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 ~of water 

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: 

,"Whether or 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 for a Texas corporation, qualified.as a public utility, to lay pipeline along 

the right-of,-way of a county .road.for the transmission of water to a s,econd corporation, ,an oil 

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 a public utility. . . .'I 

An examination of the Articles of Incorporation of 

the Gra-Pet Gas Company leaves considerable doubt in our mind 
Hon. C. J. Eden, page 2, (M-1218) 

as to whether the purpose clause gives the corporation the 

authority to buy and sell water. Nor do we find in the articles any provision which would classify the corporation as a 

public utility in connection with the sale of water. 

We are of then opinion 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: 

"Any water corporation shall have the power 

to sell and furnish such quantities of water 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 ,of any 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 and waters 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 

of way of any.State Highway, or county road;. 

outside the limits ofiany 'incorporated city'or 

town, whereupon theyHighway .Commission, or the 

Commissioners Court'may~, if. it SOS desires,~ 

designate the'place alon the,right,of,way: 

where such lines shall be constructed. The 

public-agency, having' jurisdiction' or 'control 

of ~a highway:$or county'.ruad,: that isi the: .:. 

Highways Commission~orthe Commiss%oners- Court, 

.:as:the,-:case~,may :be, may-:require.any such 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'~written hotic,e 

tosuch .corp&ati'on~'a&specifying .the'line or,' 

.. linesYto~~.be.moved,~~~and indicatirq the pla&on, 

the,ne~.~right of way,were ~such-line or lines. 

.mny,-.be,..placed.. 'When deemed necessary'to:pre- ': 

,..serve.~the.public health;~ any company .or corpora- 

,tion-chartered:under:the.-laws of this .State::for 

the purpose.lof.,,,constructing:waterworks or' fur-." 

ni,shing water supply :ta'.any city .ortown,. shall. 

have::the.right:of :emin'entdomain ~to condemn.' 

,private property ~necessary.',for the construction 

of supply reservoirs:~or standpipes~ for water 

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&: 

. 

"It has 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 (State v. City 

of Austin), 319 S.W.2d 767 (Tex.Civ.App. 1959. 

aff. 331 S.W.2d 737) said at page 773: 

'There can be no question but that the 

Legislature can lawfully,,permit cities 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 in Articles 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'uestion presented, 

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 

to Article 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 in Article 1433 and 

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

is not pursuant .to any permit issued by the county. Indeed, 

the statute does not provide for a permit except as to where 

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 ~claims that the abutting land 

owners might have against the county where the county right 

of way has been obtained by ,prescription, ,As we interpret 

Article 1433, the county is not a party to any .action taken 

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.e Co., 482 S.W.Zd 352, 356 (Tex.Civ.App. 1972) 

where the Court wrote, in what we co,nsider a'valid analogy: 

"Appellee. under the authority of Article 

.~1464~, 'V.A.C.S.., is authorized to erect its poles, 

w~ires and 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, and waters; 

This is a right granted by the State.which cannot 

be denied by a municipality or city. . . ." 

(Emphasis added.) 

------- SUMMARY 

A Texas, corporation, provided it is qualified as a water corporation and as a public 

utility, has,the right under Article 1433, 

Vernon's Civil Statutes, to lay its pipes along 

the right of way 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 

-5977-