HonorableD. C. Qreer

State Highway Engineer Texas HI Austin 1

& hway Department

, Texas

Dear Mr. Greer: : OpinionNo..C-139
Re: Authorityof Highway Commissionto refuse permits to place gas pipelineson highway right of ways.

In your letter request,you inquire If the Highway Commission has:dlsctietlonary authorit'y

to grant &? refuse applicationsto permXt gas transportation pipelines.

along highway right of ways that are not Intendedto service the roadsidedevelopmentadjacent to the particularsectaon of highway Involvedbut are for the transportation

of gas usuallyunder considerable pressure to some other area where lo&al service might be Indicated. Article 1436b,Vernona'Civil Statutes,reads as follows:
"Use of'roads and sttieets In distributionof gas" Section 1. 'Anyperson, firm or corporationor lncorporatedcity or town engaged In the business of transportingor distributing gas tion for public consumpshall have the power to lay mains, conductors and maintainpipes, and other facilitiesused for cond tingg th Rh, tinder; a:"1 publirhlg%&, along. across and over

public roads,public streets and alleys, and public waters,wlthl this State; vided that proHIthIn the~corporate1iGts of an lncorporeted city br Incorporatedtown such right shall be dependentupon the consentand subject to the governing body. &y such person, firm or corporation poreted city br lncorporetied town such right shall be dependentupon the consentand subject to the governing body. &y such person, firm or corporation

-685-HonorableD. C. Gre,er, page ! (OpinionNo. CT139

or Incorporatedcity or town shall notify the State Highway CommissionoP~%he:Qommlssloners' Court having jurisdiction,

as the case may be, when It proposes to lay any such pipes,mains, conductorsand other fixtures for conductinggas within the right of way of any State highway or county road outside the limits of en Incorporatedcity 6F Incorporated town, whereupon the Highway Commissionor the Commlssloners~ Court, If It so desires,may designatethe place upon the right of way where the same shall be ,lald. The public agencyhaving jurisdiction or 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 Incorporatedcity or town at Its own expense to relocete.lts

pipes, malnsj conductorsor~other f%xtures for,conductlng gas on a statehighway or county roed.outsldethe limit6 of an Incorporated city ore Incorporatedtown so as tb ~~~~~,~~,~~~~$io~r~a~~ changingof traffic lanea, written notice to such person, firm or corporation or Incorporatedc$ty or town and specifyingth$ facility or facilitiesto be moved and Indicatingthe place oh the new right,-of.way where such~~'fecllity T or facllltles

may be placed.,Such person, firm or corporationor Incorporatedcity ortown shall replace the grade and;surCaceof such,'road,or h~g~~~,at Its : '~ 'own expense.'I 8. .,
Yn arriving et leglsla$lvelhtent,'l~'ls of &mazy lmportance enacted."

tb: ascertainthe purpose for which the'stetutewas City of Meson v. West Texas UtllltlesCo., 150 Tex. 18, 237 S.ti.2d

273, (1951)

. The purpose clause of Article 1436b as passed by the legislature,

June 21, 1951, Acts.1951,52nd Legislature, p. 829, Chapter 470 Is as follows:.

"An act to fecllltate~ and encouragethe distributionof gas ?&the lnhribltatitti of cltles~,,towns,

villages end rural areas of the State of Texas by providingthat any person, firm or~corporetlon or any Incorporatedcity or tOwn engagingIn the business of transportingor dlstribut+g gas for public consumption may lay and malnt+lnpipes, mains, conductorsand,other f~cllltlesused for conductinggas through, under, along, across and over all public highways,public roads, public streets and alleys,.

. .'

-6861r-

. -t

Honorable D. C. Greer, page 3 (Opinion No. C-139)

The purpose clause Indicates and the act itself specifically provides that it is intended to apply to gas transporting companies as well as gas distributing companies who furnish gas for public consumption. The fact that they do not service the adjacent area Is, In our opinion, immaterial as this does not prevent the gas from being ultimately used for public consumption. The Statute does provide that the Highway Commission may, If it so desires, designate the place on the highway right of way where the pipeline may be placed and that it can require the party to relocate the pipeline so as to permit the widening or changing of traffic lanes. This Is the only authority granted to the Highway Commission under the Act.
It follows that this office 1s of the opinion that a party In the business of transportation or distributing gas Intended for public consumption 1s authorized under Article 1436b V.C.S. to lay and maintain pipelines along state highway rightof ways after notifying the Highway Commission:
SUMMARY The Highway Commission has no authority to refuse permits to place gas pipelines along highway right of ways, but the Commission may designate the place upon the right of way where the same shall be laid end may require the relocation of the pipeline so as to permit the widening or changing of traffic lanes.
Yours very truly,

WAGGONER CARR Attorney General of Texas

BY: Assistant Attorney General
APPROVED: Opinion Committee W. V. Geppert, Chairman F. William Colburn Grady Chandler Gordan Zuber William Hemphill
"APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone' -687-