Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 26,2010
The Honorable Garnet F. Coleman Opiuion No. GA-0793
Chair, Committee on County Affairs
Texas House of Representatives Re: Whether a school district may access and use
Post Office Box 2910 a county's right-of-way to install fiber optic cable
Austin, Texas 78768-2910 (RQ-0818-GA)
Dear Representative Coleman:
You state that the Weslaco Independent School District (the "WlSD") is providing fiber optic
connectivity to all campuses and admiuistrative offices within the district. I All WlSD campuses and
offices within the City of Weslaco's boundaries are connected, but the campuses located in
Weslaco's extraterritorial jurisdiction (ETJ)2 are not. Request Letter at 1. The city's ETJ is located
in Hidalgo County, and the county has refused WlSD's request for access to the rights-of-way of
county roads to install fiber-optic cable, claiming that it does not have authority to grant the school
district such access. 3 ld. You ask whether a school district has authority to access and use a county's
right-of-way to install fiber-optic cable to serve all schools in the district. ld. The brief submitted
by WISD maintains that the school district is entitled to access the county right-of-way for this
purpose. See WlSD Brief at 3-4 (referring to "WISD's right to access" the county road right-of-
way). It also assumes that it will not pay the county for use of its road rights-of-way. See WlSD
Brief at 2-3 (stating that if the district has access to the right-of-way, its only expenditure would be
the one-time cost of installing the fiber-optic cable). We accordingly consider whether a school
district is entitled to access the county road right-of-way to install fiber-optic cable.
An independent school district possesses only those powers expressly conferred on it by law
or implied as a necessary incident to the powers expressly given. See Mesquite lndep. Sch Dist. v.
Gross, 67 S.W.2d 242,245 (Tex. 1934); Harlingen lndep. Sch Dist. v. C.R Page & Bro., 48 S.W.2d
'Request Letter at 1 (available 01 http://www.texasattorneygeneral.gov).
'See TEx. Lac. GOV'T CODE ANN. § 42.021(a) (Vernon 2008) (describing extraterritorialjnrisdiction).
'The term "right-of-way" is sometimes used to mean a party's right to pass over a tract ofland, and it is also
used to describe the strip ofland on which a road is constructed. See Tex. Elec. Ry. Co. v. Neale, 252 S.W.2d 451,454
(Tex. 1952) (addressing railroad right-of-way). In this request, "right-of-way" means the strip ofland on which a road
is constructed. See generally Request Letter; Brief from W1SD at 3 (Oct. 9, 2009) (on file with the Opinion Committee)
[hereinafter WISD Brief].
The Honorable Gamet F. Coleman - Page 2 (GA-0793)
983,986 (Tex. Comm'nApp. 1932,judgm't adopted). The briefs submitted for this opinion request
have not directed us to any Education Code provision expressly authorizing an independent school
districtto access and use a county's right-of-way to install fiber-optic cable and we have found none.
Nor do we find such authority implied as necessary to expressly granted powers.
We next turn to statutes outside of the Education Code as a possible source of authority. A
review of the statutes granting easements in public roads to certain entities indicates that such
entitlement exists only when expressly authorized by the Legislature. See generally Hill Farm, Inc.
v. Hill County, 436 S.W.2d 320, 323 (Tex. 1969) (stating that "responsible officials may, within the
limits of the power vested in them by the Legislature, authorize the use of the [road] subsurface for
sewers, pipelines and other methods of transmission and communication that serve the public
interest") (emphasis added). For example, Utility Code section 181.082, first enacted in 1874,4
provides that "[a] telephone or telegraph corporation may install a facility of the corporation along,
on, or across a public road, a public street, or public water in a manner that does not inconvenience
the public in the use of the road, street, or water." TEx. UTIL. CODE ANN. § 181.082 (Vernon 2007);
see also id § 181.081(1) (defining "facility"). The Legislature has adopted similar provisions for
other entities. See id §§ 181.005 (Vernon Supp. 2009) (gas corporation has the right to lay and
maintain lines over and across a public road, subject to compliance with statutory conditions);
181.042 (Vernon 2007) ("An electric utility has the right to construct, maintain, and operate lines
over, under, across, on, or along a state highway [and a] county road."); 181.102(a) ("person in the
business of providing community antenna or cable television service to the public" in an
unincorporated area may install and maintain "equipment through, under, along, across, or over a
utility easement, a public road, an alley, or a body of public water"). Under Water Code chapter 49,
"[a]ll districts 5 or water supply corporations are given rights-of-way within, along, under, and across
all public, state, county, city, town, or village roads, highways, and rights-of-way." TEx. WATER
CODE ANN. § 49.220 (Vernon 2008). The leading case addressing the rights granted under such
statutes determined that a political subdivision could not deny a telephone company's right under
a predecessor of section 181.082 to use public roads and streets. See City ofBrownwood v. Brown
Tel. & Tel. Co., 157 S.W. 1163, 1165 (Tex. 1913). See also Harlingen Irrigation Dist. Cameron
County No.1 v. Caprock Commc 'n Corp., 49 S.W.3d 520, 524, 530 (Tex. App.-Corpus Christi
200 I, pet. denied) (citing City of Brownwood for telephone company's right under Utilities Code
section 181.082 to install underground fiber optic cable along a public roadway). There is no similar
provision for school districts.
The absence of an express provision granting school districts the right to use public road
rights-of-way is particularly significant because Texas courts have strictly construed statutes
authorizing corporations to place fixtures in a public road right-of-way. Where a statute authorized
'See An Act Concerning Private Corporations, 14th Leg., R.S., ch. XCVII, § 51, 1874 Tex. Gen. Laws 120, 132
(authorizing telegraph companies to place fIxtures "along, upon and across any of the public roads, streets, and waters
of this State") (earliest predecessor of Utility Code section 181.082).
'For purposes of this Water Code provision, "'[d]istrict' means any district or authority created by authority
of either Sections 52(b)(1) and (2), Article III, or Section 59, Article XVI, Texas Constitution," subject to specifIc
exceptions. TEx. WATER CODE ANN. § 49.001(a)(l) (Vernon 2008).
The Honorable Garnet F. Coleman - Page 3 (GA-0793)
an electric power corporation to place lines "across" public roads, the Texas Supreme Court
determined that the statute did not authorize the corporation to place lines "along" the roads. See
Inc. Town of Hempstead v. GuljStates Utils. Co., 206 S.W.2d 227, 230 (Tex. 1947) (addressing
predecessor of Utilities Code section 181.042). Another judicial decision determined that a mining
company, which was not chartered to construct and maintain telecommunications lines, could not
place its private telephone lines over public highways. See Acme Cement Plaster Co. v. Am. Cement
Plaster Co., 167 S.W. 183, 184-85 (Tex. Civ. App.-Amarillo 1914, no writ). The court stated that
the predecessor of section 181.082 authorized only telephone corporations to place telephone lines
over public highways, and any other entity that did so should be treated as a trespasser. Id. at 184
(quoting Roaring Springs Town-site Co. v. Paducah Tel. Co., 164 S.W. 50, 53 (Tex. Civ.
App.-Amarillo 1914), aff'd, 212 S.W.147 (Tex. 1919)). Thesejudicialdecisionsindicatethatan
entity is not entitled to place its communication equipment in a county road right-of-way absent
express statutory authority. Because school districts lack such express statutory authority, the WlSD
is not entitled to access a county road right-of-way to install fiber-optic cable in the right-of-way.
A school district is, however, not necessarily foreclosed from acquiring an easement in the
county right-of-way for the purpose of installing fiber optic cable. See TEx. Loc. GOV'T CODE ANN.
§ 272.00 1(a), (b)(5) (Vernon 2005).
The Honorable Garnet F. Coleman - Page 4 (GA-0793)
SUMMARY
Because no statute grants school districts the right to access
and use county road rights-of-way to install fiber-optic cable, a school
district is not entitled to use county road rights-of-way for that
purpose.
Very truly yours,
Attorney
DANIEL T. HODGE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Susan 1. Garrison
Assistant Attorney General, Opinion Committee