                               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
