December 1, 1988

Honorable KentA. Caperton Chairman Committee onJurisprudence 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 thepartnership owns and operates arefined 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 donot indicate inyour request foran opinion or inthe correspondence accompanying your request whether each partner in the limited partnership is a corporation. We conclude that, ifeachpartner inthe limited partnership is a corporation, the limited partnership does have the power of eminent domain. However, ifeven one of thepartners is an entity other than a corporation, the limited partnership has no such power. Section 111.019 of theNatural 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 onand condemn the land, rights-of-way, easements, andproperty of any person or corporation necessary for the



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construction, maintenance, or operation of the common carrier pipeline.
The phrase tfcommon carrier" is defined at section 111.002 of theNatural Resources Code:

Aperson isa common carrier subject to the provisions of this chapter if it: (1)owns, operates, ormanages a pipeline or anypart ofa pipeline in the State of Texas for the transportation of crude petroleum to or for thepublic forhire, or engages inthebusiness of transporting crude petroleum by pipeline; (2)owns, operates, ormanages a pipeline or anypart of a pipeline in the State of Texas for the transportation of crude petroleum to or for thepublic forhire and the pipeline isconstructed ormaintained on, over, orunder a public road orhighway, or isan entity in favor of whom the right of eminent domain exists; (3)owns, operates, ormanages a pipeline or anypart ofa pipeline in the State of Texas for the transportation of crude petroleum to or for thepublic forhire which is or may be constructed, operated, or maintained across, on, along, over, or under the right-of-way of arailroad, corporation, or other common carrier required by law to transport crude petroleum as a common carrier: (4)under lease, contract of purchase, agreement tobuy or sell, or other agreement orarrangement of any kind, owns, operates, manages, or participates in ownership, operation, or management ofa pipeline or part of apipeline inthe State ofTexas for the transportation of crude petroleum, bought of others, from an oil field or place of production within this state to any distributing, refining, ormarketing center or reshipping point within this state: (5)owns, operates, ormanages, wholly or partially, pipelines for the transportation

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forhire of coal in whatever form or of any mixture of substances including coal in whatever form: or (6)owns, operates, ormanages, wholly or partially, pipelines forthe transportation of carbon dioxide inwhatever form to or for the public forhire, but only if such person files with the commission a written acceptance of theprovisions 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 theNatural Resources Code by its terms appears to limit themeaning 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 '[14thDist.] 1980,writ ref'd n.r.e.) [hereinafter Pm], stands forthe proposition that carriers of refined petroleum products have been conferred eminent domain power aswell, notby a section of theNatural Resources Code, but by aprovision of the Texas Business Corporation Act. We agree.
In Phillins, apipeline company sought to condemn real property forthe purpose of constructing apipeline that was to carry an ethane-propane mixture, arefined 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 thepower of eminent domain on carriers other than carriers of crude petroleum. Phillins, 610 S.W.2d at 206. Article 2.01 B(3)(b) ofthe Texas Business Corporation Act provides the following:

B.No corporation may adopt thisAct orbe organized under thisAct or obtain authority to transact business inthis State under this Act:

P . . . .

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(3) If among its purposes for the transaction ofbusiness inthis State, there is included, however worded, a combination of the twobusinesses 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 inthe oilpipe linebusiness inthis State: provided, however, that a corporation engaged inthe oilproducing business inthis State which owns or operates private pipe lines in and about its refineries, fields or stations orwhich owns stock of corporations engaged inthe oil pipe linebusiness 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 inthevine 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 codewas 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, notby the Texas Business Corporation Act, but by theNatural Resources Code. --.

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question iswhether 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 inpartnership 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 topermit an otherwise qualified carrier organized as a limited partnership with a corporate general partner to exercise the power of eminent domain, only ifeach partner of such a limited partnership itself is a corporation. First, amaxim 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 [14thDist.] 1972,writ ref'd n.r.e.). The express mention in subsection B(3)(b) ofarticle 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: thepower of eminent domain will notbe conferred from adoubtful 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 thepower 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 apartnership that isan otherwise qualified carrier of oilproducts and that exercises the power of eminent domain itself be a corporation.

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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 ifeach partner, whether limited or general, is itself a corporation. Very truly yo r , 

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A.& JIM MATTOX Attorney General ofTexas
MARY KELLER First Assistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared byJim Moellinger Assistant Attorney General

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