Untitled Texas Attorney General Opinion ( 1970 )

Honorable Ward P. Casey Opinion No.?+596 County Attorney Waxahachle, Texas Re: May Ellis County Road District No. 1.6 pay Attention: Hon. Wesley Gene Knize the City of Ennis for Assistant County Attorney removal of the City's water pipeline from the right-of-way of State Highway No. 34, located Dear Mr. Knlze: within the Road District. You have requested an opinion of this office as to the following: 1. Nay Ellis County Road District Number 16 the bonds of which were issued for the procurement of additional right-of-way for the widening and expansion of State Highway Number 34 within the District, pay for the removal of water pipeline lying within the existing right-of-way of State Highway Number 34 which pipeline is the property of the City of Ennls, Texas (the portion In question being located outside the city limits of the City of Ennis and within Road District No. 16). To answer this question properly, it first must be asked, if the Road District has lawful authority to expend funds from w source for the above stated purpose. Road District No. 16 issued its bonds for right-of-way procurement as its contribution to the widening of State Highway No. 34 under various statutory authorities, including Article 6673e-1, Vernon's Civil Statutes. Such right-of-way, once pro- cured and Included within the State Highway System, same being the facts In our case, said highway Is within the exclusive control and ownership of the State through its State Highway Commission. Article 6673 and Article 6674s~9, V,C.S. The water pipeline In question was laid by the City within the State owned right-of-way either by agre,ementwith the High- way Commission or is there at suffrance under the authority -2840- Honorable Ward P. Casey, page 2 (M-596) granted in Article 1433a, V.C.S,, which provides: "Any Incorporated city or town,...is authorized to lay its plpes,...for conducting water through, under, along across and over all public roads and water iying and situated outside the territorial limits of such city or town in such manner as not to incommode the public in the use of such roads....The public aaencv having durlsdlctlon or control of a Article 1433a, quoted above, creates a statutory obli- atlon upon a munlclpality to move its wa'terpipeline from tate Highway right-of-way at its own expense. Where, as here, there is no property right to be acquired and the pipeline may be required to be removed at the expense of the City (Attorney General Opinion ~-380 (1969), it is our opinion that Ellis County Road District No. 16 does not have authority to pay the cost of removing City of Ennis pipeline lying within the right-of-way of State Highway No. 34, out- side the city limits of the City of Ennis, with bond proceeds or any other Road District funds. SUMMARY Ellis County Road District No. 16 is without legal authority to pay out of bond proceeds or any other district funds for the cost of pipeline re- moval from the right-of-way of State Highway 34 which lies within the District, where the pipeline belongs to the City of En&s, Texas and is located outside its city limits. n -2841- Honorable Ward P. Casey, Page 3 CM- 596) Prepared by Joseph H. Sharpley Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Acting Co-Chairman Fisher Tyler Roland Allen Thomas Sedberry Earl Hines John Reeves Meade F. Griffin Staff Legal Assistant Alfred Walker Executive Assistant Nola White First Assistant -2842-