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600 Travis, Suite 4200
Houston, Texas 77002
713.220.4200 Phone
713.220.4285 Fax
andrewskurth.com |
EXHIBIT 5.1
Ladies and Gentlemen:
We have acted as special counsel to Duncan Energy Partners L.P., a Delaware limited
partnership (the “Partnership”), in connection with the registration of (i) the sale of up
to 500,000 common units (the “UPP Units”) representing limited partner interests in the
Partnership (the “Common Units”) which may be issued pursuant to the DEP Unit Purchase Plan
(the “UPP”), and (ii) the sale of up to 500,000 Common Units (the “LTIP Units” and,
together with the UPP Units, the “Units”) which may be issued pursuant to the 2010 Duncan
Energy Partners L.P. Long-term Incentive Plan (the “LTIP” and, together with the UPP, the
“Plans”), pursuant to the Partnership’s registration statement on Form S-8 filed on the
date hereof by the Partnership (the “Registration Statement”) with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“Securities Act”).
As the basis for the opinion hereinafter expressed, we have examined and relied on originals
or copies, certified or otherwise identified to our satisfaction, of the following: (i) the
Certificate of Limited Partnership of the Partnership; (ii) the Amended and Restated Agreement of
Limited Partnership of the Partnership, dated
February 5, 2007, as amended (the “
Partnership
Agreement”); (iii) the Certificate of Formation of DEP Holdings, LLC, the general partner of
the Partnership (the “
General Partner”); (iv) the Second Amended and Restated Limited
Liability Company Agreement of DEP Holdings, LLC, dated
May 3, 2007, as amended (the “
LLC
Agreement”); (v) the Plans; (vi) the Registration Statement; and (vii) such other instruments
and other certificates of public officials, officers and representatives of the Partnership and
such other persons as we have deemed appropriate as a basis for the opinions set forth herein.
In rendering the opinions expressed below, we have assumed and have not verified (i) the
genuineness of the signatures on all documents that we have examined, (ii) the legal capacity of
all natural persons, (iii) the authenticity of all documents supplied to us as originals and (iv)
the conformity to the authentic originals of all documents supplied to us as certified, photostatic
or faxed copies. In conducting our examination of documents, we have assumed the power, corporate
or other, of all parties thereto other than the Partnership to enter into and perform all
obligations thereunder and have also assumed the due authorization by all requisite action,
corporate or other, and the due execution and delivery by such parties of such documents and that,
except as set forth in the numbered opining paragraphs below, to the extent such documents purport
to constitute agreements, such documents constitute valid and binding obligations of such parties.
We have also assumed that (A) the Certificate of Limited Partnership of the Partnership and
the Partnership Agreement and the Certificate of Formation of the General Partner and the LLC
Agreement, in each case as amended to date, will not have been amended in any manner that would
affect any legal conclusion set forth herein, and (B) all Common Units will be issued and sold in
the manner described in the Prospectus and in accordance with the terms of the Plan.
Based upon the foregoing, and subject to the limitations and assumptions set forth herein, and
having due regard for such legal considerations as we deem relevant, we are of the opinion that:
1. The issuance of the Units by the Partnership has been duly authorized by the General
Partner.
2. Upon the issuance and delivery of the Units from time to time in accordance with the terms
of the applicable Plan for the consideration established by such Plan and, if applicable, pursuant
to the terms and conditions of a particular award under such Plan and the satisfaction of any
performance conditions associated therewith and any requisite determinations by or pursuant to the
authority of the Board of Directors of the General Partner or a duly constituted and acting
committee thereof as provided in such Plan, and in the case of options, following the exercise
thereof and payment for Units as provided therein, such Units will be validly issued, fully paid
(to the extent required under the Partnership Agreement) and non-assessable, except as such
non-assessability may be affected by (i) the matters described in the Partnership’s Annual Report
on Form 10-K for the year ended
December 31, 2008 under the captions
“Risk Factors—Risks Inherent
in an Investment in Us” “—Unitholders may have limited liability if a court finds that unitholder
action constitutes control of our business” and
“—Unitholders may have liability to repay
distributions” and (ii) Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited
Partnership Act.
We express no opinion other than as to the Delaware Revised Uniform Limited Partnership Act
(which is deemed to include the applicable provisions of the Delaware Constitution and reported
judicial opinions interpreting those laws) and the federal laws of the United States of America,
and we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic
or foreign.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
In giving this consent we do not admit that we are “experts” under the Securities Act, or the rules
and regulations of the SEC thereunder, with respect to any part of the Registration Statement,
including this exhibit. This opinion is expressed as of the date hereof, and we disclaim any
undertaking to advise you of any subsequent changes of the facts stated or assumed herein or any
subsequent changes in applicable law, and we have assumed that at no future time would any such
subsequent change of fact or law affect adversely our ability to render at such time an opinion (a)
containing the same legal conclusions set forth herein and (b) subject only to such (or fewer)
assumptions, limitations and qualifications as are contained herein.
