AUSTIN. -rrcXAU 7es711 

CXAWYOB1ID c. WA'WIVS 

A%-rOYNgY a-RII. November 17, 1969 

Dr. George J. Beto, Director 

Department of Corrections 

Huntsville, Texas 77340 

Opinion No. M- 508 

Re: Whether the Texas 

. Board of Corrections 

must collect from 

public utilities a 

fair consideration 

for placing public 

utility lines on or 

across existing public 

roadways traversing 

State land under the 

control of the Department of Corrections, 

Dear Dr. Beto: and related question. 

In your request for opinion of this office, you present 

the following questions: 

1) Is the Texas Board of Corrections obligated 

to collect and must public utilities pay a 

fair and adequate consideration for placing 

public utility lines in, on, along, over or 

across existing public roadways which traverse State-owned land which is under the 

custody and control of the Texas Department 

of Corrections? 

2) May the Texas Board of Corrections, in the 

grant of a public roadway easement, limit 

the use of such easement to roadway purposes 

only and reserve the exclusive right to grant 

public utility easements in, on, along, over 

or across such roadway easement? 

Section 1 of Article 6203d, Vernon's Civil Statutes, 

authorizes the Texas Board of Corrections, with consent of 

the Governor and Attorney General, to: 

n . . . grant permanent and temporary right-of-way 

easements for public highways, roads and streets, 

and ditches, and for electric lines and pipelines 

consisting of wires, pipes, poles and other necessary equipment for the transmission or conveyance 

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Dr. George J. Beto, Page 2 (M- 508 1 

of, or distribution of, water, electricity, gas, 

oil or other similar substances or commodities, 

. . . along, across and over any and all lands 

now owned by the State of Texas as a part of the 

Penitentiary System, . . .” 

Section 2 of the same Article provides that '. . . such 

grants and leases shall be executed only upon a fair and adequate consideration. . . .'I 

However, public utilities - including telephone, telegraph, 

water, gas and electric corporations - are given express legislative authority by virtue of such Articles as 1416, 1433, 1436a 

and 1436b, Vernon's Civil Statutes, to lay their lines along, over 

and across public streets and highways within the State. 

The Court in Jones v. Carter,-101 S.W. 514 (Tex.Civ.App. 

1907, error ref.) stated at page 516: 

11 . . . Light, sewers, gas, and waterworks are 

among the common necessities of modern cities, 

and it is a matter of,common knowledge that such 

plants cannot be constructed and operated without 

running the lines and mains along or across the 

streets. They are some of the common uses to 

which streets are necessarily devoted." 

It has been recognized further that it is in the public 

interest to receive utility services: therefore, public utilities 

are authorized to use the streets and highways. State v. City of 

Austin (State v. City of Dallas), 160 Tex. 348, 331 S.W.2d 737 

(1960). 

The Legislature acting for the State has primary and 

plenary power to control public roads and streets. Recognizing this proposition, the Court in State v. City of Dallas 

(State v. City of Austin), 319 S.W.Zd 767 (Tex.Civ.App. 1959, 

aff. 331 S.W.2d 737) said at page 773: 

"There can be no question but that the Legislature can lawfully permit cities and private 

corporations to place facilities in streets 

and highways to provide essential utility 

service for the public, . . ." 

The Legislature has seen fit to grant direct statutory 

authorization to public utilities to use public roads and 

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Dr. George J. Beto, Page 3 (M- 508) 

highways. Some such authority is found in Articles 1416, 1433, 

1436a and 1436b, Vernon's Civil Statutes. It would therefore 

appear that Article 6203d, Vernon's Civil Statutes, would be 

rendered inapplicable to the question presented, since no additional grant of an easement would be necessary in order to 

entitle public utilities to take advantage of the right-of-way 

of existing public roadways. Accordingly, the Texas Board of 

Corrections would not be obligated to collect, nor public utilities required to pay, for placing lines in, on, along or across 

existing public roadways traversing State land under the custody 

and control of the Texas Department of Corrections. 

Question 2 relates to the power of the Texas Board of 

Corrections to grant an easement for roadway purposes, while 

reserving the exclusive right to grant public utility easements 

along and across the roadway easement. 

It has been held that the erection of telephone poles and 

wires along a public street or highway does not impose an additional servitude upon the highway. so as to require the public 

utility to condemn the land of the street for that purpose. 

Roaring Springs Town-Site Co. v. Paducah Telephone Co., 164 

S.W. 50 (Tex.Civ.App. 1914, aff. 212 S.W. 147). It has further 

been held that the statute so authorizinq is constitutional, 

x, 

though no additional compensation is provided. Huffaker v.. 

Lea County Electric Co-operative, 344 S.W.2d 915, 918 (Te 

Civ.App. 1961, error ref. n.r.e.); accord, Continental Pipe 

Line Co. v. Gandy, 162 S.W.Zd 755, 757 (Tex.Civ.App. 1941, 

error ref. w.o.m.1 

In Roaring Springs Town-Site Co. v. Paducah, 109 Tex. 

452. 212 S.W. 147 (1919), an attemnt had been made to dedicate 

streets and alleys-in a.townsite for public use, while reserving 

exclusive right to grant, for valuable consideration, the right 

to use the streets and alleys to construct telephone, telegraph, 

electric wires and poles, and gas, water and sewer mains. The 

Court held that under the public policy of the State, a public 

utility corporation had the authority to construct and maintain 

its poles and lines along the streets and alleys dedicated for 

public use. The Court stated at page 148: 

1, . . . the attempt to reserve . . . a right inconsistent with such authority cannot be upheld. 

For the general rule that the dedicator may 

impose such restrictions as he may see fit on 

making a dedication of his property is subject 

to the thoroughly established limitation that 

the restriction be not repugnant to the dedication or against public policy. . . ." 

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Dr. George J. Beto, Page 4 (M-508) 

The Legislature, by virtue of Articles 1416, et seq., 

has authorized public utilities to place their lines in, over, 

along and across public streets and roads within the State. 

Such authorization is not restricted to roads and highways 

to which the State or County owns the fee. Continental Pipe 

Line Co. v. Gandy, 162 S.W.Zd 755, 757 (Tex.Civ.App. 1941, 

error ref. w.0.m.). 

Therefore, by applying the same reasoning, advanced in 

the Roaring Springs Town-Site Co. case, the attempt to reserve 

exclusive right to grant a public utility easement over a roa'dway easement would be inconsistent with the direct legislative 

grant of authority to public utility companies to lay their 

lines over, along and across any public road, street or highway within the State. 

Accordingly, question 2 is answered in the negative. The 

Texas Board of Corrections is neither authorized nor entitled 

to limit the use of a public roadway easement to roadway purposes only, while reserving the exclusive right to grant public 

utility easements in, on, along, over or across such roadway 

easement. 

SUMMARY 

Public utilities, by virtue of the direct 

legislative grant of Articles 1416, 1433, 1436a, 

1436b, and other similar Statutes, are authorized 

to place their facilities within the right-of-way 

along public roads, streets and highways in this 

State. Therefore, the Texas Board of Corrections 

is not obligated to collect nor must public utilities pay for placing their lines in, on, along, 

over or across existing public roadways which 

traverse State-owned land under the custody and 

control of the Texas Department of Corrections. 

Accordinclv. the Texas Board of Corrections 

is without power.to reserve, in the grant of an 

easement for public roadway purposes, the exclusive right to grant public utility easements over 

such public roadway easement. 

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Dr. George J. Beto, Page 5 (M- 508) 

Prepared by DONALD JONES 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

John Reeves 

Harold Kennedy 

Roger Tyler 

Ronald Luna 

MADE F. GRIFFIN 

Staff Legal Assistant 

NOLA WHITE 

First Assistant 

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