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FVILL WI&SON A-RNEY a3ENERAx. Axnw- 11, TEXAS

November 18, 1960

HonorableE. E. Coons OpinionNo. WW-961 .Zounty Attorney Sherman County Fle: Whether the Commissioners' Stratford,Texas Courtmay 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 compensationtherefor.

You have requested the opinion of this offioe on the followingquestion:

May the Commlsslone~s~ Court of 

### Shsrman County require gas pipeline companies to move or lower their pipelinesalong **or** aoross pub110 roads whloh are to **be** paved without paying compensationtheraiart In the caee of State v. City .ofAustin, **%X.**

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

with the questlo; of the validity of an enectmpnt of the Legislature which provided that the relocation of utility faoilltlesnecessitated by the improvementof hlghways establishedas a part of the National SvfJtem of Interstate and **Defense** Hlghwayebe 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 applicableto the situationralaed by rour qUestlO&

At page 741 of the opinionwe find it stated:
"In the absence of assumptionby the state of part of the expense, it Is clear that respondentscould 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. necessaryby highway improvements. See City of San Antoniov. Bexar MetropolitanMr. E/E. Coons, Page 2 (WW-96;L)

Water District,Tex. Civ. App., 309 S.W. 26 491 (wr. ref.); City of San Antoniov. 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 streetsare for travel and traneportatlon. While public utllltlesmay use the same for laying their lines, such us+ IS Subject to reasonable regulationby 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 governmentalauthority,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 statutesauthorizing utiSlty oompanlesand municipal oorporations to erect their lines along'andupon 'publicroads end streets stipulatethat the owner of the facilitymay 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'sAnn. Tex. Clv. Stat. These statutesand ordlnane@sexpress the public policy of the state a8 it existed at,the time of their adoption.

. . ." Article 1436b of Vernon.1s AnnotatedTexas Civil Statutes,es referred to by the Court, read8 In part a8 follows: "Section1. Any person, firm or **oor**

poration or Incorporated city or town engaged.ln the bUslne88 of transportingor distributinggas for public consumption shall have the power to play and maintain pipes, mains, conductorsand other faollities used for oonduotlnggas through,under,pp. E. E. Coons, Page 3 (m-961)

along, across Bnd over all pub,llchlghways, public roads, public streets and alleys, and publicwaters within this State; provided that within the corporate limits of an Incorporated city or Incorporatedtown such right shall be dependentupon the consentand subject to the dlrectlon,of Its governingbody. Any such person, firm or corporationor incorporatedcity or town Shall notify the State Highway Commissionor the Commissioners

Court having jurisdiction, as the case may be, when It proposes to lay any such pipes,mains, conductors and other fixturesfor conductinggas 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 CznmI88lonor the Conrmlssioners

Court, If It so de8Ires, may designatethe place upon the rlght-ofway where the 881116 shall be laid. The

poratlon or Incorporated city or town and specifyingthe facility or facllltles to be moved and Indicatingthe place on the **new** right-of-way

where such facility or faolllties may be placed. Such person, firm or corporationor Incorporatedclty.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 languagequoted 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 thereforeadvised that the Commissioners1 Court of Sherman.

Countymay require the gas pipeline in question to be moved or loweredby the pipeline company at the expense of such OompanieSby giving notiOe,in compliance with Article 1436b.

SUMMARY

The Commlssloners~ Court of Sherman County, Texas, is authorizedto require gas pipeline companie8,WhOSe

line8 i?Un

along or across public roads which are to be paved,tomove or lower such pipelinesat their own expense and without reimbursement from the State.

Yours very truly,
WILL WILSON AttorneyGeneral of Texas

BY

WoS:nrm..I
APPROV&:

. OPINIONCOMMITTEE w. v. Geppert

, chairman

w. Ray scrmggs Harris Tolcr Llnward Shivers B. H. Tlmmlns, Jr.

BY: Leonard Pasamore