. . 

FVILL WI&SON 

A-RNEY a3ENERAx. 

Axnw- 11, TEXAS 

November 18, 1960 

Honorable E. E. Coons Opinion No. WW-961 

.Zounty Attorney 

Sherman County Fle: Whether the Commissioners' 

Stratford, Texas Court may require gas plpeline companies to move or 

lower their pipelines along 

or aorouu pub110 roads whlok 

are to be paved wlthout payDuar Mr. Coons: lng compensation therefor. 

You have requested the opinion of this offioe on 

the following question: 

May the Commlsslone~s~ Court of Shsrman County require gas pipeline companies 

to move or lower their pipelines along or 

aoross pub110 roads whloh are to be paved 

without paying compensation theraiart 

In the caee of State v. City .of Austin, %X. 

- 331 S.W. 26 737 (1960) the.Supreme Court of rm8 w&8 

confronted with the questlo; of the validity of an enectmpnt 

of the Legislature which provided that the relocation of 

utility faoilltles necessitated by the improvement of hlghways established as a part of the National SvfJtem of Interstate and Defense Hlghwaye be made by the utility at the oost 

and expenae of' the State. In upholdlng this statute the 

Court, in the courue of Its opinion, also stated the 18W 

applicable to the situation ralaed by rour qUestlO& 

At page 741 of the opinion we find it stated: 

"In the absence of assumption by the 

state of part of the expense, it Is clear 

that respondents could be required to-Femove at their own expense any Installations 

owned by them and located In public rights 

of way whenever such relocation Is made. 

necessary by highway improvements. See 

City of San Antonio v. Bexar Metropolitan 
Mr. E/E. Coons, Page 2 (WW-96;L) 

Water District, Tex. Civ. App., 309 S.W. 

26 491 (wr. ref.); City of San Antonio v. 

San Ant&lo St. R. Co., 15 Tex. Clv. App. 

1, 39 S.W. 136 (wr. ref.); State of 

lp;my; v. United States, 6 Cir., 256 

. As pointed out in the Bexar 

Mktropolltan Water District case, the main 

purposes of roaik and streets are for 

travel and traneportatlon. While public 

utllltles may use the same for laying their 

lines, such us+ IS Subject to reasonable 

regulation by either the state, the county 

or the clty,~ as the case may be. The 

utility may always be required, In the valid 

exercise of the police power by proper 

governmental authority, to remove or adjust 

(ita installations to meet the need8 of the 

public for t.ravel and transportation." 

Quoting further from the same zprce and page: 

,I Many city ordknoes a8 well 

a8 ?fevk&'of our statutes authorizing 

utiSlty oompanles and municipal oorporations to erect their lines along'and upon 

'public roads end streets stipulate that 

the owner of the facility may be required 

to relocate the same at its own expense 

80 as to peimlt road and street lmprovements. See Articles 1433, 1433a, 1436a, 

and 1436b, Vernon's Ann. Tex. Clv. Stat. 

These statutes and ordlnane@s express the 

public policy of the state a8 it existed 

at,the time of their adoption. . . ." 

Article 1436b of Vernon.1s Annotated Texas Civil 

Statutes, es referred to by the Court, read8 In part a8 

follows: 

"Section 1. Any person, firm or oorporation or Incorporated city or town engaged.ln the bUslne88 of transporting or 

distributing gas for public consumption 

shall have the power to play and maintain 

pipes, mains, conductors and other faollities used for oonduotlng gas through, under, 
pp. E. E. Coons, Page 3 (m-961) 

along, across Bnd over all pub,llc hlghways, public roads, public streets and 

alleys, and public waters within this 

State; provided that within the corporate limits of an Incorporated city or 

Incorporated town such right shall be 

dependent upon the consent and subject 

to the dlrectlon,of Its governing body. 

Any such person, firm or corporation or 

incorporated city or town Shall notify 

the State Highway Commission or the 

Commissioners Court having jurisdiction, 

as the case may be, when It proposes to 

lay any such pipes, mains, conductors 

and other fixtures for conducting gas 

within the right-of-way of any state 

highway or county road outside the limits 

of an Incorporated cltJr or Incorporated 

town, whereupon the Highway CznmI88lon or 

the Conrmlssioners Court, If It so de8Ires, 

may designate the place upon the rlght-ofway where the 881116 shall be laid. The 

poratlon or Incorporated city or town and 

specifying the facility or facllltles to be 

moved and Indicating the place on the new 

right-of-way where such facility or faolllties may be placed. Such person, firm or 

corporation or Incorporated clty.or town 

shall replace the grade and surface Of such 

road or highway at its own expense." 

(%phaSiS added) 

It is our opinion that the language quoted from State 

v. City of Austin, su ra and the plain unequivocal language 

Article 143bb requires -%A at your question be answered In the 

affirmative. 
Mr. E. E. Coons, Page 4 (w-961) 

You are therefore advised that the Commissioners1 

Court of Sherman. County may require the gas pipeline in question to be moved or lowered by the pipeline company at the 

expense of such OompanieS by giving notiOe,in compliance 

with Article 1436b. 

SUMMARY 

The Commlssloners~ Court of Sherman County, 

Texas, is authorized to require gas pipeline 

companie8,WhOSe line8 i?Un along or across 

public roads which are to be paved,to move 

or lower such pipelines at their own expense 

and without reimbursement from the State. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

BY 

WoS:nrm..I 

APPROV&: 

. 

OPINION COMMITTEE 

w. v. Geppert , chairman 

w. Ray scrmggs 

Harris Tolcr 

Llnward Shivers 

B. H. Tlmmlns, Jr. 

BY: Leonard Pasamore