. Butnaru, 84 S.W.3d at 211. We cannot substitute our judgment for the trial
court’s reasonable judgment even if we would have reached a contrary conclusion. Id.
“The trial court does not abuse its discretion if some evidence reasonably supports the
trial court’s decision.” Id. (citation omitted).
B. Applicable Law
The TNRC “declared that the protection of water and land of the state against
pollution or the escape of oil or gas is in the public interest.” TEX. NAT. RES. CODE § 89.001.
It exercises “the police power of the state . . . to provide additional means . . . so that
wells . . . that have been abandoned . . . may be plugged, replugged, or repaired by or
under the authority and direction of the commission.” Id. Section 89.044, entitled “Right
to Enter on Land,” provides that the Railroad Commission “its employees or agents, the
operator, or the nonoperator, on proper identification, may enter the land of another for
the purpose of plugging or replugging a well that has not been properly plugged.” TEX.
NAT. RES. CODE § 89.044(a).
“An undefined statutory term is given its ordinary meaning unless ‘a different or
more precise definition is apparent from the term’s use in the context of the statute.’” R.R.
3 The parties only dispute the second and third elements, so we need not discuss the first element.
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Comm’n of Tex. v. Gulf Energy Expl. Corp., 482 S.W.3d 559, 568 (Tex. 2016) (citing
TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011)).
C. Dierlam’s Application for Temporary Injunction
Dierlam argues Allegiant is not authorized to enter the Dierlam Ranch because
Section 89.044 authorizes access onto land of a “surface owner” while Allegiant argues
Section 89.044 authorizes entry onto the Dierlam Ranch for the purpose of plugging the
Remora Oil Unit. The parties emphasize no Railroad Commission decision or Texas court
has interpretated the phrase “land of another.”
Section 89.044(a) expressly authorizes the Railroad Commission, its employees
or agents, the operator or the nonoperator to “enter the land of another”—not merely the
surface owner’s land—for the purpose of plugging or replugging a well. The statute does
not limit the right of entry to only the surface owner as Dierlam suggests. Instead, the
statute uses the broad phrase “land of another” and in doing so does not restrict whose
land may be entered for the purpose of plugging a well. To the contrary, subsection (c)
includes protection specifically for the owner of a surface estate: “a person authorized to
enter land under this section may not take an action that would prevent the owner of the
surface estate of the land from accessing the land.” TEX. NAT. RES. CODE § 89.044(c); see
also id. § 89.043 (providing that the Railroad Commission shall restore the surface of the
tract of land when plugging a well “unless the owner of the surface estate” declines to
have it restored); id. § 89.045 (granting civil liability immunity to the “owner of the surface
estate”); id. § 89.048 (providing that the “owner of an interest in the surface estate” on
which an orphaned well is located may contract with a “well plugger to plug the well”).
Thus, the Legislature expressly used the phrase “owner of the surface estate”
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within this statute when it chose to protect that class of landowner, but it did not narrow
the class of persons whose land may be entered under subsection (a). See id.
§ 89.044(a). In the absence of contrary authority, the plain statutory text controls. See
R.R. Comm’n, 482 S.W.3d at 568. Limiting the right of entry to only the surface owner
would be injecting words into the statute, frustrating the public purpose of the state’s
police power as stated in Section 89.001. See TEX. NAT. RES. CODE § 89.001.
Based on the foregoing, Dierlam has not shown that it conclusively established it
has a probable right to relief. See Henry, 520 S.W.3d at 33. Therefore, we need not
determine whether Dierlam provided any evidence of “a probable, imminent, and
irreparable injury in the interim if the injunction is not granted.” See id. Accordingly, the
trial court did not abuse its discretion in denying Dierlam’s application for temporary
injunction, and we overrule Dierlam’s issues. See Butnaru, 84 S.W.3d at 204.
D. Allegiant’s Application for Temporary Injunction
Dierlam also argues the trial court erred by implicitly granting Allegiant’s application
for a temporary injunction. However, the trial court expressly denied Allegiant’s
application for a temporary injunction. 4 Further, the order also expressly denied “[a]ll other
temporary relief requested incident to the competing motions for temporary injunction not
expressly granted” within the order. Because the trial court expressly denied Allegiant’s
request for temporary injunction, we overrule Dierlam’s issues regarding the trial court’s
granting of Allegiant’s application for temporary injunction.
4 However, the order gave Allegiant the right to seek further injunctive relief if necessary.
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III. CONCLUSION
We affirm the judgment of the trial court. 5
L. ARON PEÑA JR.
Justice
Delivered and filed on the
1st day of October, 2026.
5 We deny Dierlam’s motion for emergency stay, and we deny Allegiant’s motion for partial dismissal.
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