Miss Edna Cisneros

County Attorney Willacy County Raymondville,Texas

Dear Miss Clsneros: OpinionNo, WW-1090
Re: Whether the Commissioner's Court, without paying compensation therefor, can require a gas pipeline company to encase in metal and vent its pipeline under the.facts stated.
You have requested the opinion of this office on the~followingquestion:

"May the Commissioner'sCourt,without paying compensation therefor, require a gas pipeline company to incase In metal and vent its pipeline under and across a road which is to be paved, not only across the right-of-way of such road In existence at the time such pipelinewas laid, but in -addition,to incase In metal and vent such pipeline lying across and under the contiguous right-of-way thereafter acquired~ by the County for the purpose of widening such road?"
As we understand your question and the factual situationwhich prompted its submission, the pipeline in question, at the time itwas laid, crossed beneath an existlng roadway which is under the jurisdiction of the Commissioner'sCourt of Willacy County and sometime thereafter the Commissioner'sCourt' acquiredadditional right-of-way for the purpose of widening and improving the existing roadway. The contemplated improvement of the roadway requires that the pipeline be enclosed in metal casingand vented.

The situation raised by the facts presented requires thatwe consider the pipeline thatmust be encased and vented in twodistinct catagorles, to wit: (1) that portion under the existingroadway and (2) that portion under the additionalMiss Edna Cisneros, Page 2 (WW-1090)

right-of-waywhich was acquired after the pipelinewas in place. Having placed its transmissionlinesunder the existingroadway subsequent to the effective date of Article 1436b of Vernon's Civil Statutes,the plpeline company in question is subject to the provisionsand requirements of this Article,which provides in part as follows:

I, isdiction The public agency havlng juror control of a highway or county road, that is, the Highway Commission or the CommissionersCourt, as the case may be, may requireany suchperson, firm or corporation or incorporatedcity or town at its own expense to relocate its pipes, mains, conductors or other fixtures for conducting gas on a statehighway or county road outside the limits of an incorporatedcity or incorporated town so as to permit the widening ore changing of traffic lanes,by giving thirty (30)days written notice to such person; firm or corporation or incorporatedcity or town and,speclfylng the facility or facilities to be moved and indicatingthe place on the new right-of-waywhere such facility or facilities may be placed. Such person, firm or corporation or incorporatedcity or town shall replace the grade and surface of such road or highway at its own expense." Consequently, it is our opinion that the portion of thepipelinewhich passes under the roadway as it existedprior to the acquisition of the additional right-of-way Is governed by ourholding in W-961 (November18, 1960) and the language thereinquoted from State v. City of Austin, Tex. 331 S.W.2d737 (1960)and you are hereby advised that the pipeline companycan be required to encase and vent this portion of its pipelineat its own expense and without compensation from the county. The remainingportion of the pipeline affectedby the planned improvementand widening program, i.e., that portionpassingunder the additionalright-of-wayacquired by the county in order to effectuate the widening and improvement of the roadway,presents a different questlon.r

Miss Edna Cisneros, Page 3 (WW-1090)

As your request indicates, the pipeline company had acquired an easement for its pipelineunder the property adjacent to the existing roadway prior to the time such property was acquired by the county as part of the right-of-way.

Section 17 of Article I of the Constitution of the State of Texas provides that:

"No person'sproperty shallbe taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; . . .' Since the existing easement of the pipeline company was not condemned or otherwiseacquired by the county at the time the additional right-of-way in which it now lies was acquired,any requirement that this portion of,the pipeline be encasedand vented would be a taking of the pipeline company's easementand is prohibitedby Section 17 of Article I of the Constitutionof the State of Texas unless ade uate 9 compensation is paid to the pipeline company. See WW-125 WW-1004 (March6, 1961). May 22, 1957) and

Therefore, you are advised, that in our opinionthe pipeline company in question cannotbe re~quired to encase and vent that portion of Its pipeline which lies within a prior easementunder the property acquired by the county for roadway Improvementand widening purposeswithout compensating the pipeline company therefor.

SUMMARY The Commissioner'sCourt Is authorized to require a pipeline company to encase and vent that portion of its pipelinewhich crosses under an existing roadway at the pipeline company's own expense and without reimbursement,but the Commissioner's Court cannot require the pipeline company to encase and vent that portion of its pipeline which lies in a pre-existingI

Miss Edna Cisneros, Page 4 (WW-1090)

easementunder propertyacquired for the improvement of such roadwaywithout compensating the pipeline company therefor.
Yoursvery truly,
WILL WILSON AttorneyGeneral of Texas

wos:mm APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John Reeves John Leonarz Linward Shivers Marvin F. Sentell
REVIEWEDFOR THE ATTORNEYGENERAL
BY: MorganNesbitt