Untitled Texas Attorney General Opinion ( 1963 )

Honorable D. C. Qreer
State Highway Engineer
Texas HI hway Department
Austin 1& , Texas
: Opinion No..C-139
Re: Authority of Highway
Commission to refuse
permits to place gas
pipelines on highway
right of ways.
Dear Mr. Greer:
In your letter request, you inquire If the Highway Commission
has:dlsctietlonaryauthorit'y to grant &? refuse applicationsto
permXt gas transportationpipelines.along highway right of ways
that are not Intended to service the roadside development adjacent
to the particular sectaon of highway Involved but are for the
transportationof gas usually under considerablepressure to some
other area where lo&al service might be Indicated.
Article 1436b, Vernona' Civil Statutes, reads as follows:
"Use of'roads and sttieetsIn distributionof gas"
Section 1. 'Any person, firm or corporationor ln-
corporated city or town engaged In the business of
transporting or distributinggas for public consump-
tion shall have the power to lay and maintain pipes,
mains, conductors and other facilities used for con-
d tingg th Rh, tinder;along. across and over
a:"1publirhlg%&, public roads, public streets
and alleys, and public waters,wlthl this State; pro-
vided that HIthIn the~corporate1iGts of an lncor-
poreted city br Incorporated
lncorporetiedtown such right shall
be dependent upon the consent and subject to the gov-
erning body. &y such person, firm or corporation
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Honorable D. C. Gre,er,page ! (Opinion No. CT139
or Incorporatedcity or town shall notify the State
Highway Commission oP~%he:Qommlssloners' Court hav-
ing 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 en Incorporatedcity 6F Incorporatedtown, where-
upon the Highway Commission or the Commlssloners~
Court, If It so desires, may designate the place upon
the right of way where the same shall be ,lald. The
public agency having jurisdictionor control of a
highway or county road, that Is, the Highway Commis-
sion or the Commissioners'Court, as the case may
be, may require any such person, firm or corporation
or Incorporatedcity or town at Its own expense to
relocete.ltspipes, malnsj conductorsor~other f%x-
tures for,conductlnggas on a state highway or county
roed.outsldethe limit6 of an Incorporatedcity ore
Incorporatedtown so as tb ````~,``,````$io~r~a``
changing of traffic lanea,
written notice to such person, firm or corporation
or Incorporatedc$ty or town and specifying th$ fa-
cility or facilities to be moved and Indicating the
place oh the new right,-of.waywhere such``'fecllity T
or facllltlesmay be placed., Such person, firm or
corporationor Incorporatedcity ortown shall replace
the grade and;surCaceof such,'road,or h~g``~,at Its
8..,:
'~ 'ownexpense.'I
Yn arriving et leglsla$lvelhtent,'l~'lsof &mazy lm-
portance tb:ascertain the purpose for which the'stetute was
enacted." City of Meson v. West Texas Utllltles Co., 150 Tex.
18, 237 S.ti.2d273, (1951).
The purpose clause of Article 1436b as passed by the
legislature,June 21, 1951, Acts.1951, 52nd Legislature,
p. 829, Chapter 470 Is as follows:.
"An act to fecllltate~and encourage the
distributionof gas ?&the lnhribltatitti
of cltles~,,towns,villages end rural areas
of the State of Texas by providing that
any person, firm or~corporetlonor any
Incorporatedcity or tOwn engaging In the
business of transportingor dlstribut+g
gas for public consumptionmay lay and
malnt+ln pipes, mains, conductorsand,other
f~cllltles used for conductinggas through,
under, along, across and over all public
highways, public roads, public streets and
alleys,. . .'
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Honorable D. C. Greer, page 3 (Opinion No. C-139)
The purpose clause Indicates and the act itself specifi-
cally provides that it is intended to apply to gas transporting
companies as well as gas distributing companies who furnish gas
for public consumption. The fact that they do not service the
adjacent area Is, In our opinion, immaterial as this does not
prevent the gas from being ultimately used for public consumption.
The Statute does provide that the Highway Commission may,
If it so desires, designate the place on the highway right
of way where the pipeline may be placed and that it can require
the party to relocate the pipeline so as to permit the widening
or changing of traffic lanes. This Is the only authority granted
to the Highway Commission under the Act.
It follows that this office 1s of the opinion that a party
In the business of transportation or distributing gas Intended
for public consumption 1s authorized under Article 1436b V.C.S.
to lay and maintain pipelines along state highway rightof ways
after notifying the Highway Commission:
SUMMARY
The Highway Commission has no authority to refuse permits
to place gas pipelines along highway right of ways, but the
Commission may designate the place upon the right of way where
the same shall be laid end may require the relocation of the
pipeline so as to permit the widening or changing of traffic
lanes.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
BY:
Assistant Attorney General
APPROVED:
Opinion Committee
W. V. Geppert, Chairman
F. William Colburn
Grady Chandler
Gordan Zuber
William Hemphill
"APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone'
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