December 1, 1988
Honorable Kent A. Caperton Opinion No. JM-988
Chairman
Committee on Jurisprudence Re: Whether the power of emin-
Texas State Senate ent domain attaches to a
P. 0. Box 12068 limited partnership with a
Austin, Texas 78711 corporate general partner where
the partnership owns and oper-
ates a refined petroleum prod-
ucts pipeline (RQ-1560)
Dear Senator Caperton:
You ask:
Does a limited partnership with a corporate
general partner that owns and operates a
refined petroleum products pipeline have
eminent domain rights?
You do not indicate in your request for an opinion or in the
correspondence accompanying your request whether each
partner in the limited partnership is a corporation. We
conclude that, if each partner in the limited partnership is
a corporation, the limited partnership does have the power
of eminent domain. However, if even one of the partners is
an entity other than a corporation, the limited partnership
has no such power.
Section 111.019 of the Natural Resources Code expressly
confers the right of eminent domain on "common carriers":
(a) Common carriers have the right and
power of eminent domain.
(b) In the exercise of the power of
eminent domain granted under the provisions
of Subsection (a) of this section, a common
carrier may enter on and condemn the land,
rights-of-way, easements, and property of any
person or corporation necessary for the
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Honorable Kent A. Caperton - Page 2 (JM-988)
construction, maintenance, or operation of
the common carrier pipeline.
The phrase tfcommon carrier" is defined at section
111.002 of the Natural Resources Code:
A person is a common carrier subject to the
provisions of this chapter if it:
(1) owns, operates, or manages a pipeline
or any part of a pipeline in the State of
Texas for the transportation of crude
petroleum to or for the public for hire, or
engages in the business of transporting crude
petroleum by pipeline;
(2) owns, operates, or manages a pipeline
or any part of a pipeline in the State of
Texas for the transportation of crude
petroleum to or for the public for hire and
the pipeline is constructed or maintained on,
over, or under a public road or highway, or
is an entity in favor of whom the right of
eminent domain exists;
(3) owns, operates, or manages a pipeline
or any part of a pipeline in the State of
Texas for the transportation of crude
petroleum to or for the public for hire which
is or may be constructed, operated, or
maintained across, on, along, over, or under
the right-of-way of a railroad, corporation,
or other common carrier required by law to
transport crude petroleum as a common
carrier:
(4) under lease, contract of purchase,
agreement to buy or sell, or other agreement
or arrangement of any kind, owns, operates,
manages, or participates in ownership,
operation, or management of a pipeline or
part of a pipeline in the State of Texas for
the transportation of crude petroleum, bought
of others, from an oil field or place of
production within this state to any
distributing, refining, or marketing center
or reshipping point within this state:
(5) owns, operates, or manages, wholly or
partially, pipelines for the transportation
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Honorable Kent A. Caperton - Page 3 (JM-988)
for hire of coal in whatever form or of any
mixture of substances including coal in
whatever form: or
(6) owns, operates, or manages, wholly or
partially, pipelines for the transportation
of carbon dioxide in whatever form to or for
the public for hire, but only if such person
files with the commission a written
acceptance of the provisions of this chapter
expressly agreeing that, in consideration of
the rights acquired, it becomes a common
carrier subject to the duties and obligations
conferred or imposed by this chapter.
(Emphasis added.)
Section 111.002 of the Natural Resources Code by its
terms appears to limit the meaning of "common carrier" to
carriers of crude petroleum, as opposed to carriers of
refined petroleum. The brief submitted with your request
suggests that Phillins Piueline co. v. Woods, 610 S.W.2d
204 (Tex. Civ. App. - Houston '[14th Dist.] 1980, writ ref'd
n.r.e.) [hereinafter Pm], stands for the proposition
that carriers of refined petroleum products have been
conferred eminent domain power as well, not by a section of
the Natural Resources Code, but by a provision of the Texas
Business Corporation Act. We agree.
In Phillins, a pipeline company sought to condemn real
property for the purpose of constructing a pipeline that was
to carry an ethane-propane mixture, a refined product. The
lower court agreed with the landowners challenging the
condemnation proceedings that the pipeline company did not
have the power of eminent domain because it was not a
carrier of crude petroleum. The court of appeals overruled
the lower court on this issue because of a specific
provision of the Texas Business Corporation Act that confers
the power of eminent domain on carriers other than carriers
of crude petroleum. Phillins, 610 S.W.2d at 206.
Article 2.01 B(3)(b) of the Texas Business Corporation
Act provides the following:
B. No corporation may adopt this Act or be
organized under this Act or obtain authority
to transact business in this State under this
Act:
. . . .
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Honorable Kent A. Caperton - Page 4 (JM-988)
(3) If among its purposes for the
transaction of business in this State, there
is included, however worded, a combination of
the two businesses listed in either of the
following:
. . . .
(b) The business of engaging in the
petroleum oil producing business in this
State and the business of engaging directly
in the oil pipe line business in this State:
provided, however, that a corporation engaged
in the oil producing business in this State
which owns or operates private pipe lines in
and about its refineries, fields or stations
or which owns stock of corporations engaged
in the oil pipe line business shall not be
deemed to be engaging directly in the oil
pipe line business in this State: and
provided that any corvoration, or orouv of
COrDOratiOnS aCtirK in DartnerShiV or other
combination with other corvorations. enoaoed
as a common carrier in the vine line business
for transvortino oil, oil vroducts. qas,
carbon dioxide, salt brine, fuller's earth,
sand, clav, liauified minerals or other
mineral solutions, shall have all of the
riahts and oowers conferred bv Section
111.019 throush 111.022. Natural Resources
Q&g. (Emphasis added.)1
Subsection B(3)(b) of article 2.01, Texas Business
Corporation Act, was contained in the original 1955
enactment of the Business Corporation Act in substantially
the same form as it now reads. A 1973 amendment corrected
the citation to the relevant sections of the Natural
Resources Code after that code was recodified. By the very
terms of subsection B(3)(b) of article 2.01, it is clear
that certain pipeline carriers that carry products other
than crude petroleum are conferred the same power of eminent
domain as carriers of crude petroleum. The remaining
1. We note that corporations that are created for the
purpose of both producing oil and transporting it by
pipeline are governed, not by the Texas Business Corporation
Act, but by the Natural Resources Code. --.
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Honorable Kent A. Caperton - Page 5 (JM-988)
question is whether such a common carrier organized as a
limited partnership may exercise that power.
The relevant proviso of subsection B(3)(b) of article
2.01, Texas Business Corporation Act, confers the power of
eminent domain on a common carrier of, inter alia, oil
products, organized as *'any corporation, or group of
corporations acting in partnership or other combination with
other corporations." For the reasons discussed below, we
construe subsection B(3)(b) of article 2.01 of the Texas
Business Corporation Act to permit an otherwise qualified
carrier organized as a limited partnership with a corporate
general partner to exercise the power of eminent domain,
only if each partner of such a limited partnership itself is
a corporation.
First, a maxim of statutory construction states that
the express mention of one thing implies exclusion of
another. State v. Mauritz-Wells Co., 175 S.W.2d 238 (Tex.
1943) ; Harris Countv v. Dowlearn, 489 S.W.Zd 140 (Tex. Civ.
APP. - Houston [14th Dist.] 1972, writ ref'd n.r.e.). The
express mention in subsection B(3)(b) of article 2.01, Texas
Business Corporation Act, of corporations and partnerships
or other business combinations consisting of corporations
indicates that the legislature intended that each partner in
a limited partnership exercising the power of eminent domain
itself be a corporation.
Second, and even more compelling, Texas courts always
have required that the power of eminent domain be conferred
specifically by the legislature: the power of eminent domain
will not be conferred from a doubtful inference. Burch v.
Citv of San Antonio, 518 S.W.2d 540, 544 (Tex. 1975);
Coastal States Gas Producins Co. v. Pate, 309 S.W.Zd 828,
831 (Tex. 1958). Statutes that confer the power of eminent
domain are construed strictly in favor of the landowner
and against the entity attempting to exercise such power.
Coastal States Gas Producina Co. v. Pate, suvra; Tennsasco
Gas Gatherino Co. v. Fischer, 653 S.W.2d 469 (Tex. Civ. App.
- Corpus Christi 1983, writ ref'd n.r.e.).
Accordingly, we construe subsection B(3)(b) of article
2.01, Texas Business Corporation Act, to require that each
partner of a partnership that is an otherwise qualified
carrier of oil products and that exercises the power of
eminent domain itself be a corporation.
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Honorable Kent A. Caperton - Page 6 (JM-988)
SUMMARY
A limited partnership with a corporate
general partner that owns and operates a
refined petroleum products pipeline '
conferred the power of eminent doma::
pursuant to subsection B(3)(b) of article
2.01 of the Texas Corporation A&, but only
if each partner, whether limited or general,
is itself a corporation.
LA III
Very truly yo r ,
A.&
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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