Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 6/21/1989
Status: Precedential
Modified Date: 7/6/2016
Mr. Charles Brack Chambers County Attorney Mills, Shirley, Eckel Bassett P.O. Box 1943 Galveston, Texas 77553
Re: Applicability to governmental bodies of V.T.C.S. article 1436c, relating to the safety of individuals who work in proximity to high voltage electrical lines (RQ-1718)
Dear Mr. Brack:
Article 1436c, V.T.C.S., provides that "no person, firm, corporation, or association" shall, without having taken specified safety precautions, perform activities, erect structures, or handle or store various items within a stated proximity to high voltage overhead lines, or operate certain equipment. Section 7 of the article provides:
(a) Every person, firm, corporation, or association and every agent or employee of such person, firm, corporation, or association who violates any of the provisions of this Act shall be fined not less than $100, nor more than $1,000 or confined in jail for not more than one year or both.
(b) If a violation of this Act results in physical or electrical contact with any high voltage overhead line, the person, firm, corporation, or association violating the provisions of this Act shall be liable to the owner or operator of such high voltage line for all damage to such facilities and for all liability incurred by such owner or operator as a result of any such contact.
We understand you to ask whether article 1436c is applicable to counties so as to operate as a waiver of the county's governmental immunity for purposes of county liability under section 7. We conclude that a county is not a "person, firm, corporation, or association" within the meaning of article 1436c and thus that a county is not subject to liability under the provisions of that article.
The Texas Supreme Court in State v. Central Power Light Co.,
A provision of the Code Construction Act, Government Code section
Notably, a county's status as a political entity has been characterized by the courts as being, in contrast to that of a municipal corporation, that of a "quasi-corporation." See, e.g., City of Sherman v. Shobe,
Nor do we think that the provisions of section 2 of article 1436c indicate that the legislature intended the article to apply to counties. Section 2 provides that the statute does not apply to the "construction, reconstruction, operation, or maintenance" of certain electrical or communication circuits, and associated systems, by an "authorized person." Section 1(3)(B) defines "authorized person" to include "employees of . . . state and county or municipal agencies having authorized circuit construction on the poles or the structures of" a power company, cooperative, city, or transportation or communication system. We do not think that this exemption of certain county employees implies that counties, even though not specifically exempted, are liable under the statute. On its face the article indicates that directives as to safety measures and provisions for liability apply only to a "person, firm, corporation, or association." We discern no legislative intent that the language "person, firm, corporation, or association" includes counties. We do not think that a county is a "person, firm, corporation, or association" within the meaning of the article 1436c.
Please note, however, that we do not intend to say that counties may not, on the appropriate facts, be held liable for damages arising from county activities in connection with high voltage electric lines. The Texas Tort Claims Act specifically defines "governmental units" to include counties. Civ.Prac. Rem. Code s 101.001(2)(B). Section 101.021 provides that a governmental unit is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
Whether any particular county activities giving rise to damages fall within the scope of the provisions of the Tort Claims Act would ultimately, of course, involve questions of fact which we in the opinion process cannot resolve.
Very truly yours,
Jim Mattox Attorney General of Texas
Mary Keller First Assistant Attorney General
Lou McCreary Executive Assistant Attorney General
Judge Zollie Steakley Special Assistant Attorney General
Rick Gilpin Chairman, Opinion Committee
William Walker Assistant Attorney General
City of Houston v. Renault, Inc. , 431 S.W.2d 322 ( 1968 )
Gates v. City of Dallas , 704 S.W.2d 737 ( 1986 )
City of Corpus Christi v. Atlantic Mills Servicing Corp. of ... , 368 S.W.2d 640 ( 1963 )
City of Sherman v. Shobe , 94 Tex. 126 ( 1900 )
Heigel v. Wichita County , 84 Tex. 392 ( 1892 )
State of Texas v. Central Power Light Co. , 139 Tex. 51 ( 1942 )