Untitled Texas Attorney General Opinion ( 1962 )

Mr. J W. Edgar Opinion No. W-1417
Commissioner of Education
Texas Education Agency Re: Whether the term "telegraph
Austin, Texas lines" as used In Texas
Statutes (Artkle 1416, et
seq.) may be construed to
include televlslon lines,
which transmit messages by
wires acted on by electricity,
and related questions.
Dear Mr. Edgar:
Prom your letter requesting the opinion of this office
on the above-captioned matter, and from a file which you sub-
mitted in connection with your request, we have been appraised
of the following facts,
An Independent school district (Galveaton) under a
lease agreement which expired on June 15, 1962, had installed
and was operating a two-way closed circuit television system
covering its school administration buildin and eight eletnen-
tary schools. Phonoscope, ylc. (Galveston7 , a Texas corpor-
atlon, developed and leased this system to the school district.
The facilities provided constitute's valuable Instructional
aid in the teaching and educational program of the district.
This communication system, audio and video, allows
a two-way sound and picture between remote points. hans-
mission of picture and audio carriers is accomplished via a
coaxial cable. Communication may be on a private basis
between any two points, or on a mass basis between any number
of points.
The necessary coaxial cable for this operation must
extend from the central studio (switchboard) to the various
distribution points; the cable being affixed to poles existing
or added, or laid underground. From an operational standpoint
it Is feasible to use cable and pole facilities of a telephone
company, where such company is willing to contract for such
, -
Mr. J. W. Edgar, page 2 (WW-1417)
use. Because contract terms with Southwestern Bell Telephone
Company could not be reached, Phonoacope's only alternative
has been to seek franchises from various cities as a public
service or utility corporation to allow it to obtain necessary
right-of-way, erection and maintenance of poles and cablea.
The school district desired to avail Itself of this
valuable educational program aid in the future. Therefore,
Its plan ia to request and urge the City Council to grant
Phonoscope, Inc., a franchise under the terms of Article 1416,
et seq., providing that this system is held to be within the
coverage of these articles.
Your first question reads as follows:
"1. May the term 'telegraph lines' used in
Texas Statutes (Article 1416, et seq.) be
construed to Include television liner, which
transmit meeaages by wire8 acted on by elec-
tricity?"
Relating
. _ the above statement of facts to your first question,
it become8 apparent that the effect of this opinion will be
limited to closed circuit audio-video communications systems
used solely for public education.
The atatutes involved are Articles 1416 through
1432 Inclusive, Vernon's Civil Statuter. Some background
Information concerning the judicial Interpretation of Articles
1416 and 1417 is necessary in order to explain our answer
more clearly.
Articles 1416 and 1417 were originally enacted in
1874, and were carried forward In successive codiflcatlons,
remaining substantially unchanged today. These articles
read as follows:
"Article 1416. 1231, 698, 622 Public waya: Use
Corporations created for the purpose of
constructing and maintaining magnetic tele-
graph lines, are authorized to set their
poles;piers, abutments, wirea and other
fixtures along, upon and across any of the
public roads, streets and waters of this
State, In such manner aa not to incommode
, -
-
Mr. J. W. Edgar, page 3 (WW-1417)
the public in the use of such roads, streets,
and waters. ACtS 1874, p. 132; G.L. Vol. 8,
p. 134."
"Article 1417. 1332, 699, 623 Right of Way
They may ah0 enter upon any lands owned
by private persona or by a corporation, in
fee or less eatate, for the purpose of making
preliminary surveys and examinations with
a view to the erection of any telegraph
line, and from time to time appropriate so
much of said lands as may be necessary to
erect such poles, piers, abutments, wires,
and other necessary fixturee for a magnetic
telegraph, and to make such changes of locc-
tlon of any part of said lines as may from
tima to time be deemed necessary, and shall
have a right of access to construct said
line, and when erected, from time to time
an may be required, to repair the same, and
shall have the right of eminent domain to
obtain the right of way and condemn lands
for the use of the corporation. Id."
Telephone companies were not Included within the coverage of
the statute for the simple reason that in 1874, telephones
had been recently invented, and were not generally known; and
it cannot be supposed that the leglalature had telephonea in
mind whenit used the word "telegraph."
In 1900, the Supreme Court of Texas, In San Antonio
& A.P.Ry. Co. v. Southwestern Telegraph and'!PelephoneCo.,
. . 117 h ad squarely before It the question of whether
5f,SW
or not the iwo articles above quoted alao covered telephone
companies. In declaring that the articles did apply to like
proceedings by telephone companies, the court based its
reasoning on its interpretation of subsequent legislation
providing that a corporation could Incorporate for the purposes
of constructing and operating "a telegraph and telephone line."
In construing this legislation, the Court stated:
?Fhe structure of this sentence Indicates
that the legislature understood that Itelegraph'
and 'telephone' were closely related in meaning,
and in fact so consistent with each other that
, -
- .
Mr. J. W. Edgar, page 4 (WW-1417)
the two words were used to express different
modeb'of accompllshihg'the bnb purpose',--
the transmission of messagea by means of
electricity.' (Emphasis added
In 1898, two years prior to the above cited case,
a Texas Court of Civil Appeals had before it, in Gulf, C.
& S.F.Ry. Co. v. Southwestern Telegraph & Telephone Co.,
&5 S.W. 151 (no writ history), the same iseua of whether
or not telephone companies were covered by what are now
Articles 1416 and 1417. The Texas Court, citing foreign
cases and authorities, and adopting the rules set out therein,
stated:
"We are of the opinion that the decisions
cited are founded upon common sense and reason,
and that the term 'telegraph linea', used in
the statute, Includes 'telephone lines,' each
one being constructed for'thensame purpose,
namely the'transmission
, of'messagts
by wires
acted &by electricity." (Emphasis added)
Looking behind the results of .theaetwo early Texas
cases and the many later cases adopting the rule set out there-
in,,it is clear that paramount in tha reasoning of the court
was the enormous technological advancement In the field of
cormnunicatlonscaused by the advent of the telephone. It
should be pointed out that at the time of these first two
Texas decisions, the technological development of the~tele-
phone was at a much lower stage than ie the present day
development of television. And yet, the Texas courts, as
well as other state courts with similar questions confronting
them, recognized the vaat potential baneflt to the general
public that the telephone system offered.
Recognizing the benefits that our educational
system derives from closed circuit television in the public
schools, and adopting the reasoning of the Texas courts
faced with the "telephone Issue," we anawer your first
question in the affirmative. The basis bf this answer is
an examination of the technology of the closed circuit system
in question. The