Honorable Ward P. Casey              Opinion No.?+596
County Attorney
Waxahachle, Texas                    Re:   May Ellis County Road
                                           District No. 1.6 pay
Attention:   Hon. Wesley Gene Knize        the City of Ennis for
             Assistant County Attorney     removal of the City's
                                           water pipeline from the
                                           right-of-way of State
                                           Highway No. 34, located
Dear Mr. Knlze:                            within the Road District.
     You have requested an opinion of this office as to the
following:

          1. Nay Ellis County Road District Number 16
     the bonds of which were issued for the procurement of
     additional right-of-way for the widening and expansion
     of State Highway Number 34 within the District, pay for
     the removal of water pipeline lying within the existing
     right-of-way of State Highway Number 34 which pipeline
     is the property of the City of Ennls, Texas (the portion
     In question being located outside the city limits of the
     City of Ennis and within Road District No. 16).
     To answer this question properly, it first must be asked,
if the Road District has lawful authority to expend funds from
w   source for the above stated purpose.
     Road District No. 16 issued its bonds for right-of-way
procurement as its contribution to the widening of State Highway
No. 34 under various statutory authorities, including Article
6673e-1, Vernon's Civil Statutes. Such right-of-way, once pro-
cured and Included within the State Highway System, same being
the facts In our case, said highway Is within the exclusive
control and ownership of the State through its State Highway
Commission. Article 6673 and Article 6674s~9, V,C.S.
     The water pipeline In question was laid by the City within
the State owned right-of-way either by agre,ementwith the High-
way Commission or is there at suffrance under the authority



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Honorable Ward P. Casey, page 2   (M-596)


granted in Article 1433a, V.C.S,, which provides:
         "Any Incorporated city or town,...is
    authorized to lay its plpes,...for conducting
    water through, under, along across and over
    all public roads and water iying and situated
    outside the territorial limits of such city or
    town in such manner as not to incommode the
    public in the use of such roads....The public
    aaencv having durlsdlctlon or control of a




     Article 1433a, quoted above, creates a statutory obli-
 atlon upon a munlclpality to move its wa'terpipeline from
 tate Highway right-of-way at its own expense.
     Where, as here, there is no property right to be acquired
and the pipeline may be required to be removed at the expense
of the City (Attorney General Opinion ~-380 (1969), it is our
opinion that Ellis County Road District No. 16 does not have
authority to pay the cost of removing City of Ennis pipeline
lying within the right-of-way of State Highway No. 34, out-
side the city limits of the City of Ennis, with bond proceeds
or any other Road District funds.
                    SUMMARY
         Ellis County Road District No. 16 is without
    legal authority to pay out of bond proceeds or any
    other district funds for the cost of pipeline re-
    moval from the right-of-way of State Highway 34
    which lies within the District, where the pipeline
    belongs to the City of En&s, Texas and is located
    outside its city limits.
                                     n




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Honorable Ward P. Casey, Page 3   CM- 596)



Prepared by Joseph H. Sharpley
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
Fisher Tyler
Roland Allen
Thomas Sedberry
Earl Hines
John Reeves
Meade F. Griffin
Staff Legal Assistant
Alfred Walker
Executive Assistant
Nola White
First Assistant




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