                           E               NEY        GENERAL
                                          TEXAS
                               AUSTIN.     TEXAS      7839'11
CHAWYORD     c. PLaR-rIN




                                         December 22, 1969



    Hon. Ben Ramsey, Chairman                 Opinion NO, M-542
    Railroad Commission of Texas
    P. 0. Drawer EE                           Re:     Whether the provisions of
    Capitol Station                                   Article 6053-1, V.C.S., give
    Austin, Texas   78711                             the Railroad Commission power
                                                      to adopt safety standards and
                                                      take other actions as provided
                                                      in that statute with respect
                                                      to gas and gas pipeline
                                                      facilities owned and operated
                                                      by incorporated cities',towns,
                                                      or villages within the State
    Dear Mr. Ramsey:                                  of Texas, and related question.
         Your recent letter requested the opinion of this office on the
    following two questions:
           "1.    Do the provisions of the above cited Act give
                  the Railroad Commission the power to prescribe
                  or adopt safety standards and take such other
                  actions as are stated in said Act with respect
                  to gas and gas pipeline facilities owned and/or
                  operated by incorporated cities, towns or villages
                  within the State of Texas.
           "2 .   If the answer to the proceeding question is
                  'yes', can the Attorney General on behalf of
                  the Railroad Commission of Texas impose the
                  provisions of Paragraph (C) of said Act against
                  an incorporated city, town or village, violating
                  such safety standards as may be prescribed or
                  adopted by this Commission pursuant to said Act."
         The provisions of the subject statute relevant to your first
    question are contained in Section 1, subparts (A) and (D) from which
    we quote as follows:



                                             -2587-
Hon. Ben Ramsey, page 2 (M-542)

          "(A) For the purpose of providing state control
          over safety standards and practices applicable
          to the transportation of gas and all gas pipeline
          facilities within the borders of this state to the
          maximum degree permissible under the federal
          Natural Gas Pipeline Safety Act of 1968, the Rail-
          road Commission of Texas is hereby expressly granted
          the power to describe or adopt by regulation safety
          standarde for all such transportation of gas and
          gas pipeline facilities which are not subject to
          exclusive federal control, .,. and to take any
          other requisite action in accordance with Sec-
          tion 5(a) of the Natural Gas Pipeline Safety Act
          of 1968."
          "(D) Nothing in this Article shall be construed
          to reduce, limit or impair any power heretofore
          vested by law in any incorporated city, town or
          village."
     The object of statutory construction is to ascertain the legis-
lative intent and, that having been determ,ined,to construe the
statute so as to give effect to the intent and purpose of the Legis
lature as to the whole and each material part of the statute. 53
Tex.Jur.Zd, Statutes, 5125, and cases cited therein. With this in
mind, it is our opinion that Section l(A) of Article 60.53-1,Vernon,‘S
Civil Statutes, in clear and unmistakable language, expresses the
intention and purpose of the Legislature to provide "state control"
... "to the maximum degree permissible under the federal Natural
Gas Pipeline Safety Act of 1968" (49 USCA 1671-1684) by expressly
granting to the Railroad Commission the power to do that which is
necessary under the federal Natural Gas Pipeline Safety Act of 1968,
and especially Section 5(a) thereof, to maintain "state control"
to the "maximum degree permissible". This "state control" is to
be exercised by the Railroad Commission over the ".0s safety stan-
dards and practices applicable to the transportation of gas and all
gas pipeline facilities within the borders of this state .-. which
are not subject to exclusive federal control...".
     The grant of jurisdiction and power to the Railroad Commission
of Texas to act pursuant to the federal Natural Gas Pipeline Safety
Act of 1968 is, in our opinion, comprehensive, and extends to gas
and gas pipeline facilities owned and/or operated by incorporated
cities, towns or villages (exempt from exclusive federal control
pursuant to Section l(b) of the Natural Gas Act) within the State
of Texas as well as to the power to do the other things specified
in Section l(A) of Article 6053-l with respect to such incorporated
cities, towns or villages.


                                  -25aa-
Hon. Ben Ramsey, page 3 (~-542)

    Section l(D).of Article 6U53-1, above quoted, while couched
in exclusionary language,with respect to incorporated cities,
towns and villages, must be read ,in lightof the entire statute
and the principle of law announced in Deacon v. City'of Euless,
405 S.W.Zd 59 (Tex.Sup. 1966). Although the Deacon case involved
dissimilar.circumstances, we think the orfncin6f~law     announced
therein, that is, that "municipal corporations do not acquire vested
rights against the State" (at p. 62), is fully applicable to
Section l(D) and necessitates a departure from the literal language
used therein to construe its meaning and purpose. Consequently,
when Section l(D) is read in the context of the entire statute,
and in particular,Section l(A),thereof, it is our opinion that
Section l(D) of Article 6053-l represents a limitation upon the
power delegated to the Railroad Commission of Texas with respect
to incorporated cities, towns and villages, rather than the ex-
clusion of incorporated cities, towns and villages; from that
power so delegated to the Railroad Commission of Texas. Section
l(D) so construed means that, as :regards incorporated cities, towns
and villages, the Railroad Commission of Texas may do on1
which is necessary pursuant to the federal Natural Gas+-P peline
                                                            that
Safety Act of 1968 to maintain "state control" over pipeline safety
standards to themaximum degree permissible under the federal
Natural Gas Pipeline Safety Act of 1968. The,jurisdiction and
power of the Commission pursuant to Article 6053-l extends no
further nor to any mother subject matter. Our construction of
Section l(A) and l(D) effectuates fu,lland'complete meaning to
each :provision consistent with the Legislature's clear expression
of intention and purpose to provide "state control" of safety
standards over the ,transportationof gas and pipeline facilities
within the borders of this state. A brief analysis of the federal
Natural Gas Pipeline Safety Act of 1968 (Public Law 90-481; 82
Stat. 720) illustrates the context in which Article 6053-l was
passed and re-enforces our conclusion that the grant of power to
the Railroad Commission of Texas is comprehensive for the purposes
specified therein. First of all, by virtue of the Natural Gas
Pipeline Safety Act of 1968, the Federal Government acting through
the Secretary of Transportation.has preempted, with the exception
of one area not important here, the entire field of regulating
and enforcing safety standards for all transportation of gas and
pipeline facilities. This includes intrastate pipelines as well
as gas and distribution facilities within municipalities. See
Sections 2(3), 2(4), 5(a), 6(a), 8(a) and 11 of the Natural Gas
Pipeline Act of 1968. The second.major aspect of the Natural Gas
Pipeline Act of 1968 is thatsection 5(a) thereof contemplates
that a state agency that does exercise regulatory and enforcement
jurisdiction over the safety standards and practices of pipeline
facilities and transportation of gas (not subject to the jurisdic-
tion of the Federal Power Commission under the Natural Gas Act)
may substitute State for Federal enforcement of the safety standards
as they apply to gathering, distribution and local transmission lines
and facilities by conforming to the requirements of that section.
                               .-2589-
                                                                  .




Hon.   Ben Ramsey, page 4        M-542)

However, where a state aqency cannot or does not exercise regulatory
and enforcement jurisdiction '3verthe safety standards and practices,
direct federal regulation and enforcement procedures apply, Our
construction of Section l(A), Article 6053-I clearly places the
Railroad Commission in a position to maintain "state control" to
the maximum degree permissible. Therefore, we answer your first
question in the affirmative.
     Having answered your first question in the affirmative, we
now turn to a consideration of your second question.
       Section   l(C)   of   Article   6053-l reads as follows:
             "(C) The Attorney General is authorieed, on behalf
             of the Railroad Commission, to enforce said safety
             standards by injunction restraining violations
             thereof (including the restraint of transportation
            ,of gas or the operation of a pipeline facility),
             Any violation of such safety standards shall further
             be subject  to a civil penalty, payable to the
             State  cf Texas, in an amount not to exceed $1,000
             for each such violation for each,day that such
             violation persists, except that the maximum civil
             penalty shall not exceed $200,000 for any related
             series  of violations. Any such civil penalty may
             be compromised by the Attarney General in con-
             sideration of the appropriateness of the penalty
             to the siee of the business of the person charged,
             the gravity of the violation, and the good faith
             of the person charged in attempting to achieve
             compliance after notification of violation."
     The section is self-explanatory in providing for injunct$ve
powers to be exercised by the Attorney General on behalf of the Rail-
road Commission to enforce safety standards and in additionally pro-
viding for a civil penalty not to exceed $200,000 for any related
series of violations of the safety standards, These sanctions are
to be applied against a "person", the scope and meaning of that term
being defined in Section 2(l.)of the Natural Gas Pipeline Safety
Act of 1968 and as used therein incorporated into Article 6053-l
by Section l(B), "Person" is defined as follows:
             "(1) 'Person' means any individual, firm, joint
             venture,~partnership, corporation, association,
             state, municipality, cooperative association, or
             joint stock association, and includes any trustee,
             receiver, assignee, or personal representative
             thereoff" (Emphasis added,)


                                         -2590-
Hon. Ben Renwey, page 5 (~-542)           .~~‘, :

     In Section 2(6) of the Natural Gas Pipeline Safety Act of 1968,
"municipality" is defined to be:

          " ... means a city, county, or any other political
          subdivision of a state;"
     Incorporated cities, towns and villages are, therefore, in our
opinion, among that class of subjects which, pursuant to Section
l(c), the Attorney General on behalf of the Railroad Commission may
impose the specified sanctions against for violations of the safety
standards applicable to the transportation of gas and pipeline
facilities, Gas distribution systems and the pipeline facilities
owned and/or operated by a municipality (incorporated city, town
or village) are thus within the provisions of Section l(c). We
therefore answer your second question in the affirmative.
     In summary, the construction that we have given each part of
Article 6053-l harmonizes each section with the others contained
therein in a manner that gives full expression to what in our opinion
is the legislative intent of the Article, that is, to provide for
"state control" over pipeline safety standards "to the maximum de-
gree permissible under the Natural Gas Pipeline Safety Act of 1968."
                                SUMMARY
          1. The Railroad Commipsion of Texas has the power,
    rpursuant to Article 6053-1, V.C.S., to prescribe or
     adopt safety standards for the transportation of gas
     and gas pipeline facilities where such transportation
     and gas pipeline facilities are owned and/or operated
     by an incorporated city, town or village and to take
     such other actions as are stated in Article 6053-l.
          2. The Attorney General is authorized on behalf
     of the Railroad Commission of Texas to impose the
     sanctions specified in Section l(c), Article 6053-1,
     V.C.S., against incorporated cities, towns or villages
     violating safety standards prescribed or adopted by
     the Railroad Connnissionpertaining to the transporta-
     tion of gas and pipeline facilities.

                                   Res



                                   Attorn@     General of Texas
Prepared by Rex H. White, Jr.
Assistant Attorney General

                                  -25g1-
Hon. Bsn Ramsey, page 6   (~-542)

APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker, Co-Chairman
bughton Brownlee, Jr.
James H. quick
Roger Tyler
w. 0. Shultz

MEADE F. GRIFFIN
Staff Legal Assisstant
NOLA WHITE
First Assistant
