Miss Edna Cisneros 

County Attorney 

Willacy County 

Raymondville, Texas 

Dear Miss Clsneros: 

Opinion No, 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~following question: 

"May the Commissioner's Court, 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 pipeline was 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 situation which prompted its submission, the pipeline in question, 

at the time it was laid, crossed beneath an existlng roadway 

which is under the jurisdiction of the Commissioner's Court of 

Willacy County and sometime thereafter the Commissioner's Court' 

acquired additional 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 casing and vented. 

The situation raised by the facts presented requires 

that we consider the pipeline that must be encased and vented 

in two distinct catagorles, to wit: (1) that portion under the 

existing roadway and (2) that portion under the additional 
Miss Edna Cisneros, Page 2 (WW-1090) 

right-of-way which was acquired after the pipeline was in 

place. 

Having placed its transmission lines under the 

existing roadway subsequent to the effective date of Article 

1436b of Vernon's Civil Statutes, the plpeline company in 

question is subject to the provisions and 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 Commissioners Court, as the case 

may be, may require any such person, firm or 

corporation or incorporated city or town at 

its own expense to relocate its pipes, mains, 

conductors or other fixtures for conducting 

gas on a state highway or county road outside 

the limits of an incorporated city 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 incorporated city or town 

and,speclfylng the facility or facilities to 

be moved and indicating the place on the new 

right-of-way where such facility or facilities 

may be placed. Such person, firm or corporation or incorporated city 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 

the pipeline which passes under the roadway as it existed prior 

to the acquisition of the additional right-of-way Is governed 

by our holding in W-961 (November 18, 1960) and the language 

therein quoted from State v. City of Austin, Tex. 331 

S.W.2d 737 (1960) and you are hereby advised that the pipeline 

company can be required to encase and vent this portion of its 

pipeline at its own expense and without compensation from the 

county. 

The remaining portion of the pipeline affected by 

the planned improvement and widening program, i.e., that portion passing under the additional right-of-way acquired 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 pipeline under 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's property shall be 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 otherwise acquired 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 

encased and vented would be a taking of the pipeline company's 

easement and is prohibited by Section 17 of Article I of the 

Constitution of the State of Texas unless ade uate 

9 

compensation 

is paid to the pipeline company. See WW-125 

WW-1004 (March 6, 1961). 

May 22, 1957) and 

Therefore, you are advised, that in our opinionthe 

pipeline company in question cannot be re~quired to encase and 

vent that portion of Its pipeline which lies within a prior 

easement under the property acquired by the county for roadway 

Improvement and widening purposes without compensating the 

pipeline company therefor. 

SUMMARY 

The Commissioner's Court Is authorized to 

require a pipeline company to encase and 

vent that portion of its pipeline which 

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-existing 
I 

Miss Edna Cisneros, Page 4 (WW-1090) 

easement under property acquired for the 

improvement of such roadway without compensating the pipeline company therefor. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

wos:mm 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

John Reeves 

John Leonarz 

Linward Shivers 

Marvin F. Sentell 

REVIEWEDFOR THE ATTORNEYGENERAL 

BY: Morgan Nesbitt