7 . 

THE Ano-P GENEWAL 

OF ‘P‘EXAS 

Honorable Jerry Dellana Opinion No. WW-1397 

County Attorney 

Travis County Courthouse Re: Constitutionality of 

Austin, Texas House Bill 45, Acts 57th 

Legislature, Third Called 

Session, 1962, Chapter 

Dear Mr. Dellana: 28, page 73. 

You have requested the opinion of this office regarding 

the constitutionality of House Bill 45, Acts 57th Legislature, 

Third Called Session, 1962, chapter 28, page 73, which has been 

codified as Article 1581f of Vernon's Civil Statutes. This 

enactment of the Legislature reads as follows: 

"Section 1. The counties of the State of 

Texas are hereby authorized to pay for the relocation of water lines owned by water control 

and improvement districts when such relocation 

is necessary to complete the construction or 

improvement of Farm-to-Market Roads as defined 

by Sub-section 4-b of Article XX of Chapter 184, 

Acts of the Forty-seventh Legislature, Regular 

Session, 1941, as amended, provided the water 

control and improvement district which owns 

the water lines to be relocated agrees to repay the county for the cost of relocating the 

water lines within twenty (20) years with 

interest thereon at a rate equal to that paid 

by the county on their Road and Bridge Fund 

time warrants." 

Not having been referred to any particular provisions 

of the Texas Constitution by your opinion request we shall 

direct this opinion to the consideration of whether House Bill 45 

is proscribed by any of the following constitutional provisions: 

A. Section 50 of Article III which prohibits 

a gift or loan of the credit of the State to any 

person or corporation. 

B. Section 51 of Article III which prohibits 

the grant of public money to any individual or 

corporation. 
Honorable Jerry Dellana, page 2 (WW-1397) 

C. Section 52 of Article III which prohibits legislation authorizing any county to 

lend or grant public money to any individual 

or corporation. 

D. Section 6 of Article XVI which prohibits an appropriation of public funds for 

private or individual purposes. 

E. Section 3 of Article XI which prohibits a county from lending its credit or 

donating funds to any corporation or association. 

We are aware of no other constitutional provisions 

which could be considered as proscribing House Bill 45. 

All utilities, both public and private, place their 

lines under, across, over and along the public roads and ways 

of this State subject to the plenary right and duty of the duly 

authorized governmental agency to maintain and improve such 

roads and ways in the public interest. That such utilities 

may be required to relocate their lines at their own expense 

when necessitated by the construction or improvement of the 

nublic roads or wavs is a nrincinal inherent in the assertion 

of the police power of the-State; 

161 Tex. 136, 338 S.W.2d 133 

Barrington v. Cokinos, 

St ate v. Cit of Austin 

160 Tex. 348, 331 S.W.2d 737 City of Sa%%tonio jr' 

Bexar Metropolitan Water District, 30yS.W.2d 491 (Tex.Civ. 

Ann. 1958, error ref.). The policy requiring the relocation 

of-utility lines is likewise expressed-in various specific 

statutory enactments, to wit: Articles 1433, 1433a, 1436a 

and 143613 of Vernon's Civil Statutes. We perceive of no sound 

reason why water control and improvement districts should not 

be treated as other utilities in this respect and hereby hold 

that their use of the public roads is subject to the same 

regulation and control as any other utility. 

State v. City of Austin, supra, and Barrington v. 

Cokinos, supra, are well considered opinions and contain excellent discussions of the constitutional questions involved 

in the use of public funds in payment of the cost of relocating 

utility facilities when such is necessitated by the exercise 

of the police~power. The principles of law therein pronounced are 

governing in this instance. 

In State v. City of Aus.ki~, supra, our Supreme Court 

sustained the constitutionality of Article 6674w-4 of Vernon's 
Honorable Jerry Dellana, page 3 (WW-1397) 

Civil Statutes. This statute required the State to bear the 

cost of relocation of utility facilities necessitated by the 

National System of Interstate and Defense Highways. 

the course of the opinion at page 742 it Is stated: 

During 

"Although petitioner argues otherwise, 

It cannot be said that respondents are under 

an absolute and continuing legal obligation 

to relocate at their own expense any utility 

installations owned by them and situated in 

public ways whenever such relocation is made 

necessary by highway Improvements. Their use 

of streets and highways for this purpose Is 

simply subject at all times to a valid exercise 

of the police power of the state. It Is only 

when the full measure of that power is exerted 

that they are obligated to make the installations 

conform to highway Improvements at their own 

expense. This duty would arise upon, and not 

before, the making of a lawful demand for relocation of the facilities. Here the Legislature has empowered the State Highway Commission to construct interstate and defense 

highways and to direct municipalities and 

utility companies to relocate their facilities, 

That grant of authority is conditioned, however by the requirement that the utilities 

be reimbursed for the expense which they incur. In our opinion this does not constitute 

the release of an obligation to the state within 

the meaning of Article III, Section 55, of the 

Constitution." 

The following language from the opinion of Justice 

McClendon in City of Beaumont v. Priddie, 65 S.W.2d 434 (Civ. 

App. 1933) judgment of lower courts reversed and cause dismissed 

for mootness. Texas & N.O.R. Co. v. Priddie, 127 Tex. 629, 

S.W.2d 1290 (193b) is quoted with approval in State v. 

95 

of Austin, supra, it page 744: - city 

- 

"But, although the state may compel the 

railroad to bear the entire expense of grade 

separation, nevertheless it is not required 

to do so, but may bear the entire expense itself, or apportion it between Itself, and the 

railroad, While this power it generally recognized, the cases in which it has been challenged 

as violative of constitutional provisions similar 
Honorable Jerry Dellana, page 4 (WW-1397) 

to those in this state Inhibiting the state 

or its subdivisions from making donations 

to private corporations or individuals appear 

to be rare. Those in which the question 

has been considered uniformly hold that state 

or municipal contribution to the expense does 

not come within such Inhibition. Lehl h 

Valley R.Co. v. Canal Board, 204 N.Y. & 71, 

97 N.E. 964, Ann.Cas. 1913C, 12~28; Brooke 

v. City of Philidelphia, 162 Pa. 123, 29 

A. 387, 24 L.R.A. 781. We think the soundness 

of this holding cannot seriously be questioned. 

While the paramount duty rests upon the railroad to provide originally and thereafter to 

maintain the safety of the crossing, regardless 

of the requirements in that regard brought 

about by changes in conditions, still the 

interest therein of the state as representative 

of the public is such that the expenditure of 

public funds in this regard is a legitimate 

governmental function, and does not properly 

fall within the designation of a donation of 

public funds to a private enterprise. In the 

infinite variety of situations which present 

themselves, the state may properly make an 

adjustment of the expense, as the peculiar 

equities of each situation may in its judgment dictate. In this manner the judgment 

of the state is supreme, subject to judicial 

review only In case of fraudulent or arbitrary 

abuse of power." 

The Court went on to hold that Article 6674w-4 did 

not amount to a grant or loan of public money in violation of 

Section 51 of Article III or of Section 6 of Article XVI of the 

Texas Constitution for the reason that the utility was merely 

restored to its former position by operation of the statute and 

in fact derived no net gain thereby. The Court further held 

that the construction and improvement of public roads and ways 

is a governmental purpose for which public funds could properly 

be expended, using this languageat page 745: 

11 

. . .The removal of utility facilities 

which stand In the way is as necessary to the 

accomplishment of that purpose as the:removal 

of trees and hills. Unlike trees and hills, 

however, the utility lines must be moved and 

restored at another location If the people 
. - 

Honorable Jerry Dellana, Page 5 (WW-13%') 

are to receive services that are essential 

to the protection of their health and safety. 

The public thus has a direct and immediate 

interest In the relocation of utility facilities 

which would otherwise interfere with highway 

improvements, and payment of the non-betterment cost thereof does not constitute a donation 

of public funds or an appropriation for a private purpose. . . .I' 

In the case of Barrington v. Cokinos, 161 Tex. 136, 

338 S.W.2d 133 (1960), our Supreme Court sustained the constitutionality of a contract whereby the City of Beaumont was to 

bear the cost of relocating a railroad right of way through 

the city and the lowering of grade crossing at city streets. 

At page 140 of that opinion, in commenting upon the purpose 

of Section 3 of Article XI the Court stated: 

11 

. . .It does not prohibit all business 

dealings with private corporations and associations, but municipal funds or credit may not 

be used simply to obtain for the community and 

its citizens the general benefits resulting 

from the operation of such an enterprise. On 

the other hand an expenditure for the direct 

accomplishment of a~ legitimate public and 

municipal purpose is not rendered unlawful 

by the fact that a privately owned business 

may be benefited thereby." 

It was further held that the contract to bear the 

cost of relocation of the railroad ri ht of way did not violate 

Section 51 of Article III or Section .2 of Article XVI of the 

Texas Constitution. 

Adverting to the question at hand, it is Important 

to observe that House Bill 45 does not relieve water control 

and improvement districts of the eventual burden of the expense of the relocation of lines necessitated by the construction 

or improvement of Farm-to-Market Roads but merely allows a 

county, at Its discretion, to bear the immediate cost of such 

relocation upon the condition that the District repay the 

county with interest over a 20 year period. The pronouncements 

in the above discussed decisions leave no doubt that legislation 

which entirely relieved a water control and improvement district 

of the cost of relocation of its lines when necessitated by the 

construction or improvement of public roads and required such 
Honorable Jerry Dellana, Page 6 (WW-13%') 

relocation costs to be paid with public funds would be 

within the prerogative of the Legislature and not in violation 

of any constitutional prohibition. Having the power to afford 

either complete relief or no relief from the consequences of 

the exercise of the police power, we are of the opinion that 

the Legislature necessarily has the power to accord partial 

relief from the exercise of the police power in any degree 

or measure which lies between the two extremes. Therefore 

you are hereby advised that House Bill 45 is constitutional. 

SUMMARY 

House Bill 45, Acts 57th Legislature, Third 

Called Session, 1962, chapter 28, page 73 which 

authorizes counties, at their discretion, to bear 

the cost of relocating the lines of water control 

and improvement districts when necessitated by 

the construction or the imporvement of Farm-toMarket Roads upon the condition that the county 

be repaid by the district over a 20 year period 

with interest is constitutional. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

By: cp)‘o b 

W. 0. Shultz 

Assistant 

WOS:mkh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

John Reeves 

Morgan Nesbitt 

Coleman Gay 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore