The Attorney’ General of Texas 

F&ruary 21, 1986 

JIM MAllOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin, TX. 76711-2546 

51214752501 

Telex 9101674-1367 

Telecopier 512/4750266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

2141742.6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

915/533-3464 

1001 Texas. Suite 7W 

Houston, TX. 77002-3111 

71312255666 

605 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

6061747-5238 

4309 N. Tenth. Suite S 

McAtlen. TX. 76501-1665 

512/882-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205-2797 

512/2254191 

An Equal OppOrtUnityI 

Affirmative Action Employer 

Honorable E. Bruce Curry 

District Attorney 

521 Earl Garrett Street 

Kerrville, Texas 78028 

Opinion No. .JM-432 

Rc: Whether a county may leaec 

the right to cross county rightof-way to a pipeline company 

Dear Mr. Curry: 

You inform us that the Gillespie County Commissioners Court has 

established a poHcy whereby a pipeline company is required to obtain 

a permit from the court before running pipelines under public roads or 

highways located within the county. Your letter also indicates that 

the county's policy includes provisions whereby the county nay lease 

such right-of-way crossings to a pipeline company in order to receive 

annual payments. :Cn that regard, you ask whether a county has the 

authority to lease such right-of-way crossings to a comon carrier 

subject to chapter 111 of the Natural Resources Code. 

The legislature, having declared pipeline companies to be common 

carriers, has grmted them the right to lay pipelines "along, across, 

or under" public mads or highways. See Nat. Res. Code §§lll.O20(a), 

111.002. A count:7 commissioners courthas been granted the limited 

authority to app'cove and establish guidelines to regulate these 

pipelines. See Nr.t. Res. Code 5111.020(b)(4). Section 111.020(b)(4) 

provides that: 

(b) l?he right to run a pipeline or telegraph 

or telephone line along, across, or over a public 

road or highwaJl may be exercised only on condition 

that: - 

(4) no pipes or pipelines are laid parallel 

wit'h and on a public highway closer than 15 

feet from the improved section of the highwag except with the approval and under the 

dimction of the commissioners court of the 

Giaty in which rhe public highway is 

E&ed ---* (Emphasis added). 

Thus, the Gillesp:Le County Commissioners Court may require the 

pipeline company t:o obtain a permit which is reasonably related 

to carrying out the authority explicitly granted in section 

111.020(b)(4). -- See Tex. Const. art. V, 918; Cauales v. Laughlin, 214 

p. 1980 
Ronorable E. Bruce Curry - l?age 2 (JM-432) 

S.W.2d 451, 453 (Tex. 1941;). Section 111.020(c) requires the common 

carrier to compensate the "county or road district" for any damage 

done to the public road or highway. See Nat. Res. Code §lll.O?O(c). 

We believe that these provisions do notgrant the county cormnissioners 

court the additional authority to lease right-of-way crossings to a 

common carrier pipeline company. 

E!oreover, common carrlcra are regulated exclusively by the Texas 

Railroad Commission under chapter 111 of the Natural Resource Code. 

See Nat. Res. Code, 4111.COl et seq. 

zides that a common carrier, 

Section 111.020(d) expressly 

in order to acquire the right of 

constructing pipelines along, across, or under public roads and 

highways must consent to bo regulated by chapter 111. Such consent is 

"in consideration of the rights acquired." This language directly 

implies that the exchange o,f rights to construct for the power of the 

state to regulate is both rutual and exclusive, and no other power is 

conferred on the county to lease or convey the realty in question. 

Nat. Res. Code §111.02O(~j3. Thus, article 1577, V.T.C.S., which 

establishes a procedure whereby a county commissioners court may lease 

county owned real estate, dl>es not apply to common carrier pipelines. 

See V.T.C.S. art. 1577 (establishes procedures for public auction). - 

SUMMARY 

Section lll.C2O(b)(4) does not authorize a 

county commissioners court to lease right-of-way 

crossings to pipc:line companies. which are common 

carriers subject, to chapter 111 of the Texas 

Natural Resource (lode. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attormy General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee: 

Prepared by Tony Guillory 

Assistant Attorney General 

p. 1981