Untitled Texas Attorney General Opinion

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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