     ..




                           Axnw-   11,TEXAS
  FVILL WI&SON
A-RNEY    a3ENERAx.     November 18, 1960

   Honorable E. E. Coons      Opinion No. WW-961
   .ZountyAttorney
   Sherman County             Fle: Whether the Commissioners'
   Stratford, Texas                Court may require gas plpe-
                                   line companies to move or
                                   lower their pipelines along
                                   or aorouu pub110 roads whlok
                                   are to be paved wlthout pay-
   Duar Mr. Coons:                 lng compensationtherefor.
            You have requested the opinion of this offioe on
   the following question:
                  May the Commlsslone~s~Court of Shsr-
             man County require gas pipeline companies
             to move or lower their pipelines along or
             aoross pub110 roads whloh are to be paved
             without paying compensationtheraiart
              In the caee of State v. City .of Austin,    %X.
   -    331 S.W. 26 737 (1960) the.SupremeCourt of rm8      w&8
   confrontedwith the questlo; of the validity of an enectmpnt
   of the Legislaturewhich provided that the relocation of
   utility faoilltles necessitatedby the improvement of hlgh-
   ways establishedas a part of the National SvfJtem of Inter-
   state and Defense  Hlghwaye be made by the utility at the oost
   and expenae of'the State. In upholdlng this statute the
   Court, in the courue of Its opinion, also stated the 18W
   applicable to the situationralaed by rour qUestlO&
             At page 741 of the opinion we find it stated:
                  "In the absence of assumption by the
             state of part of the expense, it Is clear
             that respondentscould be required to-Fe-
             move at their own expense any Installations
             owned by them and located In public rights
             of way whenever such relocation Is made.
             necessary by highway improvements. See
             City of San Antonio v. Bexar Metropolitan
Mr. E/E. Coons, Page 2 (WW-96;L)


          Water District, Tex. Civ. App., 309 S.W.
          26 491 (wr. ref.); City of San Antonio v.
          San Ant&lo St. R. Co., 15 Tex. Clv. App.
          1, 39 S.W. 136 (wr. ref.); State of
          lp;my;    v. United States, 6 Cir., 256
                   . As pointed out in the Bexar
          MktropolltanWater District case, the main
         purposes of roaik and streets are for
          travel and traneportatlon. While public
         utllltles may use the same for laying their
          lines, such us+ IS Subject to reasonable
          regulationby either the state, the county
          or the clty,~as the case may be. The
         utility may always be required, In the valid
          exercise of the police power by proper
         governmentalauthority,to remove or adjust
         (ita installationsto meet the need8 of the
         public for t.raveland transportation."
          Quoting further from the same zprce and page:
               ,I     Many city ordknoes a8 well
          a8 ?fevk&'of our statutes authorizing
         utiSlty oompanlesand municipal oorpora-
          tions to erect their lines along'and upon
         'public roads end streets stipulate that
          the owner of the facilitymay be required
          to relocate the same at its own expense
          80 as to peimlt road and street lmprove-
         ments. See Articles 1433, 1433a, 1436a,
          and 1436b, Vernon's Ann. Tex. Clv. Stat.
          These statutes and ordlnane@s express the
          public policy of the state a8 it existed
          at,the time of their adoption. . . ."
          Article 1436b of Vernon.1sAnnotated Texas Civil
Statutes, es referred to by the Court, read8 In part a8
follows:
              "Section 1. Any person, firm or oor-
         poration or Incorporatedcity or town en-
         gaged.ln the bUslne88 of transportingor
         distributinggas for public consumption
         shall have the power to playand maintain
         pipes, mains, conductors and other faolli-
         ties used for oonduotlnggas through, under,
pp. E. E. Coons, Page 3 (m-961)


         along, across Bnd over all pub,llchlgh-
         ways, public roads, public streets and
         alleys, and public waters within this
         State; provided that within the corpor-
         ate limits of an Incorporatedcity or
         Incorporatedtown such right shall be
         dependent upon the consent and subject
         to the dlrectlon,ofIts governing body.
         Any such person, firm or corporation or
         incorporatedcity or town Shall notify
         the State Highway Commission or the
         CommissionersCourt having 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-wayof any state
         highway or county road outside the limits
         of an IncorporatedcltJror Incorporated
         town, whereupon the Highway CznmI88lon or
         the ConrmlssionersCourt, If It so de8Ires,
         may designate the place upon the rlght-of-
         way where the 881116
                            shall be laid. The




         poratlon or Incorporatedcity or town and
         specifying the facility or facllltles to be
         moved and Indicatingthe place on the new
         right-of-waywhere such facility or faolll-
         ties may be placed. Such person, firm or
         corporation or Incorporatedclty.or town
         shall replace the grade and surface Of such
         road or highway at its own expense."
         (%phaSiS added)
          It is our opinion that the language quoted from State
v. City of Austin, su ra and the plain unequivocal language
                   -%A at your question be answered In the
Article 143bb requires
affirmative.
Mr. E. E. Coons, Page 4 (w-961)


          You are therefore advised that the Commissioners1
Court of Sherman.County may require the gas pipeline in ques-
tion to be moved or lowered by the pipeline company at the
expense of such OompanieSby giving notiOe,in compliance
with Article 1436b.

                          SUMMARY
             The Commlssloners~Court of Sherman County,
             Texas, is authorized to require gas pipeline
             companie8,WhOSeline8 i?Unalong or across
             public roads which are to be paved,to move
             or lower such pipelines at their own expense
             and without reimbursementfrom the State.

                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas


                                BY


WoS:nrm..I

APPROV&:
       .
OPINION COMMITTEE
w. v. Geppert, chairman
w. Ray scrmggs
Harris Tolcr
Llnward Shivers
B. H. Tlmmlns, Jr.


BY: Leonard Pasamore
