Honorable Fred Norris,page 2 (C-2274)

“A resolution

ganting to the GULF STATESUTILITIES CCMPAEY,

its successors

and assigns,

the right, privilege and frenohise

to erect, oonstN&, maintain,

operate,

use, extend,

remove,replace,

and repair in, under,upon, over,aoross, and along any and all of the present and futurepubli.0

roads, highways,

streams.

squares,

parks, lanes and alleys of Polk Cm&y, Texas,and over and across sny streamor streams, bridge or bridges,

now or hereafter

owed Ot oC&lWiled by it, a QVtiam of poles,pole lines,transmission lines, Wires, guys, conduits,

and otherdesiredinstrumentalities and appurteaances,(including telegraph

and telephone

poles and wires for grantee's - -Ise),

necessary or proper for the supply and distribution of eleatrioity

for light,heat, and power, and for other purposes for whiah electriaity may be used, to Polk County and its inhabitants of said county,or eny other personor persons, firm or oorporation. (Underscoring mine)
"IE IT RESOLVEDBYTBE COMKISSIGEEES' CC'JRT OFPQLE CCUETY,

TEXAS* "Section

1. The word 'grantee' shall herein denoteGULF STATESUTILITIES CCMPAEY, a oorporation,

its successors

end assigns;

and word 'grantor' shall denotePolk County,

Texas. 'Se&ion 2. That Polk Countg does hereby

grant unto theaaid grantee,its suooessors and aarsi@aas,

the right,privilege andfranchise to erect,oonstNot, maintain, operate,

use, extend,remove,replaoeand repair,in, under,upon, over, acrossand along any and all of the present 8 streets,

squares,'parks,

lanes and alleys,owned or controlled by it, a systemof poles, pole lines,transmission lines, tires, guys, conduits, and other desirable instrumentalities

and appurtenances, (including

telegraph

andtelephone pole8 and for use of grantee) necessary

or proper for the parpose,of carrying,

oonduoting, supplying,

distributing

and sellingto Polk County, and its inhabitants of Polk County,

and any other person or persons, firm or firms, oorporation or corporations, electricity

for light,power and heat, and fop any other purpose for which eleotricity

ms$ bs used? to carry,conduot,supply, and distrilxte

eleotrioity

by means of said poles,pole lines,iransmissioa lines, oonduits

or other instrumentalities,

and to sell the same to Polk County,and the inhabitants thereof,

or to any other person or persons, firm or firms, oorporation or corporations. "Section

3. The work of oonstruoting and erectingpoles, towersand lines.shall be so aonducted

as to not interfere with the constructionand maintenanoe

of or withtraffic over sa%d roads, streets, bridgesand alleys. "Section

4. The servicefurnished hereunder

to said Polk Countyand it8 inhabitants shall be first olass in all m3peotS, considering all ciroumfrtences. "Section

5. Grantee shallhold Polk Countyharmslss for all expenses

or liability for any act or negleotofgrants hereunder. "Seation

6. Nothingherein contained shall ever be oonstNsd as cOnferriZ3g upon the grantee aqy exclusive rights or privileges of any nat :e whatsoever.Honorable Fred Norris,

page 3 (O-2274)

"Section

7. This resolution shall be in force fromand after its passage, and, upon the filing by the granteeof a written aooeptanos withthe CountyClerk of Polk Counti

within sm (60) days after the final passage of this resolution, sams shall then beowe a binding contraat and shall exist for a periodof fifty (50) years. "Passed and duly enaoted

by the Conmdssioners' Court of Polh County, Texas, at a regularterm and sessionof said Court, in aooordance with the laws of the State of Texas, on this the 10th day of October, I.D. 1927.
"JamesE. Bill, Jr. County Judge of Polk County, Texas, Hobby Galloway, Commissioner

Prec.#1, of PoIk County Texas,
IL MoCraney, Codssioner, Preo. #2, Polk County, Texas, B. L. Thompson, Conmissioner, Rec. #, Polk County, Texas, Fred Bandley, Conmissioner,

Free, #4, Polk County, Texas~" Articles1435 and 1436, Vernon's

Annotated

Civil Statutes, read as follows* '%t.1435* POEERS. - Gss, eleotriccurrent and power corporations shall have power to generate, make and manufacture, transportand sell gas, electric current

and power to individuals, the publio end municipalities for light,

heat, power and other purposes, and to make reasonablecharges thsrefort

to oonstruot, maintain

and operate

power plantsand substations and such machirrery, apparatus, pipes,poles,wires, dwioes and arrangements as maybe necessary to operatesuah lines at and betweendifferent points inthis State:to own, hold, and use suoh lands, right of way, easements,fknohises, buildings

andstruoturesasmay be neoessary for the purposeof suoh oorporaticm."
"Art. 1436.RIGHT OFEAY. - Such corporatirm shall have the right and power to enter upon, condemn and appropriate

the lands,right of way, easements and property

of any person or oorperation, and shall have the right to ereot its lines over and aoross any publicroad, railroad, railroad

right of way, interurbanrailroad, streetrailroad, oanal or stream in this State,any streetor alley of any incorporated

oily or town in this Statewith the oonsent and under the direotion of the governing

body of such city or town* Such lines shall be construoted

upon suitable

poles inthe most apprwd manner and maintained at a height above the ground of at least twenty-one feet; or pipesmay be placedunder the ground, as the exigencies

of the case may require." Article 6021,

Vernon's

Annotated

Civil Statutes,

providesin part that:Honorable Fred Norris,

page 4 (O-2274)

"The right to rua pipe lines, telegraph and telephone

lines along,aoross or over any publicroad or highway cafl only bs exercised

upon oonditionthatthe traffic thereonbe not interfered with, and that such road or highway be promptly

restored to its former condition of usefulness,

and tt;:

rest~raticn

thereof

to be sub@& also to the supervision of the canmissioners s:*>t!A or other proper local authority.
. . ." It mas held in our Opinion No. C-18,Xthat "the ooxwxissioners' courtn?,uld not have the authori+yto grant a franchise %o the Centrai

Power 60

Light Company to coverthe county of Brewster, Texas." ‘:Je

are enciosing

a copy of that opinion for your ooavenisnoe~ The general

rule governing

powersand limitations of the CountyCommissioners' court

, as set out by the SupremeCourt in Commissioners Courtv. Xallace15 SW (Zd) 335, reads, in part as f 0110~s~ 'The Commissioners' Court is a creature of the State Constitution, and its powers are limitedand controlled by the Constitution and the laws as passed bythe kgislature. Art. 6, Sec. 18, Const.of Tex; Baldwin V. Travis County,58 sIA480; Sews& V. Falls County,246 S.W. 728; Bland F. Orr 39 SW 558."

" Articles 2351 and 2372a, Vernon's

Aunotated

Civil S:atutes,

as emended, set out the variouspowers and duties of the Commissioners Court, andsretoo lengbhy

to set out in this opinion. However,it shouldbe-pointed out that none of the abovementioned arti+zs,di&&y '1. indirectly,

gives the consnissioners' courtthe power to issue a countyfranchise ix the above

mentioned

power company. In Tex. Jur.,

Vol. 19, at pp. 876-879, we find the following language

in regardto franchises:
"To be a franohise

the rightmust be of suoh a nature that, from empress legislative authority,

it cannot

be exercised.

. . . The legislative department

of the Government

is a souroe of the grant ,of a franchise.

e . . The Legislature,unless constitutionally inhibited,

may exercise

authoriw by direct legislation, or throgghagencies duly estaBlished, hating power for that xzrpose,"
It is a sell established rule that the commissioners' courtma~r

exeroise only those powers specifically designated

by the Constitutien or the statutes, or thosepowers necessarily implied. The fact that a franobise is a very special privilege

given only by a direot legislative grant cr by spsoifical;ly designated agenay,

we must reach the conclusion that the county commissioners court does not have the power or authority to grant a county franchise to a pewer canpa~pr. It will 'be

noted that Article 14:6 permits corporations like the one here under consideration to erect its lines only “over and acmssn and not ‘ along ” publicroads, etc.
_ - When a corporation as above mentioned

ereots and constructs its lines, poles and lines, etc., over and acrossany street and alley of any incorporated city and town in this State, such corporation must do so with the consentandHonorable Fred Norris,

page 5 (oC2274)

under the direction of the governing

body of suah city or town. A8 abow pointedout, the State by Article 1436 has conferred ths right upon corporations

a8 abovementioned

to erect and oonstruct its lines over and acrosspublic roads. It is a ftmdamental principle

of law that propertyshall not be taken for publiouse withoutadequate aompensation, aadthat no person shall be deprivedof his property exoept by due course of law. The plat showing the looation

of the right of way for the old highway, the right of way for the power line and the right of way for the newhighway shows that the power line did not crossor

go over theoriginal highway, but when the new highway was coastrutted,

the right of way for the 8am orossed the right of way of the p-r line or utility company, aeoessitating

the renoval of a few poles of the power line along the side of the new high-say, also the utilit)r

oompcrqy was required to u8e higherpoles in orossing the highwayanderect oertainguy lines in making the above mentioned changes. However,

the utility company was not required

to seoure any additional

right of way for the abovementioned purposes. In view ofthe foregoing authorities,

you are respsotfully advisedthat it is the opinionof this Department that tie county

is liableto the Gulf States Utilities

Company for all reasonable expenses neosesarily inourred by said oompany for the purposes aforesaid.
You furtherstate in your inquirythat on April 5, 1938 the Gulf States Utilities

Company

presented

you with an aooount stilar to the above and that the 8~ eas paid bs the commissionersoourt. It is our furtkr opinion that if the faots in the abovementioned transaction

eere similar

to the Pa&s discussed in tb&8 opinion, then the oounty

would be liable for such expenses. Therefore,

your seoond question becomes

moot. Trusting

t&at the foregoing

fully answ8rs

your inquiry,

me are Yoursvery truly
A!EORNNYGENEIuL OFTEXAS By /s/Ardel: nrlliam8 Ardell Williams Assistant AWROVED JULY 15, 1940 /s/GROVER SELLERS FIRSTASSISTAET ATIORNEYGEEERAL AW:OB:egw APPROVED OPINION COEMITTEE BYBEBB. Chairman