Untitled Texas Attorney General Opinion ( 1986 )


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    The Attorney         General of Texas
    wr    6. 1986
    JIM MAlTOX
    Attorney General
    Supreme Court Building         Honorable James M. Kuboviak              Opinion No. .X+489
    P. 0. Box 12546
    Austin. TX. 76711. 2546
    Brazes County Attorney
    512/475-2501                   Courthouse                               Re: Liability of a counry for
    Telex 9101674-1367             Bryan, Texas   77853                     burled cable damaged during
    Telecopier   51214750288                                                widening of a road
    714 Jackson. Suite 700
    Dear Mr. Kuboviak:
    Dallas. TX. 752024506
    2141742.6944                       You ask the fo'llowingquestion:
    What is the liability of a county with respect to
    4624 Alberta Ave.:Suite  160
    El Paso, TX. 7!3905-2793
    buried mble   in a county right-of-way that is
    9151533.3464                             damaged t'y the county during the widening of a
    public ro.ad?
    21      Texas. Suite 7W             The question was raised by the fact that a county comissioaers
    ,s,on, TX. 77002-3111
    court, in 1979, acoptod at a meeting of the court what purports to be
    J12235666
    an agreement with a telephone company that, among other things, stat?s
    that cha county "will ir, no way be responsible for ar.y damage chat
    606Broadway,Suite
    312              might occur to any existing lines in the right-cf-way." A ccunty wcrk
    Lubbock. TX. 79401-3479        crew has damaged the telephone company's buried cables during road
    8081747.5236
    widening construction. The county suggests that the "agreement" that
    it adopted in 1979 is binding on the telaphone company.
    4309 N. Tenth, Suite 6
    McAllen. TX. 76501-1665                 The liabilisf of a county for damage caused by the countp Cc
    5 12/662-4547                  cable buried in its right-of-way involves factual detemimtions which
    this office is not authorized to decide. See Attorusy General @pInion
    200 Main Plaza, Suite 400     JM-408 (1985). Also, we cannot decide the'faccual issues necessary fo
    San Antonio. TX. 762052797    determine the existence of a contractual agreement, such as consi-
    51212254191                   deration     and communlcarion of an acceptance. We conclude, however,
    that a county, by resolution or otherwise, may not unilatarallv change
    the general law of liability applicable to the county for the damage
    An Equal Opportunity/
    Aftirmative Action Employer
    in question.
    Tort liability is determined by the legisiatura and the courts ;n
    the statutory and case law of the state. In addition to the well-
    established recovery of damages based on the theory of negligence, the
    Texas courts have allowed recovery on the basis of the liability under
    article I. sectiott17 of the Texas Constitution for taking, damaging,
    or destroying private property for public use. See State V. Hale, 146
    S.W.Zd 731, 737 (Tex. 1941). The Texas courTalso         have allowed
    P. 2234
    Eonorable James H. Kubwiak   - Page 2   (JM-489)                          .
    racovery for the severance of telephone cables lawfully buritd on
    uublic right-of-way on thi! theor, of the law of trespass.    See
    Mountain states T&phone    md T.&graph Co. V. Vowel1 C&structs
    co., 
    341 S.W.2d 148
    , 150 CT&. 1960).
    Historically. a county avoided liability under the doctrir,c of
    sovereign immunity. -See --Lime v. Texas Tech University, 
    540 S.W.2d 297
    , 298 (Tex. 1976). Thai Texas Tort Claims Act now waives that
    immunity of a county for property damage caused by negligence which
    arises from the county's 'use of motor vehicles or motor-driven
    equipment. See Civil Practice & Remedies Code, 1101.021, §lOl.n25.
    In most factsituations, danage to buried cable in a county right-of-
    way during the widening oji a public road will involve the use of
    motor-driven vehicles or equipment. As indicated, we do not address
    whether the county has cntized into, or could legally enter ioto, a
    contract in which rhe telephone company released a cause of action
    under the Tort Claims Act.
    Article 1416, V.T.C.S., which applies to trlephoze as well as
    telegraph lines, expressly grants the ielephone company the right to
    lay its lines along, upon, and across any public roads, streets, or
    waters of Texas, subject -d-
    only to the restriction that ic must ba done
    in a manner that does not inconvenience the public in the use of such
    roads, streets, and waters. This right is granted by the ~legislature
    and callhot be denied by a county. See Reldt ye.~Southwrstrrn Beil
    Telephone Company, 
    482 S.W.2d 352
    , 355,357 5 (Tex. Civ. App. - Corpus
    Christ1 1972, no writ); Attorney General Opinions M-1218 (<972); N-~OE~
    (1969); O-2517 (1.940).
    It is well-established that a county commissioners court
    possesses only the powers cclnferredeither expressly or by zrcessary
    implication by the constitution and statutes of this state. See Tex.
    Const. art. V, 518; Canales V. Laughlin, 
    214 S.W.2d 451
    . 4r(Tex.
    1948). A county may contract only in the manner and for the nurooses
    provided by atatut;. _--
    Galveston, H. & S.A. Railway Co. vi U;aldr
    ;~;y;.,'``.S..\~l.2d
    305, 30;' (Tex. Civ. App. - San Antonio 1942, writ
    We are not aware of aay statute that gives h county the power to
    condition or limit the right of a telephone company to lay its cables
    within the right-of-way of a county, so long as the telephone company
    does not inconvenience the .public in the uaa of the roads, or that
    authorizes a county to suspend unilateraliy the waiver of immuniry to
    tort liability provided by the Texas Tort Claims Act. -See Attcrney
    General Opinions JM-432 (19:36);H-1015 (1977).
    p. 2235
    Honorable James M. Kuboviak - Page 3     (JM-489)
    SUMMARY
    A county does not have the power to change the
    genaral law of tort liability or immunity to tort
    liability and my      not   impose conditions   or
    limitations 00. the statutory right of a telephone
    company to lay its cables within the right-of-way
    of the county, tie long as the company does not
    disturb the public in the use of the road.
    TM        MATTCZ
    Attorney General of Texas
    JACK HIGHTOWER
    First Assistant Attorney General
    NARY KELLER
    Executive Assistact Attorney General
    ROBERT GRAY
    Special Assistant Attorney General
    PICK CILPIN
    Chairman. Opinion Committee
    Prepared by Nancy Sutton
    Assistant Attorney General
    p. 2236
    

Document Info

Docket Number: JM-489

Judges: Jim Mattox

Filed Date: 7/2/1986

Precedential Status: Precedential

Modified Date: 2/18/2017