December 1, 1988 

Honorable Kent A. Caperton 

Chairman 

Committee on Jurisprudence 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. JM-988 

Re: Whether the power of eminent domain attaches to a 

limited partnership with a 

corporate general partner where 

the partnership owns and operates a refined petroleum products pipeline (RQ-1560) 

Dear Senator Caperton: 

You ask: 

Does a limited partnership with a corporate 

general partner that owns and operates a 

refined petroleum products pipeline have 

eminent domain rights? 

You do not indicate in your request for an opinion or in the 

correspondence accompanying your request whether each 

partner in the limited partnership is a corporation. We 

conclude that, if each partner in the limited partnership is 

a corporation, the limited partnership does have the power 

of eminent domain. However, if even one of the partners is 

an entity other than a corporation, the limited partnership 

has no such power. 

Section 111.019 of the Natural Resources Code expressly 

confers the right of eminent domain on "common carriers": 

(a) Common carriers have the right and 

power of eminent domain. 

(b) In the exercise of the power of 

eminent domain granted under the provisions 

of Subsection (a) of this section, a common 

carrier may enter on and condemn the land, 

rights-of-way, easements, and property of any 

person or corporation necessary for the 

P- 5050 
Honorable Kent A. Caperton - Page 2 (JM-988) 

construction, maintenance, or operation of 

the common carrier pipeline. 

The phrase tfcommon carrier" is defined at section 

111.002 of the Natural Resources Code: 

A person is a common carrier subject to the 

provisions of this chapter if it: 

(1) owns, operates, or manages a pipeline 

or any part of a pipeline in the State of 

Texas for the transportation of crude 

petroleum to or for the public for hire, or 

engages in the business of transporting crude 

petroleum by pipeline; 

(2) owns, operates, or manages a pipeline 

or any part of a pipeline in the State of 

Texas for the transportation of crude 

petroleum to or for the public for hire and 

the pipeline is constructed or maintained on, 

over, or under a public road or highway, or 

is an entity in favor of whom the right of 

eminent domain exists; 

(3) owns, operates, or manages a pipeline 

or any part of a pipeline in the State of 

Texas for the transportation of crude 

petroleum to or for the public for hire which 

is or may be constructed, operated, or 

maintained across, on, along, over, or under 

the right-of-way of a railroad, corporation, 

or other common carrier required by law to 

transport crude petroleum as a common 

carrier: 

(4) under lease, contract of purchase, 

agreement to buy or sell, or other agreement 

or arrangement of any kind, owns, operates, 

manages, or participates in ownership, 

operation, or management of a pipeline or 

part of a pipeline in the State of Texas for 

the transportation of crude petroleum, bought 

of others, from an oil field or place of 

production within this state to any 

distributing, refining, or marketing center 

or reshipping point within this state: 

(5) owns, operates, or manages, wholly or 

partially, pipelines for the transportation 

P- 5051 
, 

Honorable Kent A. Caperton - Page 3 (JM-988) 

for hire of coal in whatever form or of any 

mixture of substances including coal in 

whatever form: or 

(6) owns, operates, or manages, wholly or 

partially, pipelines for the transportation 

of carbon dioxide in whatever form to or for 

the public for hire, but only if such person 

files with the commission a written 

acceptance of the provisions of this chapter 

expressly agreeing that, in consideration of 

the rights acquired, it becomes a common 

carrier subject to the duties and obligations 

conferred or imposed by this chapter. 

(Emphasis added.) 

Section 111.002 of the Natural Resources Code by its 

terms appears to limit the meaning of "common carrier" to 

carriers of crude petroleum, as opposed to carriers of 

refined petroleum. The brief submitted with your request 

suggests that Phillins Piueline co. v. Woods, 610 S.W.2d 

204 (Tex. Civ. App. - Houston '[14th Dist.] 1980, writ ref'd 

n.r.e.) [hereinafter Pm], stands for the proposition 

that carriers of refined petroleum products have been 

conferred eminent domain power as well, not by a section of 

the Natural Resources Code, but by a provision of the Texas 

Business Corporation Act. We agree. 

In Phillins, a pipeline company sought to condemn real 

property for the purpose of constructing a pipeline that was 

to carry an ethane-propane mixture, a refined product. The 

lower court agreed with the landowners challenging the 

condemnation proceedings that the pipeline company did not 

have the power of eminent domain because it was not a 

carrier of crude petroleum. The court of appeals overruled 

the lower court on this issue because of a specific 

provision of the Texas Business Corporation Act that confers 

the power of eminent domain on carriers other than carriers 

of crude petroleum. Phillins, 610 S.W.2d at 206. 

Article 2.01 B(3)(b) of the Texas Business Corporation 

Act provides the following: 

B. No corporation may adopt this Act or be 

organized under this Act or obtain authority 

to transact business in this State under this 

Act: 

P 

. . . . 

p. 5052 
Honorable Kent A. Caperton - Page 4 (JM-988) 

(3) If among its purposes for the 

transaction of business in this State, there 

is included, however worded, a combination of 

the two businesses listed in either of the 

following: 

. . . . 

(b) The business of engaging in the 

petroleum oil producing business in this 

State and the business of engaging directly 

in the oil pipe line business in this State: 

provided, however, that a corporation engaged 

in the oil producing business in this State 

which owns or operates private pipe lines in 

and about its refineries, fields or stations 

or which owns stock of corporations engaged 

in the oil pipe line business shall not be 

deemed to be engaging directly in the oil 

pipe line business in this State: and 

provided that any corvoration, or orouv of 

COrDOratiOnS aCtirK in DartnerShiV or other 

combination with other corvorations. enoaoed 

as a common carrier in the vine line business 

for transvortino oil, oil vroducts. qas, 

carbon dioxide, salt brine, fuller's earth, 

sand, clav, liauified minerals or other 

mineral solutions, shall have all of the 

riahts and oowers conferred bv Section 

111.019 throush 111.022. Natural Resources 

Q&g. (Emphasis added.)1 

Subsection B(3)(b) of article 2.01, Texas Business 

Corporation Act, was contained in the original 1955 

enactment of the Business Corporation Act in substantially 

the same form as it now reads. A 1973 amendment corrected 

the citation to the relevant sections of the Natural 

Resources Code after that code was recodified. By the very 

terms of subsection B(3)(b) of article 2.01, it is clear 

that certain pipeline carriers that carry products other 

than crude petroleum are conferred the same power of eminent 

domain as carriers of crude petroleum. The remaining 

1. We note that corporations that are created for the 

purpose of both producing oil and transporting it by 

pipeline are governed, not by the Texas Business Corporation 

Act, but by the Natural Resources Code. --. 

P. 5053 
Honorable Kent A. Caperton - Page 5 (JM-988) 

question is whether such a common carrier organized as a 

limited partnership may exercise that power. 

The relevant proviso of subsection B(3)(b) of article 

2.01, Texas Business Corporation Act, confers the power of 

eminent domain on a common carrier of, inter alia, oil 

products, organized as *'any corporation, or group of 

corporations acting in partnership or other combination with 

other corporations." For the reasons discussed below, we 

construe subsection B(3)(b) of article 2.01 of the Texas 

Business Corporation Act to permit an otherwise qualified 

carrier organized as a limited partnership with a corporate 

general partner to exercise the power of eminent domain, 

only if each partner of such a limited partnership itself is 

a corporation. 

First, a maxim of statutory construction states that 

the express mention of one thing implies exclusion of 

another. State v. Mauritz-Wells Co., 175 S.W.2d 238 (Tex. 

1943) ; Harris Countv v. Dowlearn, 489 S.W.Zd 140 (Tex. Civ. 

APP. - Houston [14th Dist.] 1972, writ ref'd n.r.e.). The 

express mention in subsection B(3)(b) of article 2.01, Texas 

Business Corporation Act, of corporations and partnerships 

or other business combinations consisting of corporations 

indicates that the legislature intended that each partner in 

a limited partnership exercising the power of eminent domain 

itself be a corporation. 

Second, and even more compelling, Texas courts always 

have required that the power of eminent domain be conferred 

specifically by the legislature: the power of eminent domain 

will not be conferred from a doubtful inference. Burch v. 

Citv of San Antonio, 518 S.W.2d 540, 544 (Tex. 1975); 

Coastal States Gas Producins Co. v. Pate, 309 S.W.Zd 828, 

831 (Tex. 1958). Statutes that confer the power of eminent 

domain are construed strictly in favor of the landowner 

and against the entity attempting to exercise such power. 

Coastal States Gas Producina Co. v. Pate, suvra; Tennsasco 

Gas Gatherino Co. v. Fischer, 653 S.W.2d 469 (Tex. Civ. App. 

- Corpus Christi 1983, writ ref'd n.r.e.). 

Accordingly, we construe subsection B(3)(b) of article 

2.01, Texas Business Corporation Act, to require that each 

partner of a partnership that is an otherwise qualified 

carrier of oil products and that exercises the power of 

eminent domain itself be a corporation. 

P. 5054 
Honorable Kent A. Caperton - Page 6 (JM-988) 

SUMMARY 

A limited partnership with a corporate 

general partner that owns and operates a 

refined petroleum products pipeline ' 

conferred the power of eminent doma:: 

pursuant to subsection B(3)(b) of article 

2.01 of the Texas Corporation A&, but only 

if each partner, whether limited or general, 

is itself a corporation. 

Very truly yo r , LA A.& III 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

P. 5055