,’

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 512/662-4547

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 JamesM. Kuboviak Brazes CountyAttorney Courthouse Bryan,Texas 77853 OpinionNo. .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 liabilityof a countywith respect to buried mble in a county right-of-way that is damaged t'ythe county during the widening of a public ro.ad? The questionwas raised by the fact that a county comissioaers court, in 1979, acoptod at a meeting of the courtwhat purports to be an agreementwith a telephone company that, among other things, stat?s that cha county "will ir,no way be responsible for ar.ydamage chat might occur to any existing lines in the right-cf-way." A ccuntywcrk crew has damaged the telephone company's buried cables during road widening construction. The county suggests that the "agreement" that it adopted in 1979 isbinding on the telaphone company. The liabilisf of a county for damage caused by the countp Cc cableburied in its right-of-wayinvolves factualdetemimtions which this office is not authorized to decide. SeeAttorusy General @pInion JM-408 (1985). Also,we cannotdecide the'faccualissuesnecessary fo determine the existence of a contractual agreement, such as consideration and communlcarion of an acceptance. We conclude, however, that a county,by resolutionor otherwise,may not unilatarallv change the general law of liability applicable to the county for the damage in question.
Tort liability is determinedby the legisiaturaand the courts ;n the statutory and case law of the state. In addition to the wellestablishedrecovery of damagesbased on the theoryof negligence, the Texas courts have allowed recoveryon thebasis of the liabilityunder article I. sectiott17 of the Texas Constitution for taking, damaging, or destroyingprivateproperty for publicuse. See StateV. Hale, 146 S.W.Zd 731, 737 (Tex. 1941). The Texas courTalso have allowed

P. 2234Eonorable JamesH. 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,cof sovereign immunity. See Lime v. - -- Texas Tech University, 540 S.W.2d 297, 298 (Tex. 1976). ThaiTexas 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 ojia 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 inconveniencethe public in the use of such roads, streets, andwaters. This right is grantedby the~legislature and callhotbe denied by a county. See Reldt ye. Telephone Company, 482 S.W.2d 352, 355,357 ~SouthwrstrrnBeil 5 (Tex. Civ. App. - Corpus Christ1 1972,no writ); AttorneyGeneral OpinionsM-1218 (<972);N-~OE~ (1969);O-2517 (1.940).
It is well-established that a county commissioners court possesses only the powers cclnferredeither expressly or by zrcessary implicationby the constitutionand statutes of this state. See Tex. Const. art. V, 1948). 518; Canales V. Laughlin, 214 S.W.2d 451. 4r(Tex.

A countymay contract only in themanner 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-wayof a county, so long as the telephone company does not inconvenience the .publicin 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 GeneralOpinions JM-432 (19:36); H-1015 (1977). -

p. 2235Honorable JamesM. 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 cableswithin the right-of-way of the county, tielong as the company does not disturb the public in the use of the road.

TM MATTCZ Attorney General of Texas JACK HIGHTOWER FirstAssistantAttorney General
NARY KELLER ExecutiveAssistactAttorney General ROBERT GRAY SpecialAssistantAttorney General PICK CILPIN Chairman.Opinion Committee Preparedby Nancy Sutton AssistantAttorney General

p. 2236