Untitled Texas Attorney General Opinion

Honorable D. C. Qreer State Highway Engineer Texas HI hway Department Austin 1& , Texas : Opinion No..C-139 Re: Authority of Highway Commission to refuse permits to place gas pipelines on highway right of ways. Dear Mr. Greer: In your letter request, you inquire If the Highway Commission has:dlsctietlonaryauthorit'y to grant &? refuse applicationsto permXt gas transportationpipelines.along highway right of ways that are not Intended to service the roadside development adjacent to the particular sectaon of highway Involved but are for the transportationof gas usually under considerablepressure to some other area where lo&al service might be Indicated. Article 1436b, Vernona' Civil Statutes, reads as follows: "Use of'roads and sttieetsIn distributionof gas" Section 1. 'Any person, firm or corporationor ln- corporated city or town engaged In the business of transporting or distributinggas for public consump- tion shall have the power to lay and maintain pipes, mains, conductors and other facilities used for con- d tingg th Rh, tinder;along. across and over a:"1publirhlg%&, public roads, public streets and alleys, and public waters,wlthl this State; pro- vided that HIthIn the~corporate1iGts of an lncor- poreted city br Incorporated lncorporetiedtown such right shall be dependent upon the consent and subject to the gov- erning body. &y such person, firm or corporation -685- Honorable D. C. Gre,er,page ! (Opinion No. CT139 or Incorporatedcity or town shall notify the State Highway Commission oP~%he:Qommlssloners' Court hav- ing jurisdiction,as the case may be, when It proposes to lay any such pipes, mains, conductors and other fixtures for conducting gas within the right of way of any State highway or county road outside the limits of en Incorporatedcity 6F Incorporatedtown, where- upon the Highway Commission or the Commlssloners~ Court, If It so desires, may designate the place upon the right of way where the same shall be ,lald. The public agency having jurisdictionor control of a highway or county road, that Is, the Highway Commis- sion or the Commissioners'Court, as the case may be, may require any such person, firm or corporation or Incorporatedcity or town at Its own expense to relocete.ltspipes, malnsj conductorsor~other f%x- tures for,conductlnggas on a state highway or county roed.outsldethe limit6 of an Incorporatedcity ore Incorporatedtown so as tb ~~~~~,~~,~~~~$io~r~a~~ changing of traffic lanea, written notice to such person, firm or corporation or Incorporatedc$ty or town and specifying th$ fa- cility or facilities to be moved and Indicating the place oh the new right,-of.waywhere such~~'fecllity T or facllltlesmay be placed., Such person, firm or corporationor Incorporatedcity ortown shall replace the grade and;surCaceof such,'road,or h~g~~~,at Its 8..,: '~ 'ownexpense.'I Yn arriving et leglsla$lvelhtent,'l~'lsof &mazy lm- portance tb:ascertain the purpose for which the'stetute was enacted." City of Meson v. West Texas Utllltles Co., 150 Tex. 18, 237 S.ti.2d273, (1951). The purpose clause of Article 1436b as passed by the legislature,June 21, 1951, Acts.1951, 52nd Legislature, p. 829, Chapter 470 Is as follows:. "An act to fecllltate~and encourage the distributionof gas ?&the lnhribltatitti of cltles~,,towns,villages end rural areas of the State of Texas by providing that any person, firm or~corporetlonor any Incorporatedcity or tOwn engaging In the business of transportingor dlstribut+g gas for public consumptionmay lay and malnt+ln pipes, mains, conductorsand,other f~cllltles used for conductinggas through, under, along, across and over all public highways, public roads, public streets and alleys,. . .' -6861 -t r- . Honorable D. C. Greer, page 3 (Opinion No. C-139) The purpose clause Indicates and the act itself specifi- cally provides that it is intended to apply to gas transporting companies as well as gas distributing companies who furnish gas for public consumption. The fact that they do not service the adjacent area Is, In our opinion, immaterial as this does not prevent the gas from being ultimately used for public consumption. The Statute does provide that the Highway Commission may, If it so desires, designate the place on the highway right of way where the pipeline may be placed and that it can require the party to relocate the pipeline so as to permit the widening or changing of traffic lanes. This Is the only authority granted to the Highway Commission under the Act. It follows that this office 1s of the opinion that a party In the business of transportation or distributing gas Intended for public consumption 1s authorized under Article 1436b V.C.S. to lay and maintain pipelines along state highway rightof ways after notifying the Highway Commission: SUMMARY The Highway Commission has no authority to refuse permits to place gas pipelines along highway right of ways, but the Commission may designate the place upon the right of way where the same shall be laid end may require the relocation of the pipeline so as to permit the widening or changing of traffic lanes. Yours very truly, WAGGONER CARR Attorney General of Texas BY: Assistant Attorney General APPROVED: Opinion Committee W. V. Geppert, Chairman F. William Colburn Grady Chandler Gordan Zuber William Hemphill "APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone' -687-