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THE 

## Ano-P GENEWAL

OF ‘P‘EXAS

Honorable Jerry Dellana Opinion No. WW-1397 CountyAttorney Travis County Courthouse Re: Constitutionalityof 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 constitutionalityof House Bill 45, Acts 57th Legislature, Third Called Session, 1962, chapter 28, page 73, which has been codifiedas Article 1581f of Vernon's Civil Statutes. This enactment of the Legislaturereads 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 improvementdistrictswhen suchrelocation is necessary to complete the constructionor improvementof Farm-to-MarketRoads as defined by Sub-section4-b of Article XX of Chapter 184, Acts of the Forty-seventhLegislature,Regular Session, 1941, as amended,provided the water controland improvementdistrictwhich owns the water lines to be relocated agrees to repay the county for the cost of relocating the water lineswithin twenty (20)years with interestthereon at a rate equal to that paid by the county on their Road and Bridge Fund time warrants."

Not having been referred to any particularprovisions of the Texas Constitutionby your opinionrequest we shall direct this opinion to the considerationof whether House Bill 45 is proscribed by any of the following constitutionalprovisions:

A. Section 50 of Article IIIwhich prohibits
a gift or loan of the credit of the State to any person or corporation.

B. Section 51 of Article IIIwhich prohibits the grant of public money to any individualor corporation.Honorable Jerry Dellana, page 2 (WW-1397)

C. Section 52 of Article III which prohibits legislationauthorizing any county to lend or grant public money to any individual
or corporation.

D. Section 6 of Article XVI which prohibits an appropriationof public funds for private or individualpurposes.

E. Section 3 of Article XI which prohibits a county from lending its credit or donating funds to any corporationor association.

We are aware of no other constitutionalprovisions which couldbe consideredas proscribingHouse 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 governmentalagency 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 necessitatedby the constructionor 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 Barringtonv. Cokinos, State v. Cit of Austin 160 Tex. 348, 331 S.W.2d 737 City of Sa%%tonio jr' Bexar MetropolitanWater District, 30yS.W.2d 491 (Tex.Civ. Ann. 1958, error ref.). The policy requiring the relocation of-utility lines is likewise expressed-invarious specific statutory enactments, to wit: Articles 1433, 1433a, 1436a and 143613

of Vernon's Civil Statutes. We perceive of no sound
reasonwhy water control and improvementdistricts shouldnot be treated as otherutilities 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 Barringtonv. Cokinos, supra,are well consideredopinions and contain excellent discussions of the constitutionalquestions involved in the use of public funds in payment of the cost of relocating utility facilitieswhen such is necessitatedby the exercise of the police~power. The principles of law thereinpronounced are governing in this instance.

In State v. City of Aus.ki~,supra, our Supreme Court sustained the constitutionalityof Article 6674w-4 of Vernon'sHonorable Jerry Dellana, page 3 (WW-1397)

Civil Statutes. This statute required the State to bear the cost of relocation of utility facilitiesnecessitatedby the National System of Interstateand Defense Highways. the course of the opinionat page 742 it Is stated: During

"Althoughpetitionerargues otherwise, It cannot be said that respondentsare under
an absolute and continuing legal obligation to relocate at their own expense any utility installationsowned by them and situated in public ways whenever such relocation is made necessaryby highway Improvements. Their use of streets and highways for this purpose Is simply subjectat 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 Improvementsat their own expense. This duty would arise upon, and not before, the making of a lawfuldemand for relocation of the facilities. Here the Legislaturehas empowered the State Highway Commission to construct interstateand defense highways and to direct municipalitiesand utility companies to relocate their facilities, That grant of authority is conditioned,however by the requirement that the utilities be reimbursed for the expensewhich they incur. In our opinion this does not constitute the release of an obligation to the statewithin 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 quotedwith 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 constitutionalprovisions similarHonorable Jerry Dellana,page 4 (WW-1397)

to those in this state Inhibiting the state
or its subdivisions from making donations to private corporationsor individualsappear to be rare. Those in which the question has been considereduniformly hold that state
or municipal contributionto the expense does not comewithin 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 seriouslybe questioned. While the paramount duty rests upon the railroad to provide originallyand 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 stateas representative of the public is such that the expenditure of public funds in this regard is a legitimate governmental function,and does not properly fallwithin the designation of a donation of public funds to a private enterprise. In the infinitevariety of situationswhich present themselves,the statemay properly make an adjustment of the expense, as the peculiar equities of each situationmay in its judgment dictate. In this manner the judgment of the state is supreme, subjectto judicial review only In case of fraudulentor arbitrary abuse of power."

The Courtwent 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 Constitutionfor the reason that the utility was merely restored to its formerposition by operation of the statuteand in fact derived no net gain thereby. The Court furtherheld that the constructionand improvementof public roads and ways is a governmentalpurpose for which public funds couldproperly be expended,using this languageatpage 745:

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. . .Theremoval of utility facilities which stand In the way is as necessary to the accomplishmentof 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 relocationof utility facilities which would otherwise interferewith highway improvements,and payment of the non-betterment cost thereofdoes not constitutea donation of public funds or an appropriation for a private purpose.

. . .I'

In the case of Barringtonv. Cokinos, 161 Tex. 136, 338 S.W.2d 133 (1960),our Supreme Court sustained the constitutionalityof a contractwhereby the City of Beaumont was to bear the cost of relocatinga railroad right of way through the city and the lowering of grade crossingat city streets. At page 140 of that opinion, in commentingupon the purpose of Section 3 of Article XI the Court stated:

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. . .Itdoes not prohibit all business dealingswith private corporationsand associations,but municipal funds or creditmay not be used simply to obtain for the communityand its citizens the generalbenefits resulting from the operation of such an enterprise. On the other hand an expenditure for the direct accomplishment of a~legitimatepublic and municipalpurpose is not rendered unlawful by the fact that a privately ownedbusiness may be benefited thereby."

It was furtherheld 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 .2of Article XVI of the Texas Constitution.

Adverting to the question at hand, it is Important to observe that House Bill 45 does not relievewater control and improvementdistricts of the eventualburden of the expense of the relocation of lines necessitatedby the construction
or improvementof Farm-to-MarketRoads but merely allows a county, at Its discretion, to bear the immediate cost of such relocation upon the condition that the District repay the countywith 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 improvementdistrict of the cost of relocation of its lineswhen necessitatedby the constructionor improvementof public roads and required suchHonorable Jerry Dellana, Page 6 (WW-13%')

relocation costs to be paid with public fundswould be within the prerogative of the Legislatureand not in violation of any constitutionalprohibition. Having the power to afford either complete relief or no relief from the consequencesof the exercise of the police power, we are of the opinion that the Legislaturenecessarilyhas the power to accord partial relief from the exercise of the police power in any degree
or measurewhich liesbetween 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 improvementdistrictswhen necessitatedby 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 trulyyours,

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