          THE    ATTORNEY                 GENERAL
                       ,OF      TEXAS
                   Aus~nv.      -78711


                             Sept.embsrlS~ 1972



Honorable C. J. Eden                 .,Opinion No. M-     1218
County Attorney
Stephens County.~                        Rer   Authority of the Com-
110 East -Walker                               missioners Court to
Breckenridge, Texas 76024                      grant a permit   to a
                                                corporation for use
                                               of,right-oi,lrlaysof
                                               county roads for
                                                locating pipeline for
                                               transmission
                                               .              ~of water
                                                in connection with
                                               water flood operation
Dear Mr. Eden:                                  in oil p.roduction.
            '.
          We have received your recent request, .accompanied
by your able brief, for an opinion of this department on the
following question:

          ,"Whether or not the Conmkssidners Court of
    Stephens County or.a Commissioner of said county
    has the authority.to grant a permit    or license
    to give consent for a Texas corporation, quali-
    fied.as a public utility, to lay pipeline along
    the right-of,-way of a county .road.for the trans-
    mission of water to a s,econd corporation, ,an oil
    produoing'corporation, for use.,,inwater-floe@
    operations :inzo'nne&ion with.the production of
    oil."

          Yourletter which~accompanied your request indicates
that the applicant is. "Gra-Pet Gas,Company, a~Texas ,corpora-
tion, which corporation is classified as a public utility. . . .'I

          An examination of the Articles of Incorporation of
the Gra-Pet Gas Company leaves considerable doubt in our mind
Hon. C. J. Eden, page 2,          (M-1218)




as to whether the purpose clause gives the corporation the
authority to buy and sell water.  Nor do we find in the arti-
cles any provision which would classify the corporation as a
public utility in connection with the sale of water.

          We are of then opinion that absent an amendment to
the articles to remedy the above stated deficiencies, the
Commissioners Court has no power to grant the permit, nor
doesthe corporation have the right to lay the lines.

          We are of the opinion, however, that a Texas corpor-
ation with authority to sell and transport water as a public
utility would have the right under Article 1433, Vernon's Civil
Statutes, so far as the county is concerned, to lay its lines
along the right of'way of a county road.

         Article 1433 reads as follows:

          "Any water corporation shall have the power
    to sell and furnish such quantities of water as
    may be required by the city, town or village
    where located for public or private buildings or
    for other purposes; and such corporation shall
    have the power to lay pipes, mains and conductors
    for conducting water through the streets, alleys,
    lanes and squares ,of any such city, town or vil-
    lage, with the consent of the governing body
    thereof, and under such regulations as it may
    prescribe. Such cornoration is further author-
    ized to lav its pipes, mains and conductors
    and,other~ fixtures forconductinq~water  throuqh,
    under, alonq, across and over all'public roads,
    streets and waters lvinq and situated outside
    the territorial limits of any such city: town,
    or villaqe in such manner as not to incommode
    the public in the use of such roads, streets
    and waters. Any such corporation shall notify
    the State Highway Commission, or the Commissioners
    Court having jurisdiction,' as the case may be,


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.




    Hon. C. J. Eden, page 3;             (~-1218)




          when. it.proposed-to build 1ines:along the right
          of way of any.State Highway, or county road;.
          outside the limits ofiany 'incorporated city'or
           town, whereupon theyHighway .Commission, or the
           Commissioners Court'may~, if. it SOS desires,~
          designate the'place alon      the,right,of,way:
          where such lines shall be constructed.       The
          public-agency, having' jurisdiction' or 'control
          of ~a highway:$or county'.ruad,:that isi the:.:.
          Highways Commission~orthe     Commiss%oners- Court,
                            :be, may-:require.any such cor-
         .:as:the,-:case~,may
          poration, at its 'bwn,,expense;:to.  relocate:its
           lines on a State Highway or county road outside
        ..the:.limits,
               _.._ ., ofan inaorporated..city:or~town; so
              ,,
          asto-permit~'the &$&ng~:,or      charqfng pf: trafffq.
        ,~:.lanes. by.giving thirty,,..QC)-days'~writtenhotic,e
          tosuch .corp&ati'on~'a&specifying .the'line or,'
        ..linesYto~~.be.moved,~~~and indicatirq the pla&on,
          the,ne~.~right of way,were ~such-line or lines.
         .mny,-.be,..placed..
                            'When deemed necessary'to:pre-     ':
         ,..serve.~the.public health;~ any company .or corpora-
         ,tion-chartered:under:the.-laws of this .State::for
          the purpose.lof.,,,constructing:waterworks  or' fur-."
          ni,shing water supply :ta'.anycity .ortown,. shall.
          have::the.right:of :emin'entdomain ~to condemn.'
         ,private property ~necessary.',for  the construction
          of supply reservoirs:~or standpipes~ for water
          work.:Actsl87.4, ‘p. 134; G.L. ,Vol. 8. p. '136:
          Acts'l909, .p. 8; Acts 1949.;.51st.Leg.. p. 137~0,
          ch. 622, S 1."     (Emphasis added.)              ,t:

              ,,Attorney.lOene~al'e'.Opi~ion,Nb;M-508 (1969) includes
    'the follautin~.:pete~ne~t'~
                              l&+aQ&:
                                               .
                "It has been recognized further that.it is
          in the public interest to,receive utility services:
          therefore; oublic;utilities~ are authorized to use
         ~the streets-and highways.:"Gtate v. City of',Austin'
          (State,v. ~City.of-,Dallasj; 160 Tex. '348; 331 S.W;2d
          131 (1960).



                                     -5974-
I




    Hon. C. J. Eden, page   4,       (M-1218)



              "The Legislature acting for the State has
         primary and plenary power to control public roads
         and streets. Recognizing this proposition,'the
         Court in State v. City of Dallas (State v. City
         of Austin), 319 S.W.2d 767 (Tex.Civ.App. 1959.
         aff. 331 S.W.2d 737) said at page 773:

                    'There can be no question but that the
              Legislature can lawfully,,permit cities and
              private corporations to place facilities
              in streets and highways to provide essential
              utility.service for the public, . . .'

             "The Legislature has seen fit to grant direct
        statutory authorization to public utilities to
        use public roads~.and~hiqhwavs. Some,such authority
        isfound in Articles 1416, .1433, 1436a and 143633,
        Vernon's Civil Statutes. .IGuld    therefore appear
        that Article 6203d, Vernon's Civil Statutes, would
        be rendered inapplicable to the q'uestion presented,
        since no additional grant of an easement would be
        necessary in order to entitle public utilities to
        take advantage of the right-of-way of existing
        public roadways. Accordingly, the Texas Board of
        Corrections would not be obligated to collect, nor
        public utilities required to pay, for placing lines
        in, on, along or across existing public roadways
        traversing State land under the custody and control
        of the Texas Department of Corrections."    (Emphasis
        added.)

              In view of all of the foregoing, a Texas water
    corporation, qualified as a public utility, hasthe  right to
    lay its pipes along the right of way of county roads pursuant
    to Article 1433.

              Note that we have held that under certain facts, the
    corporation has the right to lay its lines. This is under
    authority of the Legislature as expressed in Article 1433 and



                                 -5975-
Hon. C. J. Eden, page 5,          (M-1218)



is not pursuant .to any permit issued by the county. Indeed,
the statute does not provide for a permit  except as to where
on the right,of way the pipes shall be laid.

          We make the above statement for the reason that the
question hae~ been raised of ~claims that the abutting land
owners might have against the county where the county right
of way has been obtained by ,prescription, ,As we interpret
Article 1433, the county is not a party to any .action taken
by the corporation.   Such action is under authority of a
legislative.enactment, and the doctrine of sovereign immunity
protects the State from suit.

          With reference to the right under.a State statute
of the utility to lay its lines, see Heldt v. Southwestern
Bell Te1ephon.e Co., 482 S.W.Zd 352, 356 (Tex.Civ.App. 1972)
where the Court wrote, in what we co,nsider a'valid analogy:

           "Appellee. under the authority of Article
           'V.A.C.S.., is authorized to erect its poles,
    .~1464~,
     w~ires and other fixtures along, upon and across
     any public roads,, streets and waters-of Texas,
     subjeot only to the restriction that same must
     be done~ in a manner as not to incommode the pub-
     lic inthe use of such roads, streets, and waters;
     This is a right granted by the State.which cannot
     be denied by a municipality or city. . . ."
      (Emphasis added.)

                      SUMMARY
                      -------

          A Texas, corporation, provided it is quali-
     fied as a water corporation and as a public
     utility, has,the right under Article 1433,
     Vernon's Civil Statutes, to lay its pipes along
     the right of way of county roads, subject to
     the conditions set out in said Article.




                             -597 6-
.




    Hon. C. J. Eden, page 6,          (~-1218)



                                       truly yours,




    Prepared by James S. Swearingen
    Assistant Attorney Gener~al

    APPROVED:
    OPINION COMMITTEE

    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman

    Pat Bailey
    Jack Sparks
    Charles Lind
    Scott Garrison

    SAMUEL D. MCDANIEL
    Staff Legal Assistant

    ALFREDWALKER
    mecutive Assistant

    NOLA WHITE
    First Assistant




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