Miss Edna Cisneros       Opinion No, WW-1090
County Attorney
Willacy County          Re:   Whether the Commissioner's
Raymondville, Texas           Court, without paying com-
                              pensation therefor, can re-
                              quire a gas pipeline company
                              to encase in metal and vent
                              its pipeline under the.facts
Dear Miss Clsneros:           stated.
         You have requested the opinion of this office on
the~following question:
              "May the Commissioner's Court, with-
         out paying compensation therefor, require
         a gas pipeline company to incase In metal
         and vent its pipeline under and across a
         road which is to be paved, not only across
         the right-of-way of such road In existence
         at the time such pipeline was laid, but in
         -addition, to incase In metal and vent such
         pipeline lying across and under the contig-
         uous right-of-way thereafter acquired~by
         the County for the purpose of widening such
         road?"
          As we understand your question and the factual sit-
uation which prompted its submission, the pipeline in question,
at the time it was laid, crossed beneath an existlng roadway
which is under the jurisdiction of the Commissioner's Court of
Willacy County and sometime thereafter the Commissioner's Court'
acquired additional right-of-way for the purpose of widening
and improving the existing roadway. The contemplated improve-
ment of the roadway requires that the pipeline be enclosed in
metal casing and vented.
          The situation raised by the facts presented requires
that we consider the pipeline that must be encased and vented
in two distinct catagorles, to wit:  (1) that portion under the
existing roadway and (2) that portion under the additional
Miss Edna Cisneros, Page 2 (WW-1090)


right-of-way which was acquired after the pipeline was in
place.
          Having placed its transmission lines under the
existing roadway subsequent to the effective date of Article
1436b of Vernon's Civil Statutes, the plpeline company in
question is subject to the provisions and requirements of
this Article, which provides in part as follows:
               I,     The public agency havlng jur-
          isdiction or control of a highway or coun-
          ty road, that is, the Highway Commission
          or the Commissioners Court, as the case
          may be, may require any such person, firm or
          corporation or incorporated city or town at
          its own expense to relocate its pipes, mains,
          conductors or other fixtures for conducting
          gas on a state highway or county road outside
          the limits of an incorporated city or incor-
          porated town so as to permit the widening ore
          changing of traffic lanes, by giving thirty
          (30) days written notice to such person; firm
          or corporation or incorporated city or town
          and,speclfylng the facility or facilities to
          be moved and indicating the place on the new
          right-of-way where such facility or facilities
          may be placed. Such person, firm or corpora-
          tion or incorporated city or town shall re-
          place the grade and surface of such road or
          highway at its own expense."
          Consequently, it is our opinion that the portion of
the pipeline which passes under the roadway as it existed prior
to the acquisition of the additional right-of-way Is governed
by our holding in W-961 (November 18, 1960) and the language
therein quoted from State v. City of Austin,     Tex.      331
S.W.2d 737 (1960) and you are hereby advised that the pipeline
company can be required to encase and vent this portion of its
pipeline at its own expense and without compensation from the
county.
          The remaining portion of the pipeline affected by
the planned improvement and widening program, i.e., that por-
tion passing under the additional right-of-way acquired by
the county in order to effectuate the widening and improvement
of the roadway, presents a different questlon.
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    Miss Edna Cisneros, Page 3 (WW-1090)


              As your request indicates, the pipeline company had
    acquired an easement for its pipeline under the property ad-
    jacent to the existing roadway prior to the time such property
    was acquired by the county as part of the right-of-way.
              Section 17 of Article I of the Constitution of the
    State of Texas provides that:
                  "No person's property shall be taken,
             damaged or destroyed for or applied to
             public use without adequate compensation
             being made, unless by the consent of such
             person; . . .'
              Since the existing easement of the pipeline company
    was not condemned or otherwise acquired by the county at the
    time the additional right-of-way in which it now lies was ac-
    quired, any requirement that this portion of,the pipeline be
    encased and vented would be a taking of the pipeline company's
    easement and is prohibited by Section 17 of Article I of the
    Constitution of the State of Texas unless ade uate compensation
    is paid to the pipeline company. See WW-125 9May 22, 1957) and
    WW-1004 (March 6, 1961).
              Therefore, you are advised, that in our opinionthe
    pipeline company in question cannot be re~quiredto encase and
    vent that portion of Its pipeline which lies within a prior
    easement under the property acquired by the county for roadway
    Improvement and widening purposes without compensating the
    pipeline company therefor.

                            SUMMARY
             The Commissioner's Court Is authorized to
             require a pipeline company to encase and
             vent that portion of its pipeline which
             crosses under an existing roadway at the
             pipeline company's own expense and without
             reimbursement, but the Commissioner's
             Court cannot require the pipeline company
             to encase and vent that portion of its
             pipeline which lies in a pre-existing
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    Miss Edna Cisneros, Page 4 (WW-1090)


                easement under property acquired for the
                improvement of such roadway without com-
                pensating the pipeline company therefor.
                                    Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas




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    APPROVED:
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    John Reeves
    John Leonarz
    Linward Shivers
    Marvin F. Sentell
    REVIEWEDFOR THE ATTORNEYGENERAL
    BY:   Morgan Nesbitt
