                         December        1,     1988




Honorable Kent A. Caperton      Opinion No.            JM-988
Chairman
Committee on Jurisprudence      Re: Whether the power of emin-
Texas State Senate              ent domain     attaches to     a
P. 0. Box 12068                 limited partnership     with   a
Austin, Texas 78711             corporate general partner where
                                the partnership owns and oper-
                                ates a refined petroleum   prod-
                                ucts pipeline   (RQ-1560)

Dear Senator Caperton:

     You ask:

        Does a limited partnership with a corporate
        general partner that owns and operates    a
        refined petroleum products pipeline    have
        eminent domain rights?

You do not indicate in your request for an opinion or in the
correspondence  accompanying  your   request whether     each
partner in the limited partnership is a corporation.       We
conclude that, if each partner in the limited partnership is
a corporation, the limited partnership does have the power
of eminent domain. However, if even one of the partners    is
an entity other than a corporation, the limited partnership
has no such power.

     Section 111.019 of the Natural Resources Code expressly
confers the right of eminent domain on "common carriers":

           (a) Common carriers have the                 right   and
        power of eminent domain.

           (b) In the exercise of the power of
        eminent domain granted under the provisions
        of Subsection (a) of this section, a common
        carrier may enter on and condemn the land,
        rights-of-way, easements, and property of any
        person or corporation    necessary  for   the




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        construction, maintenance,   or    operation        of
        the common carrier pipeline.

     The phrase  tfcommon carrier"  is     defined     at        section
111.002 of the Natural Resources Code:

        A person is a common carrier subject to         the
        provisions of this chapter if it:

            (1) owns, operates, or manages a pipeline
        or any part of a pipeline in the State of
        Texas   for   the transportation    of  crude
        petroleum to or for the public for hire,   or
        engages in the business of transporting crude
        petroleum by pipeline;

            (2) owns, operates, or manages a pipeline
        or any part of a pipeline in the State of
        Texas   for   the transportation    of   crude
        petroleum to or for the public for hire and
        the pipeline is constructed or maintained on,
        over, or under a public road or highway,    or
        is an entity   in favor of whom the right of
        eminent domain exists;

            (3) owns, operates, or manages a pipeline
        or any part of a pipeline in the State of
        Texas   for   the transportation    of    crude
        petroleum to or for the public for hire which
        is or may be constructed,       operated,    or
        maintained across, on, along, over, or under
        the right-of-way of a railroad,   corporation,
        or other common carrier required by law to
        transport crude     petroleum  as   a   common
        carrier:

            (4) under lease, contract of purchase,
        agreement to buy or sell, or other agreement
        or arrangement of any kind, owns, operates,
        manages,   or    participates    in   ownership,
        operation, or management      of a pipeline    or
        part of a pipeline in the State of Texas      for
        the transportation of crude petroleum, bought
        of others,    from an oil field or place of
        production     within   this    state   to    any
        distributing, refining,    or marketing    center
        or reshipping point within this state:

           (5) owns, operates, or manages, wholly  or
        partially, pipelines  for the transportation




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        Honorable Kent A. Caperton - Page 3    (JM-988)




                for hire of coal in whatever form or of    any
                mixture  of substances  including coal      in
                whatever form: or

                    (6) owns, operates, or manages, wholly   or
                partially, pipelines   for the transportation
                of carbon dioxide in whatever form to or for
                the public for hire, but only if such person
                files    with   the   commission    a   written
                acceptance of the provisions of this chapter
                expressly agreeing that, in consideration    of
                the rights acquired,    it becomes    a common
                carrier subject to the duties and obligations
                conferred   or   imposed by    this    chapter.
                (Emphasis added.)

             Section 111.002 of the Natural Resources     Code by its
        terms appears to limit the meaning    of "common carrier"   to
        carriers of crude petroleum,    as opposed to carriers      of
        refined petroleum.  The brief submitted with your request
        suggests that Phillins Piueline co. v. Woods, 610 S.W.2d
        204 (Tex. Civ. App. - Houston '[14th Dist.] 1980, writ   ref'd
        n.r.e.) [hereinafter Pm],        stands for the proposition
        that carriers of refined petroleum       products   have been
        conferred eminent domain power as well, not by a section of
        the Natural Resources Code, but by a provision of the Texas
        Business Corporation Act. We agree.

             In Phillins, a pipeline company sought to condemn  real
        property for the purpose of constructing a pipeline that was
        to carry an ethane-propane mixture, a refined product.   The
        lower court agreed with the landowners challenging       the
        condemnation proceedings that the pipeline company did not
        have the power of eminent domain because it was not a
        carrier of crude petroleum.  The court of appeals overruled
        the lower court on this issue because of a specific
        provision of the Texas Business Corporation Act that confers
        the power of eminent domain on carriers other than carriers
        of crude petroleum.  Phillins, 610 S.W.2d at 206.

             Article 2.01 B(3)(b) of the Texas Business   Corporation
        Act provides the following:

                   B. No corporation may adopt this Act or be
                organized under this Act or obtain authority
                to transact business in this State under this
                Act:

                   .   .   .   .
P




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Honorable Kent A. Caperton - Page 4         (JM-988)




            (3) If   among its    purposes  for   the
        transaction of business in this State, there
        is included, however worded, a combination of
        the two businesses  listed in either of the
        following:

            .   .   .   .

            (b) The business         of engaging         in   the
        petroleum      oil producing       business      in this
        State and the business of engaging directly
        in the oil pipe line business in this State:
        provided, however, that a corporation engaged
        in the oil producing        business in this State
        which owns or operates private pipe lines in
        and about its refineries, fields or stations
        or which owns stock of corporations               engaged
        in the oil pipe line business             shall not be
        deemed to be engaging directly in the oil
        pipe line business           in this State:           and
        provided that any corvoration,             or orouv of
        COrDOratiOnS     aCtirK  in   DartnerShiV     or    other
        combination with other corvorations.              enoaoed
        as a common carrier in the vine line business
        for transvortino        oil, oil vroducts.           qas,
        carbon dioxide, salt brine, fuller's earth,
        sand, clav, liauified minerals               or     other
        mineral solutions,       shall have all of the
        riahts and oowers           conferred bv          Section
        111.019 throush 111.022. Natural Resources
        Q&g.       (Emphasis added.)1

     Subsection B(3)(b) of article 2.01, Texas Business
Corporation  Act, was contained     in the original      1955
enactment of the Business Corporation Act in substantially
the same form as it now reads. A 1973 amendment     corrected
the citation to the relevant sections of the Natural
Resources Code after that code was recodified.   By the very
terms of subsection  B(3)(b) of  article 2.01,   it is clear
that certain pipeline carriers that carry products      other
than crude petroleum are conferred the same power of eminent
domain as carriers of crude petroleum.         The remaining



      1. We note that corporations that are created for the
purpose of both producing     oil and transporting    it by
pipeline are governed, not by the Texas Business Corporation
Act, but by the Natural Resources Code.                             --.




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Honorable Kent A. Caperton - Page 5     (JM-988)




question is whether  such a common carrier organized as      a
limited partnership may exercise that power.

     The relevant proviso of subsection B(3)(b) of article
2.01, Texas Business Corporation Act, confers the power of
eminent domain on a common carrier of, inter alia, oil
products,   organized  as *'any corporation,  or group    of
corporations acting in partnership or other combination with
other corporations."   For the reasons discussed below, we
construe subsection   B(3)(b) of article 2.01 of the Texas
Business Corporation Act to permit an otherwise    qualified
carrier organized as a limited partnership with a corporate
general partner to exercise the power of eminent domain,
only if each partner of such a limited partnership itself is
a corporation.

     First, a maxim of statutory construction states that
the express mention of one thing implies exclusion         of
another. State v. Mauritz-Wells    Co., 175 S.W.2d 238  (Tex.
1943) ; Harris Countv v. Dowlearn, 489 S.W.Zd 140 (Tex. Civ.
APP. - Houston [14th Dist.] 1972, writ ref'd n.r.e.).     The
express mention in subsection B(3)(b) of article 2.01, Texas
Business Corporation Act, of corporations and partnerships
or other business combinations    consisting of corporations
indicates that the legislature intended that each partner in
a limited partnership exercising the power of eminent domain
itself be a corporation.

     Second, and even more     compelling, Texas courts always
have required that the power of eminent domain be     conferred
specifically by the legislature: the power of eminent domain
will not be conferred from a doubtful inference.      Burch v.
Citv of San Antonio,       518 S.W.2d 540, 544    (Tex. 1975);
Coastal States Gas Producins Co. v. Pate, 309 S.W.Zd       828,
831 (Tex. 1958). Statutes that confer the power of eminent
domain are construed strictly in favor of the landowner
and against the entity attempting to exercise such power.
Coastal States Gas Producina Co. v. Pate, suvra; Tennsasco
Gas Gatherino Co. v. Fischer, 653 S.W.2d 469 (Tex. Civ. App.
- Corpus Christi 1983, writ ref'd n.r.e.).

     Accordingly, we construe subsection B(3)(b) of article
2.01, Texas Business Corporation  Act, to require that each
partner of a partnership   that  is an otherwise   qualified
carrier of oil products   and that exercises the power of
eminent domain itself be a corporation.




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Honorable Kent A. Caperton - Page 6     (JM-988)




                       SUMMARY

             A limited partnership   with a corporate
        general partner  that owns and operates       a
        refined petroleum    products    pipeline    '
        conferred  the   power of     eminent   doma::
        pursuant to subsection    B(3)(b) of article
        2.01 of the Texas Corporation A&, but only
        if each partner, whether limited or general,
        is itself a corporation.




                                   LA III
                                     Very truly yo r ,

                                          A.&
                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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