HonorableWard P. Casey Opinion No.?+596

CountyAttorney Waxahachle,Texas Re: May Ellis County Road District No. 1.6pay Attention: Hon. Wesley Gene Knize the City of Ennis for

Assistant CountyAttorney removal of the City's water pipeline from the right-of-wayof State Dear Mr. Knlze: Highway No. 34, located 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 procurementof 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-wayof State Highway Number 34 which pipeline is the propertyof the City of Ennls, Texas (the portion In questionbeing located outside the city limits of the City of Ennis and within Road District No. 16).
To answer this question properly, it firstmust 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 procurementas its contribution to the widening of State Highway No. 34 under various statutory authorities, includingArticle 6673e-1,Vernon's Civil Statutes. Such right-of-way,once procured and Includedwithin 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 questionwas laid by the City within the State owned right-of-wayeither by agre,ement with the Highway Commission or is there at suffranceunder the authority

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granted in Article 1433a,V.C.S,, which provides:

"Any Incorporatedcity or town,...is authorized to lay its plpes,...forconducting 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 suchmanner as not to incommode the public in the use of such roads....Thepublic aaencv having durlsdlctlonor controlof a

Article 1433a, quoted above, creates a statutoryobliatlonupon a munlclpality to move its wa'ter pipeline from tate Highway right-of-wayat its own expense. Where, as here, there is no propertyright to be acquired and the pipelinemay be required to be removed at the expense of the City (AttorneyGeneral 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-wayof State Highway No. 34, outside the city limits of the City of Ennis, with bond proceeds or any other RoadDistrict funds. SUMMARY Ellis County Road DistrictNo. 16 is without legal authority to pay out of bond proceedsor any other district funds for the cost of pipelineremoval from the right-of-wayof 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

-2841-HonorableWard P. Casey, Page 3 CM- 596)

Preparedby Joseph H. Sharpley AssistantAttorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen,Acting Co-Chairman Fisher Tyler RolandAllen Thomas Sedberry Earl Hines John Reeves Meade F. Griffin Staff Legal Assistant Alfred Walker ExecutiveAssistant NolaWhite First Assistant

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