Untitled Texas Attorney General Opinion

.

THEA~ORNEY GENERAL
OFTEXAS

Senator George Parkhouse Opinion No. WW-84
The Senate of The State of Texas
Austin, Texas Re: Constitutionality of Committee
Substitute for Senate Bill 10 1.
Dear Senator Parkhouse:

This is in reply to your letter of March 13, 1957, in which you
re,quest our opinion as to the constitutionality of Committee Substitute for
Senate Bill 101.

This Opinion supplements Opinion No. WW-29. The proposed
legislation reviewed in Opinion No. WW-29 was entitled “Committee Sub-
stitute for S. B. No. 10 1”. It was concluded in that opinion that the proposed
act was unconstitutional. Amendments to cure the constitutional objections
were then made to the bill. This bill, with the amendments, and which is
the subject matter of this Opinion No. WW-84~is also entitled “New Committee
Substitute for S. B. No. 101”. This explanation is made to avoid possible
confusion between the two bills, both of which have the same S. B. number.

SUMMARY OF COMMITTEE SUBSTITUTE FOR S.B. 101

Section 1 is the name of the Act, “Texas Gas for Irrigation Act.”

Section 2 declares the policy, intention and purposes of the
Legislature. In substance these are declared to be to save the soil for the
basic industry of agriculture by eliminating erosion and deleterious effects
of wind, drought and excessive rainfall through using a portion of available
natural gas to pump water from underground reservoirs for irrigation.

Section 3 contains a definition of terms.

Section 4 provides that in order to accomplish the purposes
that every mineral operator shall make available upon request of the sur-
face operator an amount of gas produced from the land not to exceed one-
eighth of the total gas production.
 Section 5 provides that the Railroad Commission shall derer-
mine. in event of dispute between mineral operator and surface operator,
as to the necessi,ty of whether ga s shoul,d be made available, and if so, the
price ar,d terms.

Section 6 provides that all required pipes, connections and
equipment shall be at the sole expense and risk of surface operator. Mineral
operator shall not be li.abl,e for damage to property.

Section 7 provides for appeals from rulings of the order ->f the
Railroad Commi,ssion.

Section 8 provides for commence,ment of proceedings be;cre
the Railroad Commission,

Secti,on 9 provides that mineral operators shall not be required
to furnish gas for use off the premises from which it is~ produced; that, actions
of the mineral operator Ian compl,ying with the provisions~hereof shall not, of
itself, make the mineral operator a public utility.

Secti,on 10 provides that. pending determination of a caus,e before
the Railroad Commi,ssion, the mineral operator shall furnish. gas to surface
operator upon request on temporary terms as may be prescrib,ed,by the Rail,-
road Commission.

Secti,on 11 p+ovides for the placing of liability ,upon the minerrl
operator for failing to furnish gas at the request of the surface operator.

Section 12 repeal,s zII Isws or parts of laws in conflict herewith.

Section 13 is a savings or severability clause.

Section 14 declares an emergency and suspends the constltu-
tion,al reading rule and provides that the Act shall take effect from the date
of its passages.

The main questions for our determination are (1) whether the
Bil.1 is violative of Article 1, Sectlon 17, of the Texas Constitution, relating
to the taking of property for public use, (2) whether the Bill violates Article
1, Section 16, of the Texas Constitution, relating t’o the impairment oi obli-
gations of contract: (3) whethe,r the Bill violates the due process clause of
r.

Senator George Barkhouse, Page 3 (WW-84)

the 14th Amendment of the LJ. S. Constitution and Article 1, Section 19, of
the Texas Constitution, which is the due process clause.

Also involved is whether the Act is within the provisions of
Article 16, Section 59(a) of the Texas Constitution, relating to the conserva-
tion and the development of the natural resources of this State. (See footnote.)

The mo,st difficult constitutional question involved in the proposed
Act is believed to be that relating to the taking of property.

Although the power of eminent domain is perhaps most frequently
exercised by a governmental unit, it may also be given to corporate bodies
or individuals. 16a C.J.S., Constitutional Law, Section 646, page 921. The
power of eminent domain extends to real property, all kinds of personal pro-
perty, and intangible or incorporeal rights. 29 C. J.S., Eminent Domain,
Section 65, page 853.

Defining a “public use n is one that has given the courts much
trouble, and upon which there is a great amount of conflict. As a general
statement, some courts have treated the term “public use” as synonymous
with “public benefit”, “public convenience” or “public advantage”, whereas
other courts have a more restricted meaning of “public use”, defining it to
mean use by the public, and not that the use may incidentally have a public
benefit. 29 C.J.S., Eminent Domain, Section 31, page 823, Ann. 54 A.L.R. 7.

Since it is the Constitution that prohibits the taking of private
property for other than public use, it is for the courts to determine whether
the particular use to which the condemned property is to be put is or is not
an authorized taking. Dallas Cotton Mills v. Industrial Company, 296 S.W.
503 (Tex.Comm.App. 1927). Therefore, in order to determine what is an

Article 16, Section 59(a): The conservation and development of all of the
natural resources of this State, including the control, storing, preservation
and distribution of its storm and flood waters, the waters of its rivers and
streams, for irrigation, ~ . . the reclamation and irrigation of its arid, semi-
arid and other lands needing irrigation, . . . and the preservation and conser-
vation of all such natural resources of the land are each and all hereby de-
clared public rights and duties; and the Legislature shall pass all such laws
as may be appropriate thereto.
,Cenator George Parkhouse, Page 4 (WW-84)

authorized taking, resort must Se had to the cases rather than to definitions.
A review of the Texas decision shows that the Texas rule has been that
called the “narrow” or “restricted” definition as to what is a public use,
although there has been ? tendency in recent cases to expand such definition.

In Borden v. Trespelacios Rice & Irrigation Company, 98 Tex.
494, 86 S.W. 11 (1905), affirmed 204 U.S. 667, 27 S.Ct. 785, 51 L.Ed. 671,
the issue was the validity of a statute permitting the condemnation of private
land by a private corporation for an irrigation canal. The Court sustained
the condemnation proceeding on the ground that those along the canal would
have the right to take water therefrom, which made the taking for a pu.blic
use. In this connection the Court stated:

“The contention is that the laws in question do not
secure any such uses to the public, or to any part of it, but
that they authorize the creation of purely private corpora-
tions . . . for carrying on a business wholly private, and
attempt to empower them to take private property for use
in such businesses wholly private, without being required
to assume any duty to, or to respect any right in, the public.
If this were true, we should feel constrained to sustain the
attack upon those provisions granting the right of condem-
nation, for we are not inclined to accept that liberal defini-
tion of the phrase ‘public use’ adopted by some authorities,
which make it mean no more than the public welfare or
good, and under which almost any kind of extensive business
which promotes the prosperity and comfort of the country
might be aided by the power of eminent domain.”

This case was relied upon in subsequent Texas decisions in
determining whether the proposed use was “public” or ‘private”. In Leathers
v. Craig, 228 S.W. 995 (Tex.Civ.App. 1921) (’involving a condemnation for a
road for use by seven citizens), the Court stated:

“There is no law i,n this State which would authorize
the taking of private property of one individual for private
use or convenience of another individual, or sets of individ-
uals, as is here attempted. That the lands of one citizen may
be taken under the right of eminent domain for public high-
ways is well settled; but the right of eminent domain implies
that the purpose for which it may be exercise~d be a public
Senator George Parkhouse, Page 5 (WW-84)

one and not a mere private one. A ‘public use’ is one
concerned with the whole community in which it exists,
as contra distinguished from a particular individual or
a number of individuals. It seems not to be allowable,
therefore, to authorize private roads be laid out across
the land of unwilling parties by an exercise of eminent
domain.”

In Brazes River Conservation & R. District v. Costello, 135
Tex. 307, 143 S,W.2d 577 (1940), the Court said:

“The history of the many laws enacted by the Legis-
lature of this State relating to the exercise of eminent do-
main clearly shows that it is the policy of the Legislature
to liberalize the exercise of that power, rather than to
restri,ct it . . .”

This case involved the constitutionality of the statutes authorizing creation
of conservation and reclamation districts. This statute was held constitu-
tional, the Court relying on Article 16, Section 59, of the Texas Constitution,
this provision being adopted in 1917.

The Court cited Subdivision (b) of this constitutional provision
as follows:

‘“That conservation and reclamation districts are
to have such powers of government and with the authority
to exercise such rights, privileges and functions . . . as
may be conferred by law.”

In Housing Authority of the City of Dallas v. Higginbothom,
135 Tex. 158, 143 S.W.2d 79 (1940), it appears that the Texas Court has
perhaps adopted a broader view of what is a public use so as to include
elements of “public benefit” or *public advantage”. In this case the Court
sustained the validity of the Texas Housing Authorities Law, Article 1269k.
which authorized the taking of private land for the purpose of building low-
rent housing units. The contention was made that the statute was unconsti-
tutional as it constituted a taking of private property not for public use within
the meaning of Article 1, Section 17; that the construction would not be for
the public generall.y, but for only a selected few low-income groups of in-
dividuals. It was held, however, that the purpose for which the land was
Senator George Parkhouse, Page 6 (WW-84)

being taken was constitutional. It is not clear in the decision whether it
was held that the land was being taken for a “public use” or a use which
would be of a public “benefit”. The Court did conclude, however, “We are
thoroughly convinced that the use to which the housing projects will be
devoted is a public one.” In its opinion the Court stated:

“We have cited the above Texas cases to illustrate
the trend of the decisions in this jurisdiction in the deter-
mination of what is a public use. A review of the cited cases
from our jurisdiction demonstrates that this Court has adopt-
ed a liberal view concerning what is or what is not a public
use.”

In Atwood v. Willacy County Navigation District, 271 S.W.2d 137
(Tex.Civ.App. 1954, error ref’d n.r.e.), appeal dism’d 76 S.Ct. 66, the validity
of the statutes authorizing the condemnation of private property in the develop-
ment of port areas was before the courts. It was contended that the act was
unconstitutional in that it permitted the taking of land to be rented or leased
to individuals. In refu,ting this claim, the Court stated:

“We hold that the acquisition of land for the purpose
of leasing the same as industrial sites in the proximity of
a port is reasonably necessary to the successful operation
of such port. Such use comes well within the definition of
“public use’ as laid down in the case of Housing Authority
of the City of Dallas v. Higginbothom, 135 Tex. 158, 143
S.W.2d 79. e . o Our holding is likewise supported by the
Federal decision. ” Citing cases.

It was also held in this decision that the taking of the land in question was
authorized under Article 16, Section 59, which authorizes the creation of
such navigation districts.

The above cases involved primarily whether the taking was a
“public usel or a “private use” under Article 1, Section 17, and the 14th
Amendment. In considering the validity of the proposed Act, the provisions
of Article 16, Section 59(a) must also be considered. It is an elementary
rule of construction that all parts of the constitution, and statutes, are to
be construed together so as to give effect to each part. That oil, gas, water
and soil are natural resources is unquestioned. It is believed that the great
bulk of the natural resources are privately owned and are subject to use of
Senator George Parkhouse, Page 7 (WW-84)

the i,ndividual, citizen Ir hi,s capacity as an individual. The Constitution
directs that pr-:va?e, p~opesty not, be taken except for a publ,ic use, the
Constitution also directs f:har the Legislature conserve natural resources,
making no distlPc:ion as to ,ihe ownership, public or private, of the natural
resources.

The Courts have had lIttIe difficulty in upholdIng the use of
eminent, domail 1~. ai,d OF irrigation and drainage problems. A number of
states have cons71tu:,iond’ A p,*,nv?sions relating to the u,se of lan,d Ian connec-
ti,on with the developmer:? of na.tural resou,rces. As observed by the Idaho
Court ir Po?la- case3 arising under copsstitutions
:lke Idaho. Coio:ado, and other western St.ates, wh;,ch make
the ---
characrer (emphasis addydj of the u,se. whether strictly
pub!:c or ht.herwi ie, the c-?.i-rion oi the right to c-xe~rcise the
pWVer.^~

A!,+hoiigh it may be said that, %h:s statement was dictum since
the Court. held +ha+, *he li;je contempl,a?ed by t.he condemnor was in a strict
sense a pvb!,:c ::se, +h:s I;bservaiioq is be!+ved to be valid in those States
having a consti?u,:iondl pro.;ision similar to the Texas consti,?utioral provi-
sion. Artic1.e 16, Section 59(a).

The Cour:s have had !it~t.le diffjculty ir upholding the uje of
eminent doma,:n in a+d o< :rrigation. dra:nage. spur t,racks i,o private plants,
pri~vate roads 3rd !rgging r<>ads, ‘ised 10 cor.r.ectior~ with the dr,elopmen!
ot natural resouTcPs~ _-
Iv Str:rk!and v. Highlard Boy Gold Minir%g Company,
Senator George Parkhouse, Page 8 (WW-84)

200 U.S. 527, 26 S.Ct. 301, 50 L.Ed. 581 (1906), a condemnation of a right
of way for an aerial bucket line was upheld against a claim that it was
taking property for private use. The Utah statute permitted the right of
eminent; domain for such purpose to aid in mining. In Clark v. Nash, 198
U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085, the problem involved was the consti-
tutionalj,ty of a Utah statute which permitted the condemnation of land for
the irrigation of other lands belonging to a private person. Such a purpose
had been declared as a permi,tted use of eminent domain by the statutes of
Utah, and the Utah Cou,rt had upheld condemnation for such purpose. The
U.S. Supreme Court affirmed the Utah Court’s holding. In Fallbrook Irri-
gation District v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369 (1896),
the Supreme Court affirmed a California decision which had held that irri-
gat.ion of arid lands was i.n accordance with California statute which stated
this to be a public purpose. The Supreme Court stated, LI+ . . that the fact
that the water is limited to the one landowner is not a fatal objection to the
legislat.ion.”

In Clark v. Nash, w, in discussing public use in connection
with one individual havi,ng the right to condemn for an irrigation ditch for
the condemnor”s sole benefit, the Court stated:

“This Court has stated that what is a public use may
frequently and largely depend upon the facts surrounding
the SUbJeCt, and we have said that the people of a State, as
also its courts, must in the nature of things be more fami-
liar with such facts and with a necessity and occasion for
the i.rrigation, oi land, than can anyone be who is a stranger
to the soil of the State, and that such knowledge and famili-
ari.ty must have their due weight with the State Courts. . . .
We are, however, as we have said, disposed to agree with
the Utah Court with regard to the validity of the State statute,
which provides, under the circumstances stated in the act for
the condemnation of the land of one individual for the purpose
of allowing another in.di.vidual to obtain water from a stream
in which he has an interest, to irrigate his land, which other-
wise would remain absolutely valueless. . ~ . But we do not
desire to be understood by this decision as approving of the
broad proposition that private property may be taken in all
cases where the taking may promote the public interest and
tend to develop the natural resources of the State. We simply
say that in this parti,cudar case, and upon the facts stated in
the finding of the Court, having reference to the conditions
Senator George Parkhouse, Page 9 (WW-84)

already stated, we are of the opinion that the use is a public
one, although the taking of the right of way is for the purpose
simply of thereby obtaining the water for an individual, where
it is absolutely necessary to enable him to make any use what-
ever of his land, and which will be valuable and fertile only if
water can be obta,ined.”

Many States have enacted statutes regulating many phases of the
oil and gas industry. These statutes have been attacked as permitting the
taking of private property without due process of law, among other unconsti-
tutional grounds alleged. Almost without exception, these statutes have been
sustained, where the stated purpose has been to conserve natural resources
and a reasonable relation has been found between the stated purpose and the
method which the Legislature prescribed to achieve such result.

In Brown v. Humble Oil & Refining Company, 126 Tex. 296,
83 S.W.2d 935, 87 S.W.Zd 1069 (1935). the Texas Supreme Court, in uphold-
ing the spacing rule, stated, “Section 59(a), Article 16, of the Texas Consti-
tutiondirects the Legislature to do whatever is necessary for the conserva-
tion of natural resources. The Legislature has undertaken to comply with
this provision of the Constitution. Therefore, the Railroad Commission
acting under valid laws, has ample authority, under both the Constitution
and the police power to prevent waste and conserve the mineral interests
of this State. This rule is supported by a host of authorities” Citing cases.

That the U. S. Supreme Court will uphold the State Legislature
and State Supreme Court in its determination of what is or what is not neces-
sary in the conservation of its natural resources is evident in the case of
Railroad Commission v. Rowan k Nichols Oil Company, 310 U.S. 573, 60
S.Ct. 1021, 84 L.Ed. 1368, amended 311 U.S. 614, 61 S.Ct. 66, 85 L-Ed. 473
(1940). In this case the Plaintiff appealed from an ordrr of the Railroad
Commission setting the all.owable for the East Texas Field on a per-well
basis. The Plaintiff complained of the order, saying that it was denying him
an opportunity to produce his oi.1, and that his oil would be drained and taken
by adjoining leases; that his uncompensated drainage was an unconstitutional
confiscation of his property. This order was upheld, the Supreme Court
stating, u ~ ~ ~ but such cases are only episodes in the evolution of adjust-
ments among private interests and in reconciliation of all these private
interests with the underlying public interest in such a vital source of energy
for our days as oil.”
Senator George Parkhouse, Page 10 (WW-84)

The Railroad Commission has power to shut down completely
all production from an oil and gas field, if necessary, to prevent waste and
conserve natural resources. Railroad Commission v. Sterling Oil & Refin-
ing Company, 147 Tex. 547, 218 S.W.2d 415 (1949). The city ordinance pro-
hibiting the drilling of but one well to a city block is constitutional and does
not violate the due process clause. Marrs v. City of Oxford, 32 F.2d 134,
(CA-S, 1929, cert. denied 280 U.S. 573).

In Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d
941 (1944), the Court set aside an allowable order for the McElroy Field
in West Texas. The Court sustained, however, the power of the Railroad
Commission to prescribe an allowab1.e order, but held that such an order
was not reasonable under the circumstances there presented. In discuss-
ing Article 16, Section 59(a), of the Constitution, the Court stated that the
Legislature must act under this provision of the Constitution in relation to
the other provisions of the Constitution, which are above discussed.

In many of these decisions regulating oil and gas, the effect has
been t.o restri.ct the use to which the gas has been put; the amount of produc-
tion; the number and location of wells and in some situations there has been
a complete denial of a right to drill a well. All of these regulations have re-
stricted the free and unfettered use and control of private property, and in a
sense is a “‘taking of property”. That these regulations and enforcement of
conservation measures are for the benefit of the public at large is well settled.
Bandini Petroleum Company V- Superior Court, 284 U.S. 8, 52 S.Ct. 103,
76 L.Ed. 136 (1931).

The Texas Legi,slature, in accordance with Article 16, Section
59(a), has directed the creation of water conservation districts, navigation
districts, and have passed other acts for the conservation of water and soil.
The Legislature has ako passed statutes whose purpose has been to conserve
oil and gas. Apparently this act is the first instance where the Legislature
has proposed that one natural resource be utilized to capture and make avail-
able another natural resource for the purpose of the better utilization and
conservation of stil.1 another natural resource, the soil. That the State has
an interest in the conservation of all natural resources is beyond question.
In our opinion such act is within the constitutional provisions of Article 16,
Section 59(a), and will not constitute a taking of private property for a purely
private use in violation of Article 1, Section 17, and the 14th Amendment. If
the State Court upholds a particular use as not being violative of the “taking”
provisions of its own statute, the U. S. Supreme Court will accept this as not
Senator George Parkhouse, Page 11 (WW-84)

being violative of the 14th Amendment. Hairston Y. Danville St W. Ry. Co.,
208 U.S. 598, 28 S.Ct. 331, 52 L.Ed. 637 (1908). Here the Court stated,
“No case is recalled where this Court has condemned as a violation of-the
14th Amendment a taking upheld by the State Court as a taking for public
uses in conformity with its’ laws.”

In our opinion the proposed act satisfies the procedural require-
ments of Article 1, Section’l9, relating to the taking of property by due pro-
cess. The act provides for a hearing before the designated administrative
body for a determination of the necessity of the taking, and the terms and
conditions thereof if such is deemed necessary for the conservation of water
and soil. The decision of this administrative body can be appealed to the
Court for a judicial review of its action. This satisfies the constitutional
requirement. Voght v. Bexar County, 23 S.W. 1045 (Tex.Civ.App. 1893, error
ref’d.).

In our opinion the proposed act does not violate Article 1, Section
16, relating to impairment of contracts. The proposed act does not seek to
act directly upon any particular contract, touching contracts only incidentally.
Henderson Company v. Thompson, 57 S.Ct. 447, 300 U.S. 258, 81 L.Ed. 632
(1937). In this case the statute prohibited the use of sweet gas for the manu-
facture of carbon black. The Plaintiff contended, among other things, that
it impaired the obligation of a contract in which he was a party to buy and to
sell sweet gas for the prohibited use; however, the statute was sustained as
being constitutional.

In our opinion the provision permitting those who are using the
surface to have a right to demand a portion of the gas produced from the
same surface is a reasonable classification. This group has been found by
the Legislature, if enacted, to encompass a sufficiently large group to aid
in the conservation of soil. This is not an unreasonable classification as to
those who may require gas and as to those who must supply gas as to make
the act unconstitutional. Fort Worth & D. C. Ry. Co. v. Welch, 183 S.W.2d
730 (Tex.Civ.App. 1944, error ref’d).

The proposed legislation would not be an unwarranted interfer-
ence with interstate commerce. Cities Service Gas Company v. Peerless
Oil & Gas Company, 203 Okla. 35, 220 P.2d 279 (1950), affirmed 340 U.S.
179, 71 S.Ct. 215, 95 L.Ed. 156 (1950).

An act similar to the proposed legislation was enacted in
Oklahoma in 1955. A principal differenc.e between the Oklahoma act and
Senator George Parkhouse, Page 12 (WW-84)

the proposed legislation is that in Oklahoma it was de.clared that such
natural gas should be made available for such use in preference to any
other use, there being no restriction as to the amount which could be
taken by the surface operato,r. The Texas act limits the amount of gas
which the surface operator may demand and buy to one-eighth of that
produced, and then the Railroad Commission is to determine controversies
as to the necessity for such gas. Although this’appears to be a material
distinction, this was not the reason given in the two decisions in which this
statute has been before the Co~urts.

In Phillips Petroleum Company v. Corporation Commission of
Oklahoma, decided by the Oklahoma Supreme Court on November 20, 1956,
Volume 27, “The Journal”, 1921 (not yet officially reported), the Oklahoma
Court held the act to be unconstitutional. Three Justices dissented. In this
case Phillips contended that the act converted it into a public utility in vio-
lation of the due process clause of the State and Federal Constitutions. The
Oklahoma act expressly provided to the contrary, that the gas producer was
not to be considered a public utility. But the Court held that the effect of
the act was to require Phillips *to engage in a field of service not heretofore
performed in an area not heretofore served. We consider it immaterial that
the service is limited to a small area and a few people.” The Oklahoma
Court also held that this constituted an unauthorized taking of property which
was accomplished without eminent domain. As of the date of this Opinion, an
application fo’r rehearing i.s pending in the Oklahoma Supreme Court.

The same act was before the Court in Phillips Petroleum Com-
pany v. Ray C. Jones, et al., 147 Fed.Supp. 122, (D.C. Okla. 1955). The Court
which heard this case was a th~ree justice district court. The Federal Court
held that the act complained of was constitutional. At the time this decision
was written, the Oklahoma Supreme Court had not yet written its decision.
The Federal Court stated:

“Beyond question, the act’s basic objective lies within
the pale of local police power authority. Nothing is more
universally recognized than the right which adheres the State
to conserve, protect and develop its resources for the people’s
general welfare and prosperity . . , to achieve this end, the
enjoyment of indivi.dual property rights may be curtailed,
or in some instances completely denied. In the act before us,
the Oklahoma Legislature has summoned one subterranean
natural resource to assist in the capture of another critically
.

Senator George Parkhouse, Page 13 (WW-84)

needed subsurface mineral for the use and benefit of the
State’s agricultural economy; and, if the act is given the
construction, discussed previously, it does not unconsti-
tutionally deprive a property without due process, impair
contractual rights, burden interstate commerce, or deprive
of equal protection of the laws. Inasmuch as the act is not
unconstitutional on its face, and since we cannot speculate
as to how it will be enforced in each indi~vidual case, our
inquiry is at an end.”

We have examined the Oklahoma Constitution, i.ncluding amend-
ments thereto through 1955. No provisions similar to the conservati,on pro-
vision (Sec. 16, Art. 59(a) ) of the Texas Constitution could be foun.d. It is
therefore assumed that the Oklahoma Legislature does not have the consti-
tutional powers in this regard as does the Texas Legislature.

In summary, the Texas Constituti~on prohibits a taking of private
property except for public use. By inference, and the courts have su held,
the Constitution prohibits the taking of private propert~y for the psr~vate use
of another individual. The question always present. is whether the new use
(after the condemnation) will be a public use or a private use. As stated,
the Courts in the various States are in conflict as to what is and .wh,at. is not
a public use, an exact deftnition being impossible. The final determinati.on
of this question is a judicial matter, and is not alone a matter of legislative
determination. A review of the Texas decisions shows that the earlier
Texas Courts were reluctant to define “public use” to mean a use which
would havea public advantage or a public benefit when it was being used by
an individual in his individual capacity as t,he new owner. The more recent
Texas Supreme Court decisions appear to be adopt,ing elements of ‘public
advantage”, “public convenience* or “public benefit” in its judicial defini-
tion of “public use”.

Also, Article 16,Section 59(a) of the Texas Constitution expressly
provides that the “preservation and conservation of all such natural resources
of the State are each and all hereby declared public rights and duties.” In
addition, that the use of all property, including property rights in water, oil,
pas and the land itself, is subject to the police power of the State is well settled.
Hudson County Water Company v. McCa&er, 209 U.S. 349, 28 S.Ct. 529, 52
L.Ed. 828 (1908); Lombard0 V. City of Dallas, 124 Tex. 1, 73 S.W.2d 475 (1934).
 - .

Senator George Parkhouse, Page 14 (WW-84)

Requiring a mtneral operator to eel1 gas to a eurfnca operator
ia a “taking” of property. In view of the later Texas Sup,rcme Court defini-
tionr of “public we”, the expre,ss provisiona of the Conrtitution declaring
conservation of natural resources to be “public right8 and duties* and the
police power of the State to regulate the use of all types of property, we
conclude that the proposed legislation is constitutional.

SUMMARY

Senate Bill 101, with the new Committee Substitute,
is, in our opinion, constitutional,

Very truly yours,

WILL WILSON
Attorney
General

Edwin P. Horncr
EPH :tiw Aeaistant

APPROVED: I

OPINION COMMITTEE
H. Grady Chandler, Chairman