Untitled Texas Attorney General Opinion ( 1943 )

Honorable Wm. Yelderman
Assistant County Attorney
Travis County
Aus tin, Texas
Dear Sir: Opinion No. O-5726
Re: Is the franchise or easement
granted by the Commissioners
Court ofTravis County to the
Texas Power and Light Company
subject to State and County
ad valorem, road and school
taxes8 And related,;questions.
You request the opinion of this department upon four questions
propounded in your letter of Nov. 30, 1943, rhioh for oon-
venienoe we quote a8 follows:
"In 1926 the Commissioners Court of Travis County, Texas,
granted to Texas Power and Light Company a osrtain
frenohise wbioh is hereinafter fully explained. I am
requested to ,obtainan opinion from you in referenoe to
the questions hereinafter stated.
"I am enclosing a oopy of the franchise mentioned, and am
requested by the Tax Collector-Asaessor of Travis County
to ask and the following questionsr
"(11 Is or is not this franohise subject to'Stat and
County Advalorem, road and sohool tax, or other taxes
levied,aooording to'lax?
“(2) Then, if this not be,oalled a franohise, and is
oalled an easement, then would that easement be subjeot
to taxes, as other property in Travis County, or in any
other oounty in Texas, where the same situation existed?
s(3) Did the Commissioners Court of that date have a
right to grant these oonoessions without pay or con-
sideration of any kind?
"(4) In 1923 the main State highways were taken over by
the Texas Highway Department. Do they have a right to
grant franohises or easements rlthout pay, or for any
oonsiderationt"
.-
Honorable Wm. Yelderman, page 2, O-5726
We shall proceed to answer your third question first, namely,
"Did the Commissioners Court of that date have a right to
grant these concessions without pay or consideration of any
kind?"; this for the reason our answer to this question will
aid in clarifying our answer to the remaining questions one
and two.
The Texas Power and Light Company is manifestly suoh a corpor-
ation as is referred to in Article 1436, Q.B.C.S., reading as
followst
"Such corporation shall have the right and power to enter
upon, condemn and appropriate the lands, right of way,
easements and property of any person or corporation, and
shall have the right to erect its lines over and across
any public road, railroad, railroad right of way,
interurban railroad, street railroad, canal or stream in
this State, any street or alley of any incorporated city
or town in this State with the consent and under the
direction of the governing body of such city or town.
Suoh lines shall be constructed upon suitable poles in
the most appaoved manner and maintained at a height above
the ground of at least twenty-two feet; or pipes may be
placed under the ground, as the exigencies of the case
may require."
We may assume that the Commissioners Court of Travis County in
granting what is termed:
" the right, lioense, privilege and franchise is
hirib; granted to TEXAS POWER & LIGHT COMPANY, its
successors and assigns, for a term of fifty (50) years
from the 23rd day of September, 1926, to construct, main-
tain and operate suitable poles or towers along, over and
across the public roads and highways, of said county for
the purpose of supporting its transmission lines for
electricity for light, heat, power, and other purposes;"
was laboring under the erroneous impression that Article
1436, supra, conferred some right or authority upon it
in the premises. Suoh is not the case. This article
merely oonfers a "privilege" or a sfranchiset',if we ohoose
to call it that, to the oorporations referred to therein
by direct legislative action. The Galveston Court of Civil
Appeals, in the case of Houston Light & Power CO. V-
Fleming, 126 S.W. (2d) 407, reversed on other grounds,
in construing this article, said:
. it was just a privilege or ennchise granted
d;r;ct by~the State, through the Legislature by
means of that general enactment, to any such
corporation as satisfactorily met it terms and
furnished the Utilities for the public benefit its
terms dealt with; . . ."
Honorable R?n.Yelderman, page 3, O-5726
We do not deem it necessary to discuss at length the
limitations upon the power and jurisdiction of the commissioners
court. This has been ably done in opinions O-1805 and O-2442,
heretofore rendered by this department, dopies of which are
herewith enclosed for your information.
It will be observed that certain portions of these opinions are
directly applicable here, and we reaffirm the conclusion there-
in expressed. To express our views ooncretelg, the Commission-
ers Court of Travis County was without authority to add to or
subtract from,the rights conferred by Article 1436, supra.
The action of the Commissioners Court of Travis County in the
matter of granting the privilege or franchise embodied in the
order submitted by you is null and void, of no force and effect;
it conferred no right or privilege, and hence bestowed no
benefit upon the corporation that did not preexist by virtue of
the statute itself, regardless of whether a consideration was
paid or not. Your third question is, therefore, snswered in
the negative.
We deem it proper to say that this opinion is not to be con-
strued as holding that the Texas Light and Power Company is
not subject to the provisions of Article 7162, Subsections
42 and 43 thereof, which requires taxpayers to list: (42)
every franchise, the description and value thereof; (43)
value of all other property not enumerated above, (referring to
the preceding quoted subsections) nor to Article 7084, Sub-
division (d) therof, imposing a franchise tax upon all public
utility corporations. We merely hold that by whatever name
the instrument submitted by you is called, whether a "franchise"
or "easement", it does not constitute theb asis for the
assessment and collection of taxes of any character upon the
part of the State and County, or any other taxing subdivision
thereof.
The generality of your question number four makes it inad-
visable for us to attempt an answer without more definite
information. If you will give us the kind and character of
franchise or easement you have in mind and to whom it is or
has been granted, if such is the case, we shall be glad to
give further oonsideration to it.
Yours very truly
ATTORNN GENERAL OF TEXAS
s/ L. P. Lollar
APPROVED DEC. 9, 1943 BY
s/ Gerald C. Bann L. P. Lollar
ATTORBEY GEWRAL OF TEXAS Assistsnt
LPL:AMM/cg
EgCLOSURES
Approved Opinion Committee, By BWB, Chairman