,’ 

A 

JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711. 2546 

512/475-2501 

Telex 9101674-1367 

Telecopier 51214750288 

714 Jackson. Suite 700 

Dallas. TX. 752024506 

2141742.6944 

4624 Alberta Ave.:Suite 160 

El Paso, TX. 7!3905-2793 

9151533.3464 

21 Texas. Suite 7W 

,s,on, TX. 77002-3111 

J12235666 

606 Broadway,Suite 312 

Lubbock. TX. 79401-3479 

8081747.5236 

4309 N. Tenth, Suite 6 

McAllen. TX. 76501-1665 

5 12/662-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 762052797 

51212254191 

An Equal Opportunity/ 

Aftirmative Action Employer 

The Attorney General of Texas 

wr 6. 1986 

Honorable James M. Kuboviak 

Brazes County Attorney 

Courthouse 

Bryan, Texas 778 53 

Opinion No. .X+489 

Re: Liability of a counry for 

burled cable damaged during 

widening of a road 

Dear Mr. Kuboviak: 

You ask the fo'llowing question: 

What is the liability of a county with respect to 

buried mble in a county right-of-way that is 

damaged t'y the county during the widening of a 

public ro.ad? 

The question was raised by the fact that a county comissioaers 

court, in 1979, acoptod at a meeting of the court what purports to be 

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 

might occur to any existing lines in the right-cf-way." A ccunty wcrk 

crew has damaged the telephone company's buried cables during road 

widening construction. The county suggests that the "agreement" that 

it adopted in 1979 is binding on the telaphone company. 

The liabilisf of a county for damage caused by the countp Cc 

cable buried in its right-of-way involves factual detemimtions which 

this office is not authorized to decide. See Attorusy General @pInion 

JM-408 (1985). Also, we cannot decide the'faccual issues necessary fo 

determine the existence of a contractual agreement, such as consideration 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 

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 wellestablished recovery of damages based on the theory of negligence, the 

Texas courts have allowed recovery on the basis of the liability under 

article I. sectiott 17 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-ofway 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 only to the restriction that ic must ba done -din 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. 

Telephone Company, 482 S.W.2d 352, 355,357 

~Southwrstrrn Beil 

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 cclnferred either expressly or by zrcessary 

implication by the constitution and statutes of this state. See Tex. 

Const. art. V, 

1948). 

518; Canales V. Laughlin, 214 S.W.2d 451. 4r(Tex. 

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