DocketNumber： JM-432
Judges： Jim Mattox
Filed Date： 7/2/1986
Status： Precedential
Modified Date： 2/18/2017
The Attorney’ General of Texas F&ruary 21, 1986 JIM MAllOX AttorneyGeneral Supreme Court Building Honorable E. Bruce Curry Opinion No. .JM-432 P. 0. BOX 12546 District Attorney Austin, TX. 76711-2546 521 Earl Garrett Street Rc: Whether a county may leaec 51214752501 Kerrville, Texas 78028 the right to cross county right- Telex 9101674-1367 Telecopier 512/4750266 of-way to a pipeline company Dear Mr. Curry: 714 Jackson, Suite 700 Dallas, TX. 75202.4506 You inform us that the Gillespie County Commissioners Court has 2141742.6944 established a poHcy whereby a pipeline company is required to obtain a permit from the court before running pipelines under public roads or 4624 Alberta Ave., Suite 160 highways located within the county. Your letter also indicates that El Paso, TX. 79905.2793 the county's policy includes provisions whereby the county nay lease 915/533-3464 such right-of-way crossings to a pipeline company in order to receive annual payments. :Cn that regard, you ask whether a county has the 1001 Texas. Suite 7W authority to lease such right-of-way crossings to a comon carrier Houston, TX. 77002-3111 subject to chapter 111 of the Natural Resources Code. 71312255666 The legislature, having declared pipeline companies to be common carriers, has grmted them the right to lay pipelines "along, across, 605 Broadway, Suite 312 Lubbock, TX. 79401-3479 or under" public mads or highways. See Nat. Res. Code §§lll.O20(a), 6061747-5238 111.002. A count:7 commissioners courthas been granted the limited authority to app'cove and establish guidelines to regulate these pipelines. See Nr.t. Res. Code 5111.020(b)(4). Section 111.020(b)(4) 4309 N. Tenth. Suite S provides that: McAtlen. TX. 76501-1665 512/882-4547 (b) l?he right to run a pipeline or telegraph or telephone line along, across, or over a public 200 Main Plaza, Suite 400 road or highwaJlmay be exercised only on condition San Antonio. TX. 76205-2797 that: - 512/2254191 (4) no pipes or pipelines are laid parallel An Equal OppOrtUnityI wit'h and on a public highway closer than 15 Affirmative Action Employer feet from the improved section of the high- wag except with the approval and under the dimction of the commissioners court of the Giaty in which rhe public highway is E&ed ---* (Emphasis added). Thus, the Gillesp:Le County Commissioners Court may require the pipeline company t:o obtain a permit which is reasonably related to carrying out the authority explicitly granted in section 111.020(b)(4). -- See Tex. Const. art. V, 918; Cauales v. Laughlin, 214 p. 1980 Ronorable E. Bruce Curry - l?age2 (JM-432) S.W.2d 451, 453 (Tex. 1941;). Section 111.020(c) requires the common carrier to compensate the "county or road district" for any damage done to the public road or highway. See Nat. Res. Code §lll.O?O(c). We believe that these provisions do notgrant the county cormnissioners court the additional authority to lease right-of-way crossings to a common carrier pipeline company. E!oreover,common carrlcra are regulated exclusively by the Texas Railroad Commission under chapter 111 of the Natural Resource Code. See Nat. Res. Code, 4111.COl et seq. Section 111.020(d) expressly zides that a common carrier, in order to acquire the right of constructing pipelines along, across, or under public roads and highways must consent to bo regulated by chapter 111. Such consent is "in consideration of the rights acquired." This language directly implies that the exchange o,frights to construct for the power of the state to regulate is both rutual and exclusive, and no other power is conferred on the county to lease or convey the realty in question. Nat. Res. Code §111.02O(~j3. Thus, article 1577, V.T.C.S., which establishes a procedure whereby a county commissioners court may lease county owned real estate, dl>esnot apply to common carrier pipelines. See - V.T.C.S. art. 1577 (establishes procedures for public auction). SUMMARY Section lll.C2O(b)(4) does not authorize a county commissioners court to lease right-of-way crossings to pipc:linecompanies. which are common carriers subject, to chapter 111 of the Texas Natural Resource (lode. JIM MATTOX Attorney General of Texas JACK HIGHTOWER First Assistant Attorney General MARY KELLER Executive Assistant Attormy General ROBERT GRAY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee: Prepared by Tony Guillory Assistant Attorney General p. 1981