Texas Attorney General Opinion: WW-1017 Page: 2 of 2
This text is part of the collection entitled: Texas Attorney General Opinions and was provided to The Portal to Texas History by the UNT Libraries Government Documents Department.
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Honorable G. F. Steger, Page 2 (WW-1017)
". . as a general rule, property appro-
priated to the public purpose cannot be taken
for another public use without express or im-
plied legislative authority when such taking
results in practical destruction of the prior
use unless the subsequent taking is for a
public purpose of greater or paramount import-
ance which cannot be accomplished in any other
practical way." (Emphasis added)
This rule was originally stated in Sabine & E. T. Ry.
Co. v. Gulf & I. Ry. Co. of Texas, 92 Tex. 162, 45 S.W3. 784
(1i89).
There is no applicable statute conferring the specific
authority needed by the county to condemn the desired portion
of railroad right of way. In the absence of such authority,
to sustain a subsequent taking under a general power, there
must be a showing of paramount importance or purpose and that
the power can be exercised in no other practical way. We
accordingly answer your question in the negative.
SUMMARY
In absence of legislative authority, property
appropriated to a public purpose cannot be
taken for another public use when such taking
will destroy or materially impair the prior use
unless the subsequent taking is for a paramount
public importance which cannot be accomplished
in any other practical way.
Yours very truly,
WILL WILSON
Attorney General of Texas
ByA tN4kytQ
William H. Po , Jr
WHPJr:mm Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Edward A. Cazares
John C. Phillips
John Leonarz
Dudley McCalla
REVEIWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt
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Texas. Attorney-General's Office. Texas Attorney General Opinion: WW-1017, text, March 14, 1961; (https://texashistory.unt.edu/ark:/67531/metapth267629/m1/2/?q=%22%22~1: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.