The Attorney’ General of Texas
F&ruary 21, 1986
JIM MAllOX
AttorneyGeneral
Supreme Court Building Honorable E. Bruce Curry Opinion No. .JM-432
P. 0. BOX 12546 District Attorney
Austin, TX. 76711-2546 521 Earl Garrett Street Rc: Whether a county may leaec
51214752501
Kerrville, Texas 78028 the right to cross county right-
Telex 9101674-1367
Telecopier 512/4750266
of-way to a pipeline company
Dear Mr. Curry:
714 Jackson, Suite 700
Dallas, TX. 75202.4506
You inform us that the Gillespie County Commissioners Court has
2141742.6944
established a poHcy whereby a pipeline company is required to obtain
a permit from the court before running pipelines under public roads or
4624 Alberta Ave., Suite 160 highways located within the county. Your letter also indicates that
El Paso, TX. 79905.2793 the county's policy includes provisions whereby the county nay lease
915/533-3464 such right-of-way crossings to a pipeline company in order to receive
annual payments. :Cn that regard, you ask whether a county has the
1001 Texas. Suite 7W
authority to lease such right-of-way crossings to a comon carrier
Houston, TX. 77002-3111 subject to chapter 111 of the Natural Resources Code.
71312255666
The legislature, having declared pipeline companies to be common
carriers, has grmted them the right to lay pipelines "along, across,
605 Broadway, Suite 312
Lubbock, TX. 79401-3479
or under" public mads or highways. See Nat. Res. Code §§lll.O20(a),
6061747-5238 111.002. A count:7 commissioners courthas been granted the limited
authority to app'cove and establish guidelines to regulate these
pipelines. See Nr.t. Res. Code 5111.020(b)(4). Section 111.020(b)(4)
4309 N. Tenth. Suite S
provides that:
McAtlen. TX. 76501-1665
512/882-4547
(b) l?he right to run a pipeline or telegraph
or telephone line along, across, or over a public
200 Main Plaza, Suite 400
road or highwaJlmay be exercised only on condition
San Antonio. TX. 76205-2797
that: -
512/2254191
(4) no pipes or pipelines are laid parallel
An Equal OppOrtUnityI wit'h and on a public highway closer than 15
Affirmative Action Employer feet from the improved section of the high-
wag except with the approval and under the
dimction of the commissioners court of the
Giaty in which rhe public highway is
E&ed
---* (Emphasis added).
Thus, the Gillesp:Le County Commissioners Court may require the
pipeline company t:o obtain a permit which is reasonably related
to carrying out the authority explicitly granted in section
111.020(b)(4). --
See Tex. Const. art. V, 918; Cauales v. Laughlin, 214
p. 1980
Ronorable E. Bruce Curry - l?age2 (JM-432)
S.W.2d 451, 453 (Tex. 1941;). Section 111.020(c) requires the common
carrier to compensate the "county or road district" for any damage
done to the public road or highway. See Nat. Res. Code §lll.O?O(c).
We believe that these provisions do notgrant the county cormnissioners
court the additional authority to lease right-of-way crossings to a
common carrier pipeline company.
E!oreover,common carrlcra are regulated exclusively by the Texas
Railroad Commission under chapter 111 of the Natural Resource Code.
See Nat. Res. Code, 4111.COl et seq. Section 111.020(d) expressly
zides that a common carrier, in order to acquire the right of
constructing pipelines along, across, or under public roads and
highways must consent to bo regulated by chapter 111. Such consent is
"in consideration of the rights acquired." This language directly
implies that the exchange o,frights to construct for the power of the
state to regulate is both rutual and exclusive, and no other power is
conferred on the county to lease or convey the realty in question.
Nat. Res. Code §111.02O(~j3. Thus, article 1577, V.T.C.S., which
establishes a procedure whereby a county commissioners court may lease
county owned real estate, dl>esnot apply to common carrier pipelines.
See
- V.T.C.S. art. 1577 (establishes procedures for public auction).
SUMMARY
Section lll.C2O(b)(4) does not authorize a
county commissioners court to lease right-of-way
crossings to pipc:linecompanies. which are common
carriers subject, to chapter 111 of the Texas
Natural Resource (lode.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attormy General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee:
Prepared by Tony Guillory
Assistant Attorney General
p. 1981