Could a Texas county lease crossings under county roads to a common-carrier pipeline company and collect annual payments?

Texas AG Opinion JM-432: County Pipeline Crossings

Plain-English summary

Gillespie County required pipeline companies to obtain permits before running pipelines under county roads and proposed leasing those crossings in exchange for annual payments. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

Chapter 111 gave common-carrier pipelines the right to lay lines along, across, or under public roads. It allowed a commissioners court to approve and direct specified placements and required compensation for road damage. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

JM-432 concluded that the county could require a permit reasonably related to its statutory regulatory authority, but it could not lease the crossings to a common-carrier pipeline company. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the commissioners court require a crossing permit?

Yes, if the permit was reasonably related to carrying out the limited approval and direction authority expressly granted by section 111.020(b)(4). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

Could the county charge annual rent for the road crossing?

No. JM-432 found no statutory authority allowing the county to lease the right-of-way crossing to a common-carrier pipeline. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

Could the county recover for damage to the road?

Yes. Section 111.020(c) required the common carrier to compensate the county or road district for damage done to the public road or highway. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

Background and statutory framework

The legislature classified the pipeline companies at issue as common carriers and granted them road-crossing rights subject to regulation under chapter 111. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

JM-432 treated the exchange of construction rights for state regulation as the governing arrangement and found no additional county power to lease or convey the crossing. It also concluded that the general county-real-estate leasing procedure in article 1577 did not apply to these common-carrier pipelines. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

Citations and references

• Natural Resources Code chapter 111
• Natural Resources Code sections 111.002 and 111.020
• article 1577, V.T.C.S.
• Texas Constitution article V, section 18
• Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0432
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0432.pdf

Original opinion text

Best-effort transcription from a scanned PDF via OCR. Minor errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

February 21, 1986

Honorable E. Bruce Curry
District Attorney
521 Earl Garrett Street
Kerrville, Texas 78028

Opinion No. JM-432

Re: Whether a county may lease the right to cross county right-of-way to a pipeline company

Dear Mr. Curry:

You inform us that the Gillespie County Commissioners Court has established a policy whereby a pipeline company is required to obtain a permit from the court before running pipelines under public roads or highways located within the county. Your letter also indicates that the county's policy includes provisions whereby the county may lease such right-of-way crossings to a pipeline company in order to receive annual payments. In that regard, you ask whether a county has the authority to lease such right-of-way crossings to a common carrier subject to chapter 111 of the Natural Resources Code.

The legislature, having declared pipeline companies to be common carriers, has granted them the right to lay pipelines "along, across, or under" public roads or highways. See Nat. Res. Code §§ 111.020(a), 111.002. A county commissioners court has been granted the limited authority to approve and establish guidelines to regulate these pipelines. See Nat. Res. Code § 111.020(b)(4). Section 111.020(b)(4) provides that:

(b) The right to run a pipeline or telegraph or telephone line along, across, or over a public road or highway may be exercised only on condition that:

. . . .

(4) no pipes or pipelines are laid parallel with and on a public highway closer than 15 feet from the improved section of the highway except with the approval and under the direction of the commissioners court of the county in which the public highway is located. (Emphasis added).

Thus, the Gillespie County Commissioners Court may require the pipeline company to 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, § 18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). 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 § 111.020(c). We believe that these provisions do not grant the county commissioners court the additional authority to lease right-of-way crossings to a common carrier pipeline company.

Moreover, common carriers are regulated exclusively by the Texas Railroad Commission under chapter 111 of the Natural Resources Code. See Nat. Res. Code § 111.001 et seq. Section 111.020(d) expressly provides that a common carrier, in order to acquire the right of constructing pipelines along, across, or under public roads and highways must consent to be regulated by chapter 111. Such consent is "in consideration of the rights acquired." This language directly implies that the exchange of rights to construct for the power of the state to regulate is both mutual and exclusive, and no other power is conferred on the county to lease or convey the realty in question. Nat. Res. Code § 111.020(d). Thus, article 1577, V.T.C.S., which establishes a procedure whereby a county commissioners court may lease county-owned real estate, does not apply to common carrier pipelines. See V.T.C.S. art. 1577 (establishes procedures for public auction).

SUMMARY

Section 111.020(b)(4) does not authorize a county commissioners court to lease right-of-way crossings to pipeline companies, which are common carriers subject to chapter 111 of the Texas Natural Resources Code.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General