..
Axnw- 11,TEXAS
FVILL WI&SON
A-RNEY a3ENERAx. November 18, 1960
Honorable E. E. Coons Opinion No. WW-961
.ZountyAttorney
Sherman County Fle: Whether the Commissioners'
Stratford, Texas Court may require gas plpe-
line companies to move or
lower their pipelines along
or aorouu pub110 roads whlok
are to be paved wlthout pay-
Duar Mr. Coons: lng compensationtherefor.
You have requested the opinion of this offioe on
the following question:
May the Commlsslone~s~Court of Shsr-
man County require gas pipeline companies
to move or lower their pipelines along or
aoross pub110 roads whloh are to be paved
without paying compensationtheraiart
In the caee of State v. City .of Austin, %X.
- 331 S.W. 26 737 (1960) the.SupremeCourt of rm8 w&8
confrontedwith the questlo; of the validity of an enectmpnt
of the Legislaturewhich provided that the relocation of
utility faoilltles necessitatedby the improvement of hlgh-
ways establishedas a part of the National SvfJtem of Inter-
state and Defense Hlghwaye be made by the utility at the oost
and expenae of'the State. In upholdlng this statute the
Court, in the courue of Its opinion, also stated the 18W
applicable to the situationralaed by rour qUestlO&
At page 741 of the opinion we find it stated:
"In the absence of assumption by the
state of part of the expense, it Is clear
that respondentscould be required to-Fe-
move at their own expense any Installations
owned by them and located In public rights
of way whenever such relocation Is made.
necessary by highway improvements. See
City of San Antonio v. Bexar Metropolitan
Mr. E/E. Coons, Page 2 (WW-96;L)
Water District, Tex. Civ. App., 309 S.W.
26 491 (wr. ref.); City of San Antonio v.
San Ant&lo St. R. Co., 15 Tex. Clv. App.
1, 39 S.W. 136 (wr. ref.); State of
lp;my; v. United States, 6 Cir., 256
. As pointed out in the Bexar
MktropolltanWater District case, the main
purposes of roaik and streets are for
travel and traneportatlon. While public
utllltles may use the same for laying their
lines, such us+ IS Subject to reasonable
regulationby either the state, the county
or the clty,~as the case may be. The
utility may always be required, In the valid
exercise of the police power by proper
governmentalauthority,to remove or adjust
(ita installationsto meet the need8 of the
public for t.raveland transportation."
Quoting further from the same zprce and page:
,I Many city ordknoes a8 well
a8 ?fevk&'of our statutes authorizing
utiSlty oompanlesand municipal oorpora-
tions to erect their lines along'and upon
'public roads end streets stipulate that
the owner of the facilitymay be required
to relocate the same at its own expense
80 as to peimlt road and street lmprove-
ments. See Articles 1433, 1433a, 1436a,
and 1436b, Vernon's Ann. Tex. Clv. Stat.
These statutes and ordlnane@s express the
public policy of the state a8 it existed
at,the time of their adoption. . . ."
Article 1436b of Vernon.1sAnnotated Texas Civil
Statutes, es referred to by the Court, read8 In part a8
follows:
"Section 1. Any person, firm or oor-
poration or Incorporatedcity or town en-
gaged.ln the bUslne88 of transportingor
distributinggas for public consumption
shall have the power to playand maintain
pipes, mains, conductors and other faolli-
ties used for oonduotlnggas through, under,
pp. E. E. Coons, Page 3 (m-961)
along, across Bnd over all pub,llchlgh-
ways, public roads, public streets and
alleys, and public waters within this
State; provided that within the corpor-
ate limits of an Incorporatedcity or
Incorporatedtown such right shall be
dependent upon the consent and subject
to the dlrectlon,ofIts governing body.
Any such person, firm or corporation or
incorporatedcity or town Shall notify
the State Highway Commission or the
CommissionersCourt having 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-wayof any state
highway or county road outside the limits
of an IncorporatedcltJror Incorporated
town, whereupon the Highway CznmI88lon or
the ConrmlssionersCourt, If It so de8Ires,
may designate the place upon the rlght-of-
way where the 881116
shall be laid. The
poratlon or Incorporatedcity or town and
specifying the facility or facllltles to be
moved and Indicatingthe place on the new
right-of-waywhere such facility or faolll-
ties may be placed. Such person, firm or
corporation or Incorporatedclty.or town
shall replace the grade and surface Of such
road or highway at its own expense."
(%phaSiS added)
It is our opinion that the language quoted from State
v. City of Austin, su ra and the plain unequivocal language
-%A at your question be answered In the
Article 143bb requires
affirmative.
Mr. E. E. Coons, Page 4 (w-961)
You are therefore advised that the Commissioners1
Court of Sherman.County may require the gas pipeline in ques-
tion to be moved or lowered by the pipeline company at the
expense of such OompanieSby giving notiOe,in compliance
with Article 1436b.
SUMMARY
The Commlssloners~Court of Sherman County,
Texas, is authorized to require gas pipeline
companie8,WhOSeline8 i?Unalong or across
public roads which are to be paved,to move
or lower such pipelines at their own expense
and without reimbursementfrom the State.
Yours very truly,
WILL WILSON
Attorney General of Texas
BY
WoS:nrm..I
APPROV&:
.
OPINION COMMITTEE
w. v. Geppert, chairman
w. Ray scrmggs
Harris Tolcr
Llnward Shivers
B. H. Tlmmlns, Jr.
BY: Leonard Pasamore