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

Sept.embsrlS~1972

Honorable C. J. Eden County Attorney Stephens County.~ 110 East -Walker Breckenridge, Texas

Dear Mr. Eden: ., Opinion No. M- 1218

76024 Rer Authority of the Commissioners Court to grant a permit to a corporation for use of,right-oi,lrlays of county roads for locating pipeline for

. transmission ~ofwater in connection with water flood operation 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:

,"Whetheror 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 fora Texas corporation, qualified.as a public utility, to laypipeline along the right-of,-wayof a county .road.forthe transmission of water to a s,econdcorporation, ,anoil produoing'corporation, for use.,,in water-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 ,corporation,which corporation is classified as apublic utility. . . .'I

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

as towhether the purpose clause gives the corporation the authority to buy and sellwater. Nor dowe find in the articles any provision which would classify the corporation as a public utility in connection with the sale ofwater.

We are of thenopinion 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 corporation 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:
"Anywater corporation shall have the power to sell and furnish such quantities ofwater 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 ,ofany such city, town or village,with the consent of the governing body thereof, and under such regulations as it **may** prescribe. Such cornoration is further authorized to lav its pipes, mains and conductors and,other~fixtures forconductinq~water throuqh, under, alonq, across and over all'public roads, streets andwaters 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,

-5973-.

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

'the when.it.proposed-to build 1ines:along the right ofway of any.State Highway, or county road;. outside the limits ofiany 'incorporatedcity'or town, whereupon theyHighway .Commission,or the Commissioners Court'may~,if.it SOSdesires,~ designate the'place **alon** the,right,of,way: where such lines shall be constructed. The public-agency,having'jurisdiction'or 'control of~ahighway:$orcounty'.ruad,: that isi the:.:. HighwaysCommission~orthe Commiss%oners-Court, .:as:the,-:case~,may :be,may-:require.anysuch corporation, 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'lineor,'

.. linesYto~~.be.moved,~~~and indicatirq the pla&on, the,ne~.~rightofway,were ~such-lineorlines. .mny,-.be,..placed.. 'When deemed necessary'to:pre- ': ,..serve.~the.public health;~any company .orcorpora- ,tion-chartered:under:the.-lawsof this .State::for the purpose.lof.,,,constructing:waterworks or'fur-." ni,shingwater supply :ta'.any city .ortown,.shall. have::the.right:of:emin'entdomain~tocondemn.' ,privateproperty ~necessary.',for the construction of supply reservoirs:~orstandpipes~forwater 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 follautin~.:pete~ne~t'~ l&+aQ&:

. "Ithas 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 (Statev. City ofAustin), 319 S.W.2d 767 (Tex.Civ.App. 1959. aff. 331 S.W.2d 737) said at page 773:

'Therecan be no question but that the Legislature can lawfully,,permitcities 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 inArticles 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'uestionpresented, 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 toArticle 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 inArticle 1433 and

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

is not pursuant .toany permit issued by the county. Indeed, the statute does not provide for a permit except as towhere 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~claimsthat the abutting land owners might have against the county where the county right ofway has been obtained by ,prescription, ,Aswe interpret Article 1433, the county is not a party to any .actiontaken 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.eCo., 482 S.W.Zd 352, 356 (Tex.Civ.App. 1972) where the Court wrote, inwhat we co,nsidera'valid analogy:

"Appellee. under the authority ofArticle .~1464~, 'V.A.C.S..,is authorized to erect its poles, w~iresand 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 public inthe use of such roads, streets, andwaters; This is a right granted by the State.which cannot be denied by amunicipality or city. . . ." (Emphasis added.)
SUMMARY ------- A Texas,corporation, provided it isqualified as awater corporation and as a public utility, has,the right under Article 1433, Vernon's Civil Statutes, to lay its pipes along the right ofway 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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