Honorable BobStrickland Opinion No. hW-78

House of Repreaentatlves Capitol Station Re: Const! ‘utionalitg of House Austin, Texas Bill 432 of the 55th Leglslature, Regular SessIon, Dear Sir: 1957*

Youhave requested an opinion on the constitutionality .of House Bill 432 of the 55th Legislature, Regular Session, 1957,as amended by the Committee Amendments Nos. 1and 2. House Bill 432, as amended, reads as follows:

“ABILL

“TObe entitled

“ANACTto makefully operative and available for andwithin 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 anewArticle 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 1of 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 anyutility facility is necessitated by the improvement of any highway in this State which has been or mayhereafter be established byappropriate authority according to law as apart 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,bythe utility at the cost and expense of the State of Texas and relmbursement of the cost of relocation of such facility shall be madefrom the State Highway Fund to the utility owning such facilities, anything contained inHonorable BobStrickland, 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 bysuch 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 17of Article I of the Constitution of Texas provides :

“Section 17. Noperson’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 adeposit 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 432allow 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 432are 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 nopower to makeany grant or authorize the making of any grant of public *moneys to any Individual, association of individualsk municipality or other corporations whatsoever;

. . .Honorable BobStrickland, 

### page3 (w-78)

TheCourt, Attorney General, out Section 

### 51of

II

. . in Road District No. 4, Shelby County v.Allred, 123Tex. 

### 77 68SW2dlb4 (1934) fter setting Article III’of thd Constitution, h:ld: .It is the settled law of this state that the above-quoted constitutlonal provis Ion is intended to guard against and prohibit the granting or giving awayof public money except for strictly governmental purposes. The prohibition Is anabsolute 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: Texo 

### ,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 themopen and free of obstruction. It can close astreet only in the public interest and even then not over the objection of an abutting property owner with a co-existing private easement therein. Kahnv. City of Houston, Tex. Corn. APP., 121 Tex. 

### 293,48S.W.2d 595; Dallas Cotton Mills v. Industrial Co., Tex. Corn.App., 

### 296S.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 manyof the rights of title onbehalf of the public, It is less than the private easement in that the city cannot recover damages for the obstruction of astreet. It Is more than a private easemznt in that the control of the street is greater.

. . . AF;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-NewMexico 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 whereHonorable BobStrickland, page 4, (W-W-78)

the city Is something other than amere permissive occupa+ In the pro rletary capacity; City of Beaumont v. Prlddle, 65S.W. 26434 T)Tex.Clv.App., 1933 reversed and caused to be dismissed without prejudice since the case had become moot InT&N0 Railroad Companyv. Prlddle, 95S.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 I3111432 of the 55th Legislature, Regular Session, 1957, Is unconstitutional as submitted. Very truly yours, WIU WILSON ATTORNEYGENERAL

JR:F:jl:rh APPROVED: OPINIONCOMMITTEE: H. Grady Chandler

Chairman Edwin P. Horner Riley Eugene Fletcher Will Davis REVIEWED

FORTHEATTORNEYGENERAL Geo. P. Blackburn