Honorable D. C. Qreer
State Highway Engineer
Texas HI hway Department
Austin 1& , Texas
                                         : Opinion No..C-139
                                       Re:   Authority of Highway
                                             Commission to refuse
                                             permits to place gas
                                             pipelines on highway
                                             right of ways.
Dear Mr. Greer:
     In your letter request, you inquire If the Highway Commission
has:dlsctietlonaryauthorit'y  to grant &? refuse applicationsto
permXt gas transportationpipelines.along highway right of ways
that are not Intended to service the roadside development adjacent
to the particular sectaon of highway Involved but are for the
transportationof gas usually under considerablepressure to some
other area where lo&al service   might be Indicated.
    Article 1436b, Vernona' Civil Statutes, reads as follows:
          "Use of'roads and sttieetsIn distributionof gas"
    Section 1. 'Any person, firm or corporationor ln-
    corporated city or town engaged In the business of
    transporting or distributinggas for public consump-
    tion shall have the power to lay and maintain pipes,
    mains, conductors and other facilities used for con-
    d tingg     th   Rh, tinder;along. across and over
    a:"1publirhlg%&,     public roads, public streets
    and alleys, and public waters,wlthl this State; pro-
    vided that HIthIn the~corporate1iGts of an lncor-
    poreted city br Incorporated
                    lncorporetiedtown such right shall
    be dependent upon the consent and subject to the gov-
    erning body. &y such person, firm or corporation



                               -685-
Honorable D. C. Gre,er,page ! (Opinion No. CT139

     or Incorporatedcity or town shall notify the State
     Highway Commission oP~%he:Qommlssloners' Court hav-
     ing jurisdiction,as the case may be, when It proposes
     to lay any such pipes, mains, conductors and other
     fixtures for conducting gas within the right of way
     of any State highway or county road outside the limits
     of en Incorporatedcity 6F Incorporatedtown, where-
     upon the Highway Commission or the Commlssloners~
     Court, If It so desires, may designate the place upon
     the right of way where the same shall be ,lald. The
     public agency having jurisdictionor control of a
     highway or county road, that Is, the Highway Commis-
     sion or the Commissioners'Court, as the case may
     be, may require any such person, firm or corporation
     or Incorporatedcity or town at Its own expense to
     relocete.ltspipes, malnsj conductorsor~other f%x-
     tures for,conductlnggas on a state highway or county
     roed.outsldethe limit6 of an Incorporatedcity ore
     Incorporatedtown so as tb ~~~~~,~~,~~~~$io~r~a~~
     changing of traffic lanea,
     written notice to such person, firm or corporation
     or Incorporatedc$ty or town and specifying th$ fa-
     cility or facilities to be moved and Indicating the
     place oh the new right,-of.waywhere such~~'fecllity T
     or facllltlesmay be placed., Such person, firm or
     corporationor Incorporatedcity ortown shall replace
     the grade and;surCaceof such,'road,or h~g~~~,at Its
                                                       8..,:
  '~ 'ownexpense.'I
     Yn arriving et leglsla$lvelhtent,'l~'lsof &mazy lm-
portance tb:ascertain the purpose for which the'stetute was
enacted." City of Meson v. West Texas Utllltles Co., 150 Tex.
18, 237 S.ti.2d273, (1951).
     The purpose clause of Article 1436b as passed by the
legislature,June 21, 1951, Acts.1951, 52nd Legislature,
p. 829, Chapter 470 Is as follows:.
         "An act to fecllltate~and encourage the
         distributionof gas ?&the lnhribltatitti
         of cltles~,,towns,villages end rural areas
         of the State of Texas by providing that
         any person, firm or~corporetlonor any
         Incorporatedcity or tOwn engaging In the
         business of transportingor dlstribut+g
         gas for public consumptionmay lay and
         malnt+ln pipes, mains, conductorsand,other
         f~cllltles used for conductinggas through,
         under, along, across and over all public
         highways, public roads, public streets and
         alleys,. . .'

                                -6861
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r-   .




              Honorable D. C. Greer, page 3 (Opinion No. C-139)


                   The purpose clause Indicates and the act itself specifi-
              cally provides that it is intended to apply to gas transporting
              companies as well as gas distributing companies who furnish gas
              for public consumption. The fact that they do not service the
              adjacent area Is, In our opinion, immaterial as this does not
              prevent the gas from being ultimately used for public consumption.
                   The Statute does provide that the Highway Commission may,
              If it so desires, designate the place on the highway right
              of way where the pipeline may be placed and that it can require
              the party to relocate the pipeline so as to permit the widening
              or changing of traffic lanes. This Is the only authority granted
              to the Highway Commission under the Act.
                   It follows that this office 1s of the opinion that a party
              In the business of transportation or distributing gas Intended
              for public consumption 1s authorized under Article 1436b V.C.S.
              to lay and maintain pipelines along state highway rightof ways
              after notifying the Highway Commission:
                                        SUMMARY
                   The Highway Commission has no authority to refuse permits
              to place gas pipelines along highway right of ways, but the
              Commission may designate the place upon the right of way where
              the same shall be laid end may require the relocation of the
              pipeline so as to permit the widening or changing of traffic
              lanes.
                                              Yours very truly,


                                              WAGGONER CARR
                                              Attorney General of Texas


                                        BY:

                                              Assistant Attorney General
              APPROVED:
              Opinion Committee
              W. V. Geppert, Chairman
              F. William Colburn
              Grady Chandler
              Gordan Zuber
              William Hemphill
              "APPROVED FOR THE ATTORNEY GENERAL
              BY: Stanton Stone'
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