OBEY GENERAL 

OF TEXAS 

Honorable 0. Kennedy 

County Attorney 

Bee County ~' 

Beevllle, Texas 

Dear Sir: Opinion No. 0-2318 

Re: Under the stated facts Is the married 

woman a citizen and entitled to vote? 

And another question. 

Your recent request for an opinion of this department, 

on the questions as are herein stated, has been received. 

We quote from your letter as follows: 

"Approximately forty five years ago a woman who 

was born ana raised Fn this county married an alien. 

Rer husband was never naturalized. This question has 

arisen often in this county. The election judges 

have requested that I ask you for your ruling as to 

whether or not this woman is a citizen and entitled 

to vote. 

"In 1919 the Commlssloners Court of this county 

granted a franchise to certain members of one~of our 

rural communities to build a telephone line from the 

county seat to such community. The 1Lne vas immediately constructed and continued in operation until 

very recently. The county granted another franchise 

to a power company to construct an electric light 

wire along the same highway right-of-way from the 

county seat to said community. When the electric 

light wires were put In use, they killed completely 

the telephone 1Fne and the telephone line cannot now 

be used because of the electric llne. It 1s admitted 

by the people owning the telephone line that there 

can be procured and constructed telephone lines, at 

the same location of their present lines, whFch would 

be satisfactory, but the excuse of making the improvements and changes would be prohibitive to the 

community. The Commissioners Court of this county 

has requested that I ask your ruling as to whether 

or not Bee County is liable In damages to the people 

owning the telephone line by reason of the county 
Honorable 0. Kennedy, page 2 O-2318 

having first granted a franchise for the construction of the telephone lines and later granted a franchise to another company to construct the electric 

light line which killed ana rendered useless the 

telephone line. 

By the Federal Constitution, Article 14, Section 1: 

"All persons born or naturalized in the UnLted 

States, and subject to the jurisdictions thereof, are 

citizens of the United States and of the State vhereIn they reside." 

Section ,l of Title 8, U.S.C.A., provides that: 

"All persons born in the United States and not 

subject to any foreign power are declared to be cltFzens of the UnIted States." 

Section 9, Section 9a and Section 17a of Title 8, 

U.S.C.A., read as follows: 

"Section 9. SAME; CITIZENSHIP OF WOMEN CITIZENS 

OF UNITm STATES AS AFFECTED BY~MARRIAGE. A woman 

citizen of the United States shall not cease to be 

a citizen of the United States by reason of her marriage after March 3, 1931, unless she makes a formal 

renunciation of her citizenship before a court having jurisdiction over naturalization of aliens." 

"Section ga. SAME; REPATRIATION OF NATIVE-BORN 

WOMEN MARRIEB TO ALIENS PRIOR TO SEPTEMBER 22, 1922; 

COPIES OF PROCEEDINGS. 'After June 25, 1936 a woman 

being a native-born citizen, who has or is believed 

to have lost her United States Citizenship (sic) solely by reason of her marriage prior to September 22, 

1922, to an alien, and whose marttal status with such 

alien has or shall have termtnated, shall be deemed 

to be a citizen of the Unlted States to the same extent as though her marriage to said alien had taken 

place on or after September 22, 1922: Provided ,hov 

m, that no such woman shall have or claim any rights 

as a citizen of the United States until she shall 

have duly taken the oath of allegiance as prescribed 

in section 381 of this title, at any place within or 

under the jurisdiction of the UnitedStates before 

a court exercising naturalization jurisdiction thereunder or, outside of the jurisdiction of the United 
Honorable 0. Kennedy, page 3 o-2318 

States, before a secretary of embassy or legation 

or a consular officer as prescribed in section 131 

of Title 22; and such officer before whom such oath 

of allegiance shall be taken shall make entry thereof in the records of his office or in the naturallzation records of the court, as the case may be, and 

shall dellver to such person taking such oath; upon 

demand, a certified copy of the proceedings had lncludlng a copy of the oath administered, under the 

seal of his office or of such court, at a cost not 

exceeding $1, which shall be evidence or the facts 

stated, therein before any court of record of judicial tribunal and ln any department of the United 

States." (Underscoring Italics) 

"Section 17a. SAME; MARRIAGE TO FOREIGNER. A 

citizen of the Unlted States may upon marriage to a 

foreigner make a formal renunciation of his or her 

United States citizenship before a court having jurisdiction over naturalization of aliens, but no citizen may make such renunciation in time of var. and 

if war shall be declared within one year after such 

renunciation then such renunciation shall be void." 

Alienage may arise in three wags; by a birth, by election, and by operation of law. CORPUS JUR., Vol. 2, p. 1044. 

In Re Chamorra (D. C. Cal., 1924), 298 Federal 669, 

with reference to Section 9, supra, it was held that this 

section had no effect on the status of an American woman who 

married an allen before the enactment of the section, and 

that such a woman remains an alien, 

We do not have sufficient facts to categorically answer your first question. However, if the woman, mentioned 

In your inquiry, was married before September 22, 1922, she 

is an alien and is not entitled to vote unless she has complied with Section ga, Title 8, U.S.C.A., supra. On the other 

hand, If the woman was a citizen of the Unlted States and 

married since the third day of March, 1931, unless she had 

made a former renunciation of her citizenship before a court 

having jurisdiction over naturalization of allens, she hss 

not ceased to be a citizen of the United States and the state 

of Texas. Provided, that she had not married an alien ineligible to citizenship, and would be entitled to vote unless 

otherwise disqualified. 

With reference to your second questlon, we direct 

your attention to Articles 1435 and 1436, Vernon's Annotated 

Civil Statutes, which read as follows: 
- - 

Honorable 0. Kennedy, page 4 o-2318 

"Art. 1435. POWEFtS.- Gas, electric current and 

power corporations shall have power to generate, make 

and manufacture, transport and sell gas, electric current and power to Individuals, the public and municipalities for light, heat, power and other purposes, 

and to make reasonable charges therefor; to construct, 

maintain and operate power plants and substations 

and such machinery, apparatus, pipes, poles, wires, 

devices and arrangements as may be necessary to operate such lines at and between different points In 

this State; to own, hold and use such lands, right 

of way, easements, franchises, buildings ana structures as may be necessary for the purpose of such 

corporation." 

"Art. 1436. RIGHT OF WAY.- 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 lncorporated city or town in this State with the consent and under the direction of the governing body 

of such city or town. Such lines shall be constructed 

upon suitable poles In the most approved 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." 

In the case of McCULLOCH COUNTY ELJXTRIC CO-OP vs. 

HALL, 131 S. W. (2nd) 1019, among other things, it was held 

that: 

"The law Is settled in Texas, the United States 

and in England that there Is no liability for induction and conduction with a telephone line by a hlghpower transmission line, In absence of negligence, 

malice of unskilfulness on the part of the lnterferlng transmission line or agency; and no extended dlscusslon need be made of this question. 

"The above conclusion of nonliability in absence 

of negligence Is predicated upon the reasoning that 

where a right is common and unlversale, and capable 

of being exercised by all at the same time, the rule 
Honorable 0. Kennedy, page 5 O-2318 

that he who is prior in point of time Is prior in 

the field does not thereby gain a monopoly of use. 

In applying the rule courts have held that a telegraph company cannot recover damages for the mere 

construction of a power line so close to its vlres 

that the Induction interferes with their use," 

This case further holds in effect that if an electric 

company in bulldlng a transmission line paralleling the telephone line and could find no system unless it were metalllcized,and the electric company selected a system which was safer 

to,the public generally , the owner of the telephone system 

should bear expenses of metalllcizlng the telephone lines. 

It was held in our oplnion No. 0-1805: 

"That the Commissioners Court would not have the 

authority to grant a franchise to the Central Power 

& L);ght Company to cover the County of Brewster, Texas. 

We are enclosing a copy of this opinion for yowconvenience. 

The general rule governing powers and llmltatlons of 

the County Commissioners' Court, as set out by the Supreme 

0o~~~,':,"~CMM~S"'"""" COURT vs. WALLACE, 15 S. W. (26) 535, 

, as follows: 

"The Commlssloners' Court Is a creature of the 

State Constltutlon, and Lts powers are limited and 

controlled by the Constitution and the laws as passed 

by the Legislature. Art. 5, Sec. 18, Constitution 

of Texas; Baldwin VS. Travis County 88 3. W. 480; 

Seward vs. Falls County, 246 S.W. 728; Land vs. R. 

Bland VS. Orr, 39 S.W. 558.” 

Articles 2351 throughout 23728, Vernon's Annotated 

Civil Statutes, as amended, set out the various powers and 

duties of the Commissioners' Court and are too lengthy to set 

out in this opinion. However, it should be pointed out that 

none of the above mentioned articles directly or indlrectlg, 

give the Commissioners' Court the power to izsue a county 

franchise to the electric light and power company or to the 

telephone company, mentioned above. 

In !lXX. JUR., vol. 19 at pp. 876, 879, we find the folloving language in regard to franchises: 

"To be a franchise the right must be of such a 
-. . 

Honorable 0. Kennedy, page 6 O-2318 

nature that, without express legislative authority, 

It cannot be exercised * * * The legislative department of the government Is the source of the grant of 

a franchise + * * The legislature, unless constltutlonally inhibited, may exercise authority by direct 

legislation, or through agencies duly established, 

having power for that purpose." 

It Is a well established rule that the Commissioners 

Court may exercise only those powers specifically designed 

by the Constitution or the Statutes; and the fact that a 

franchise is a very special privilege only given by direct 

legislative grant or by specifically delegated agency, we 

must reach the conclusion that the County Commlstiloners Court 

does not have the parer or authority to grant a county franchise to an electric company or a telephone company. 

A county Is a body corporate which acts through its 

Commissioners Court. The acts of the Court, therefore, In 

good faith performed within the scope or apparent scope, of 

the powers committed to It under the Constitution and laws 

are the acts of the County. TX. JUR., vol. 11, p, 629. 

One who deals with the county is charged with notice 

of regulations created by the legislature; and a custom which 

Ignores the law cannot be invoked for the purpose of valid&tlng a transaction which is othel*rlse invalid. TEX. JUR. Vol. 

11, 640; GOSS v. FANNIN COUNTY, 244 S.W. 204. 

In view of the foregoing you are respectfully advised 

that It Is the oplnlon of this department that the Commissloners Court of Bee County did not have the legal right or authority to grant a franchise to the telephone company or to 

the power company, and such unauthorized acts of the Commlssioners' Court would not be acts of the county. Therefore, 

Bee County would not be liable for damages to people owning 

the telephone line which was rendered useless by the construction& operation of the power line. 

Trusting that the above fully answers your inquiry, we 

are 

AW:ob:vc Yours very truly 

ENCLOSURE ATTORNEY GENERAL OF TEXAS 

APPROVED JULY 1, 1940 By s/Ardell Wllll~ms 

s/Gerald C. Mann drdell Wlllitims 

ATTORNEY GENERAL OF TEXAS Assistant 

Approved Opinion Committee By s/BWB Chairman