The Attorney General of Texas
Octxker 15, 1980
MARKWHITE
Attorney General
Honorable John Ii. Poerner Opinion No. M-258
Chairman
Railroad Commission of Texas Re: Effect of Senate Bill 833
P. 0. Drawer 12967
Austin, Texas 78711
Dear Chairman Poerner:
You have requested an opinion on several questions about the effect of
Senate Bill 833, Acts 1979, 66th Legislature, chapter 216, section 1, at 473,
which amended article 6050, section 2, V.T.C.S. Article 6050, V.T.C.S., also
known as the Cox Act, with the portion repealed by Senate Bill 833 placed in
brackets, reads as follows:
The term ‘gas utility’ and public utility’ or
‘utility,’ as used in ~this stidivlsion, means and
includes persons, companies and private corporations,
their lessees, trustees, and receivers, ownirg, mana-
ging, operating, leasmg or controlling within this
State any wells, pipe lines, plant, property, equip-
ment, facility, franchise, license, or permit for either
one or more of the following kinds of business:
. . . .
2. Owning or operating or managing a pipe line
for the transportation or carrisge of natural gas,
whether for public hire or not, if any part of the right
of way for said line has been acquired, or may
hereafter be acquired by the exercise of the right of
eminent domain. [or if said line or any part thereof is
laid won, over or under any public road or highway of
this State, or street or alley of any municipality, or
the right of way of any railroad or other public
utility; including also any ratural gas utility
authorized by law to exercise the right of eminent
domain.1
Ycu ask, first, what kind of businesses or business entities have been
excluded from the definition of “gas utility” by the bilL The terms URity”,
“public utility”, and “gas utility” will be used interchangeably. Article 6050,
p. 816
. .
Honorable John H. ~oerner - Page Two (m-258)
V.T.C.S., as amended by Senate Bill 833, no longer contains language which would
make one in the business of transporting gas a utility solely because its gas pipelines
are upon or cross any public road or the right-of-way of any utility or railroad.
Article 6050, V.T.C.S., has not historically been construed as making any entity a
utility solely because it owned, operated, or managed pipelines which carried natural
gas across a public road or other right-of-way listed in section 2. To be a utility under
that section the entity must also be engaged in the business of transporting gas. A
producer may operate such pipelines as an incident of its production business without
affecting its status as a gas utility. Attorney General Opinions WW-926 (1960); WW-
625 (1959); G-3524-A (1942). Such a producer could be a utility under article 6050,
V.T.C.S., sections 1 and 3, but its operation of a pipeline across a public road would not
make it one. Similarly, a distributor of gas necessarily operates pipelines which
frequently cross roads and other rights-of-way. While such distributors are utilities,
thev are not made utilities bv section 2 of article 6050. V.T.C.S.. because thev are not
in