Honorable Bob Strickland Opinion No. hW-78 

House of Repreaentatlves 

Capitol Station Re: Const! ‘utionalitg of House 

Austin, Texas Bill 432 of the 55th Leglsla ture, Regular Sess Ion, 

Dear Sir: 1957 * 

You have requested an opinion on the constitutionality .of 

House Bill 432 of the 55th Legislature, Regular Session, 1957,as 

amended by the Committee Amendments Nos. 1 and 2. House Bill 

432, as amended, reads as follows: 

“A BILL 

“TO be entitled 

“AN ACT to make fully operative and available for 

and within the State of Texas the FederalAid Highway Act of 1956 by amending Title 

116, Chapter 1, Revised Civil Statutes of 

Texas, 1925, by adding thereto a new Article 

and so as to provide for reimbursement to 

utilities, publicly, privately and cooperatively 

owned, of the cost of relocation necessitated by 

any federal-aid project; and declaring an 

emergency. 

“Section 1. That Title 116, Chapter 1 of the 

Revised Civil Statutes of Texas, 1925, be amended by 

adding thereto the following Article, said Article to 

read as follows: 

‘1. Whenever the relocation of any utility 

facility is necessitated by the improvement of any 

highway in this State which has been or may hereafter 

be established by appropriate authority according to 

law as a part of the Federal-Aid Primary or Secondary 

System or the Natlonal System of interstate and defense 

highways , including extensions thereof within urban 

areas, such relocation shall be made ,by the utility 

at the cost and expense of the State of Texas and relmbursement of the cost of relocation of such facility 

shall be made from the State Highway Fund to the 

utility owning such facilities, anything contained in 
Honorable Bob Strickland, page 2 (w-78) 

any other provision of law or in any permit, or 

agreement or franchise issued or entered into by 

any department, commission or political subdivision of the State to the contrary notwithstanding,’ 

‘Section 2. For the purposes of this Article, 

the term ‘utility’ shall include publicly, privately, 

and cooperatively owned,utllities engaged In furnishing heating, water, gas, electric, telephone, telegraph, communication, railroad, sewerage or pipeline 

service ; and the cost of relocation shall Include 

the entire amount paid by such utility properly 

attributable to such relocation after deducting 

therefrom any Increase in the value of the new facility 

and any salvage derived from the oid facility. 

“Section 3. . . . .” 

Section 17 of Article I of the Constitution of 

Texas provides : 

“Section 17. 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; and, when taken, except 

for the use of the State, such compensation shall be 

first made, or secured by a deposit of money; and no 

irrevocable or uncontrollable grant of special privileges 

or immunities, shall be made; but all privileges and 

franchises granted by the Legislature, or created unde; 

its authority shall be~subject to the control thereof. 

Insofar as the provisions of House Bill 432 allow the 

State to pay the cost of taking private property for public use, 

the payment would be in compliance with the provisions of Section 

17 of Article I of the Constitution of Texas. It Is noted, however, that the provfsions of House Bill 432 are not limited to 

the payment of acquired property rights. It falls to distinguish the condition under which the utiiitg Involved is occupying 

the space from which the relocation becomes necessary. 

Sectfon 51 of Article III of the Constitution of 

Texas provides : 

“The legislature shall have no power to make any 

grant or authorize the making of any grant of public 

* moneys to any Individual, association of individualsk 

municipality or other corporations whatsoever; . . . 
Honorable Bob Strickland, page 3 (w-78) 

The Court, 

Attorney General, 

out Section 51 of 

II 

. . 

in Road District No. 4, Shelby County v.Allred, 

123 Tex. 77 68 S W 2d lb4 (1934) fter setting 

Article III’of thd Constitution, h:ld: 

.It is the settled law of this state that 

the above -quoted cons titutlonal provis Ion is intended 

to guard against and prohibit the granting or giving 

away of public money except for strictly governmental 

purposes. The prohibition Is an absolute one, except 

as to the class exempted therefrom, and operates to 

prohibit the Legislature from making gratuitous donations to all kinds of corporaklons, private or public, 

municipal or political. . . . 

In City of Mission v. Popplewell, 

S.W.2d 712 (1956), It was stated: 

Tex o ,294 

“The city controls the streets as trustee for the 

public. It has no proprietary title nor right to 

exclusive possession. Its right of control is 

restricted by its trusteeship. It has the duty to 

maintain the streets and keep them open and free of 

obstruction. It can close a street only in the public 

interest and even then not over the objection of an 

abutting property owner with a co-existing private 

easement therein. Kahn v. City of Houston, Tex. Corn. 

APP., 121 Tex. 293, 48 S.W.2d 595; Dallas Cotton Mills 

v. Industrial Co., Tex. Corn. App., 296 S.W. 503; 39 

Tex. Jur., 603-605. 

“Thus the interest which a city has in its 

streets and alleys is unique and legally sui generis. 

It has no proprietary title but exercises many of the 

rights of title on behalf of the public, It is less 

than the private easement in that the city cannot 

recover damages for the obstruction of a street. It 

Is more than a private easemznt in that the control of 

the street is greater. . . . 

A F;ity’s ownership and operation o$, some publiE utilities 

Is no’t a governmental function but Is proprietary in its 

nature and constitutes the “busl;ess or corporate function” of 

the city in question. osbyton v. Texas -New Mexico 

Utilities Company_, 157 (Tex. Clv. App. 1942 , error 

ref . w.0.m.). 

House Bill 432 is constitutional Insofar as it authorizes 

payment of the cost of relocation of utility facilities In those 

instances where prior property or contract rights exist, or where 
Honorable Bob Strickland, page 4, (W-W-78) 

the city Is something other than a mere permissive occupa+ In 

the pro rletary capacity; City of Beaumont v. Prlddle, 65 S.W. 

26 434 T)Tex. Clv.App., 1933 reversed and caused to be dismissed 

without prejudice since the case had become moot In T & N 0 

Railroad Company v. Prlddle, 95 S.W.2d 1290). 

House Bill 432 Is unconstitutional Insofar as it attempts 

to authorlie reimbursement In those Instances where the State Is 

not authcrlzed to bear the expense of relocation. Since the provisions of House Bill 432'are not severable, It 1s our opinion 

that House Bill 432 of the 55th Legislature, Regular Session, 

1957, as submitted; Is unconstitutional, being in violation of 

Section 51 of Article III of the Constitution of Texas. 

SUMMARY 

House I3111 432 of the 55th Legislature, Regular Session, 

1957, Is unconstitutional as submitted. 

Very truly yours, 

WIU WILSON 

ATTORNEY GENERAL 

JR:F:jl:rh 

APPROVED: 

OPINION COMMITTEE: 

H. Grady Chandler 

Chairman 

Edwin P. Horner 

Riley Eugene Fletcher 

Will Davis 

REVIEWED FOR THE ATTORNEY GENERAL 

Geo. P. Blackburn