Untitled Texas Attorney General Opinion ( 1972 )

THE ATTORNEY GENERAL
,OF TEXAS
Aus~nv. -78711
Sept.embsrlS~ 1972
Honorable C. J. Eden .,Opinion No. M- 1218
County Attorney
Stephens County.~ Rer Authority of the Com-
110 East -Walker missioners Court to
Breckenridge, Texas 76024 grant a permit to a
corporation for use
of,right-oi,lrlaysof
county roads for
locating pipeline for
transmission
. ~of water
in connection with
water flood operation
Dear Mr. Eden: in oil p.roduction.
'.
We have received your recent request, .accompanied
by your able brief, for an opinion of this department on the
following question:
,"Whether or not the Conmkssidners Court of
Stephens County or.a Commissioner of said county
has the authority.to grant a permit or license
to give consent for a Texas corporation, quali-
fied.as a public utility, to lay pipeline along
the right-of,-way of a county .road.for the trans-
mission of water to a s,econd corporation, ,an oil
produoing'corporation, for use.,,inwater-floe@
operations :inzo'nne&ion with.the production of
oil."
Yourletter which~accompanied your request indicates
that the applicant is. "Gra-Pet Gas,Company, a~Texas ,corpora-
tion, which corporation is classified as a public utility. . . .'I
An examination of the Articles of Incorporation of
the Gra-Pet Gas Company leaves considerable doubt in our mind
Hon. C. J. Eden, page 2, (M-1218)
as to whether the purpose clause gives the corporation the
authority to buy and sell water. Nor do we find in the arti-
cles any provision which would classify the corporation as a
public utility in connection with the sale of water.
We are of then opinion that absent an amendment to
the articles to remedy the above stated deficiencies, the
Commissioners Court has no power to grant the permit, nor
doesthe corporation have the right to lay the lines.
We are of the opinion, however, that a Texas corpor-
ation with authority to sell and transport water as a public
utility would have the right under Article 1433, Vernon's Civil
Statutes, so far as the county is concerned, to lay its lines
along the right of'way of a county road.
Article 1433 reads as follows:
"Any water corporation shall have the power
to sell and furnish such quantities of water as
may be required by the city, town or village
where located for public or private buildings or
for other purposes; and such corporation shall
have the power to lay pipes, mains and conductors
for conducting water through the streets, alleys,
lanes and squares ,of any such city, town or vil-
lage, with the consent of the governing body
thereof, and under such regulations as it may
prescribe. Such cornoration is further author-
ized to lav its pipes, mains and conductors
and,other~ fixtures forconductinq~water throuqh,
under, alonq, across and over all'public roads,
streets and waters lvinq and situated outside
the territorial limits of any such city: town,
or villaqe in such manner as not to incommode
the public in the use of such roads, streets
and waters. Any such corporation shall notify
the State Highway Commission, or the Commissioners
Court having jurisdiction,' as the case may be,
-5973-
.
Hon. C. J. Eden, page 3; (~-1218)
when. it.proposed-to build 1ines:along the right
of way of any.State Highway, or county road;.
outside the limits ofiany 'incorporated city'or
town, whereupon theyHighway .Commission, or the
Commissioners Court'may~, if. it SOS desires,~
designate the'place alon the,right,of,way:
where such lines shall be constructed. The
public-agency, having' jurisdiction' or 'control
of ~a highway:$or county'.ruad,:that isi the:.:.
Highways Commission~orthe Commiss%oners- Court,
:be, may-:require.any such cor-
.:as:the,-:case~,may
poration, at its 'bwn,,expense;:to. relocate:its
lines on a State Highway or county road outside
..the:.limits,
_.._ ., ofan inaorporated..city:or~town; so
,,
asto-permit~'the &$&ng~:,or charqfng pf: trafffq.
,~:.lanes. by.giving thirty,,..QC)-days'~writtenhotic,e
tosuch .corp&ati'on~'a&specifying .the'line or,'
..linesYto``.be.moved,``~and indicatirq the pla&on,
the,ne~.~right of way,were ~such-line or lines.
.mny,-.be,..placed..
'When deemed necessary'to:pre- ':
,..serve.~the.public health;~ any company .or corpora-
,tion-chartered:under:the.-laws of this .State::for
the purpose.lof.,,,constructing:waterworks or' fur-."
ni,shing water supply :ta'.anycity .ortown,. shall.
have::the.right:of :emin'entdomain ~to condemn.'
,private property ~necessary.',for the construction
of supply reservoirs:~or standpipes~ for water
work.:Actsl87.4, ‘p. 134; G.L. ,Vol. 8. p. '136:
Acts'l909, .p. 8; Acts 1949.;.51st.Leg.. p. 137~0,
ch. 622, S 1." (Emphasis added.) ,t:
,,Attorney.lOene~al'e'.Opi~ion,Nb;M-508 (1969) includes
'the follautin~.:pete~ne~t'~
l&+aQ&:
.
"It has been recognized further that.it is
in the public interest to,receive utility services:
therefore; oublic;utilities~ are authorized to use
~the streets-and highways.:"Gtate v. City of',Austin'
(State,v. ~City.of-,Dallasj; 160 Tex. '348; 331 S.W;2d
131 (1960).
-5974-
I
Hon. C. J. Eden, page 4, (M-1218)
"The Legislature acting for the State has
primary and plenary power to control public roads
and streets. Recognizing this proposition,'the
Court in State v. City of Dallas (State v. City
of Austin), 319 S.W.2d 767 (Tex.Civ.App. 1959.
aff. 331 S.W.2d 737) said at page 773:
'There can be no question but that the
Legislature can lawfully,,permit cities and
private corporations to place facilities
in streets and highways to provide essential
utility.service for the public, . . .'
"The Legislature has seen fit to grant direct
statutory authorization to public utilities to
use public roads~.and~hiqhwavs. Some,such authority
isfound in Articles 1416, .1433, 1436a and 143633,
Vernon's Civil Statutes. .IGuld therefore appear
that Article 6203d, Vernon's Civil Statutes, would
be rendered inapplicable to the q'uestion presented,
since no additional grant of an easement would be
necessary in order to entitle public utilities to
take advantage of the right-of-way of existing
public roadways. Accordingly, the Texas Board of
Corrections would not be obligated to collect, nor
public utilities required to pay, for placing lines
in, on, along or across existing public roadways
traversing State land under the custody and control
of the Texas Department of Corrections." (Emphasis
added.)
In view of all of the foregoing, a Texas water
corporation, qualified as a public utility, hasthe right to
lay its pipes along the right of way of county roads pursuant
to Article 1433.
Note that we have held that under certain facts, the
corporation has the right to lay its lines. This is under
authority of the Legislature as expressed in Article 1433 and
-5975-
Hon. C. J. Eden, page 5, (M-1218)
is not pursuant .to any permit issued by the county. Indeed,
the statute does not provide for a permit except as to where
on the right,of way the pipes shall be laid.
We make the above statement for the reason that the
question hae~ been raised of ~claims that the abutting land
owners might have against the county where the county right
of way has been obtained by ,prescription, ,As we interpret
Article 1433, the county is not a party to any .action taken
by the corporation. Such action is under authority of a
legislative.enactment, and the doctrine of sovereign immunity
protects the State from suit.
With reference to the right under.a State statute
of the utility to lay its lines, see Heldt v. Southwestern
Bell Te1ephon.e Co., 482 S.W.Zd 352, 356 (Tex.Civ.App. 1972)
where the Court wrote, in what we co,nsider a'valid analogy:
"Appellee. under the authority of Article
'V.A.C.S.., is authorized to erect its poles,
.~1464~,
w~ires and other fixtures along, upon and across
any public roads,, streets and waters-of Texas,
subjeot only to the restriction that same must
be done~ in a manner as not to incommode the pub-
lic inthe use of such roads, streets, and waters;
This is a right granted by the State.which cannot
be denied by a municipality or city. . . ."
(Emphasis added.)
SUMMARY
-------
A Texas, corporation, provided it is quali-
fied as a water corporation and as a public
utility, has,the right under Article 1433,
Vernon's Civil Statutes, to lay its pipes along
the right of way of county roads, subject to
the conditions set out in said Article.
-597 6-
.
Hon. C. J. Eden, page 6, (~-1218)
truly yours,
Prepared by James S. Swearingen
Assistant Attorney Gener~al
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Pat Bailey
Jack Sparks
Charles Lind
Scott Garrison
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFREDWALKER
mecutive Assistant
NOLA WHITE
First Assistant
-5977-