February 7,200O 

The Honorable Tim Curry 

Tarrant County Criminal District Attorney 

401 West Belknap Street 

Fort Worth, Texas 76196-0201 

Opinion No. JC-0179 

Re: Whether the Tarrant Regional Water District 

may lease to a private telecommunications carrier 

excess capacity in a fiber-optics cable installed to 

operate the Water District’s pipeline, and related 

questions (RQ-0115-JC) 

Dear Mr. Curry: 

The Tarrant Regional Water District (the “Water District”) has acquired pipeline easements 

running from Tarrant County to reservoirs located in Henderson, Navarro, and Freestone counties 

in east Texas. See Letter from Honorable Tim Curry, Tarrant County Criminal District Attorney, 

to Honorable John Comyn, Attorney Genera1 of Texas, at 1 (Sept. 20, 1999) (on file with Opinion 

Committee) [hereinafter “Request Letter”]. To run water from the reservoirs to Tarrant County, the 

Water District intends to install a water pipeline and a fiber-optics cable, which will operate the 

pipeline with a “Supervisory Control and Data Acquisition (SCADA) System.” Id. at 2. The Water 

District will have excess capacity in the fiber-optics cable for many years. See id. You ask generally 

whether the Water District may lease to a telecommunications carrier “all or part of the excess 

capacity of the bandwidth provided by the fiber optics cable” until the Water District needs the 

additional capacity. See id. Because the Water District has statutory authority to lease property to 

any person, see TEX. WATER CODE ANN. 5 49.225 (Vernon Supp. 2000), we conclude that the Water 

District is not precluded by statute from doing so, although whether any particular easement permits 

the installation or lease of fiber-optics cable is a question of fact. You ask us to assume, in reaching 

this conclusion, that a telecommunication carrier’s use ofpart ofthecapacity of the fiber-optics cable 

“will not cause the cable to be any larger or cause any more detriment to the landowner’s land than 

ifthe use of the fiber optics cable was limited to the SCADA operation of the water pipeline, which 

the Water District has determined to be necessary.” Id. at 2. 

You specifically ask seven questions: 

1. Does the language ofthe subject pipeline easements submitted 

[with the Request Letter] authorize the Water District as a matter of 

law to install a fiber optics cable for the purpose of operating its 

pipelines with a SCADA system? 
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2. Is the test for answering the above a factual inquiry as to 

whether or not the fiber optics cable use of the pipeline easement was 

“reasonably within contemplation during the acquisition of the rightof-way” or “whether the grantor could have reasonably contemplated 

such uses as within the easement at the time he granted it”? 

3. Are the contemplated additional uses ofthe fiber optics cable 

by leasing the excess capacity to a telecommunication carrier a 

“private use” prohibited by Texas law? 

4. Even if the lease of the excess fiber optics cable capacity to a 

telecommunication carrier is “aprivate use,” is the additional use still 

permitted under the “apportionment of easements doctrine”? 

5. Is such fiber optics cable sharing also authorized by the 

powers expressly delegated to the Water District by the Texas 

Legislature or those powers which exist by implication? 

6. Is the additional use of the fiber optics cable by a 

telecommunication carrier, assuming that it causes no more damage 

to the land already burdened with a pipeline easement than if the 

cable were limited to the Water District’s authorized SCADA use, 

“an additional burden” which entitles the landowner to additional 

compensation, or an “incidental use” for which the landowner 

receives no additional compensation? 

7. Is this an illegal “recoupment”? 

Request Letter, supra, at 3,8,16, 18,20. 

You first ask us to construe the language of the pipeline easements, and your second question 

suggests why this office cannot do so: because it involves a “factual inquiry.” You tell us that the 

easements: 

specifically provide for (I) “_ all necessary electric and 

communication lines . for the purpose ofoperating and maintaining 

the said pipeline”; (2) “. one water transportation pipeline, with all 

equipment and appurtenances incidental thereto. .“; and (3) “. one 

water transportation pipeline and appurtenant facilities, including all 

necessary electric and communication lines . as may be necessary 

for the purposes of operating such pipeline.” 

Id. at 2. 
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Whether any particular easement allows the Water District to install a fiber-optics cable at 

all or to lease excess fiber-optic cable capacity requires a court to, among other things, construe the 

documents and examine the grantor’s intentions. “The test whether an easement acquired by a 

public body may be burdened with” a particular use is whether the grantor reasonably could have 

contemplated such a use as within the easement at the time the easement was granted. Tex. Att’y 

Gen. Op. No. DM-420 (1996) at 9 (citing City of Sweetwater v. McEntyre, 232 S.W.2d 434 (Tex. 

Civ. App.-Eastland 1950, writ refd n.r.e.) andMilam County v. Akers, 181 S.W.2d 719 (Tex. Civ. 

App.-Austin 1944, writ ref d w.o.m.). The understanding of the parties to the easement may be 

relevant to the documents’ construction, and that understanding cannot be decided without 

examining factual evidence. See Tex. Att’y Gen. Op. No. DM-420 (1996) at 9. This office cannot 

resolve fact-based questions. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that 

question of fact is beyond purview ofthis office); JC-0027 (1999) at 3 (stating that questions of fact 

cannot be addressed in attorney general opinion); JC-0020 (1999) at 2 (stating that investigation and 

resolution of fact questions cannot be done in opinion process). 

Skipping to your tifih question, we conclude as a matter of law that the proposed fiber-optics 

cable lease may be within the Water District’s express statutory powers. Section 49.225 of the 

Water Code explicitly authorizes a general-law district, including the Water District, to lease real 

or personal property to any person. See TEX. WATER CODE ANN. 5 49.225 (Vernon Supp. 2000). 

“The lease may contain the terms and provisions that the board determines to be advantageous to the 

district.” Id. The proposed lease of excess fiber-optics cable capacity is a lease of property to a 

person under section 49.225. 

The fiber-optics arrangement you describe is analogous to the arrangement this office 

approved in Attorney General Opinion H-1217. See Tex. Att’y Gen. Op. No. H-1217 (1978) at I. 

There, the Lower Colorado River Authority, a water district organized under article XVI, section 59 

of the Texas Constitution, asked whether it could permit a private corporation, Entex, to use part of 

the natural-gas pipeline owned by the River Authority and running to the River Authority’s electric 

generating plant. See id. at I. The statute applicable to the River Authority, former Water Code 

section 51.137, repealed by Act ofMay 25, 1995,74th Leg., R.S., ch. 715, 5 40, 1995 Tex. Gen. 

Laws 3755, 3802, authorized a district to “enter into a contract for the use by another of its water, 

power, facilities, or service, either inside or outside the district, except that a contract may not be 

made which impairs the ability of the district to serve lawful demands for service within the district.” 

SeeTex. Att’y Gen. Op. No. H-1217 (1978) at 1 (quoting former TEX. WATERCODEANN. 4 51.137, 

repealed by Act ofMay 25,1995,74th Leg., R.S., ch. 715, § 40, 1995 Tex. Gen. Laws 3755,3802). 

The opinion concludes that section 51.137 authorized a private corporation’s use of the River 

Authority’s natural-gas pipeline “so long as the proposed contract will not impair” the River 

Authority’s “ability to serve its lawful customer demands.” Id. at 2. Section 49.225 of the Water 

Code, which applies to the Water District, among other provisions, appears to have replaced section 

5 1.137 of the Water Code: the same legislation that repealed section 5 1.137 adopted section 49.225 

as a general provision applicable to all general-law districts. See Act of May 25, 1995,74th Leg., 

R.S., ch. 715, 5 2, sec. 49.225, 1995 Tex. Gen. Laws 3755, 3775. 
The Honorable Tim Curry - Page 4 (JC-0179) 

In response to your third question, we conclude that the Water District’s proposed lease of 

excess fiber-optics cable capacity to a private telecommunications corporation is not a prohibited 

“private use” ofpublic funds so long as the Water District receives adequate consideration from the 

telecommunications firm in exchange. Again, we considered a similar question in Attorney General 

Opinion H-1217. See Tex. Att’y Gen. Op. No. H-1217 (1978) at 3. That opinion concludes that 

Entex’s use of the River Authority natural-gas pipeline is not an unconstitutional use of public 

property for private benefit so long as the River Authority is adequately compensated for the use of 

the pipeline: 

Article [III], section 5 I of the Texas Constitution prohibits the grant 

ofpublic money to corporations. See also Tex. Const. art. [III], 5 52. 

However, the lease of public property to a private entity does not 

violate this provision where the transaction serves a public purpose 

and where an adequate rental is paid. See Dodson v. Marshall, 1 I8 

S.W.2d 621 (Tex. Civ. App.-Waco 1938, writ dism’d); Attorney 

General Opinions H-445 (1974); H-109 (1973). In our opinion, the 

proposed transaction serves a public purpose. The Legislature has 

provided statutory authority for it, thereby indicating it is a proper 

undertaking of a conservation and reclamation district. It will 

facilitate the transportation of fuel to public schools and to 

consumers, an endeavor affected with a public interest even when 

engaged in by private entities. See V.T.C.S. art. 1446c, 5 2; art. 

6050, § 3. So long as LCRA receives adequate consideration for the 

use of its pipeline, the transaction will not grant an unconstitutional 

benefit to a private entity. 

Id. Thus, the Water District may lease excess fiber-optics cable capacity to a private entity without 

running afoul of constitutional restrictions on the use of public Iimds if the Water District receives 

consideration from the private telecommunication corporation commensurate with the value of the 

fiber-optics cable capacity. Having so concluded, we need not answer your fourth question, which 

is contingent upon a conclusion that the proposed lease arrangement is a prohibited “private use.” 

You ask whether a lease of excess fiber-optics cable capacity to a telecommunications carrier, 

“assuming that it causes no more damage to the land already burdened with a pipeline easement than 

if the cable were limited to the Water District’s authorized SCADA use,” constitutes an “additional 

burden” for which the landowner receives additional compensation, or an “incidental use” for which 

the landowner is not entitled to additional compensation. Request Letter, supra, at 18. The 

“incidental use doctrine,” for which you cite Mellon v. Southern Pacific Tramp. Co., 750 F. Supp. 

226 (W.D. Tex. 1990) appears to apply only to railroad rights of way, which are bundles of rights 

more substantial than easements. SeeMellon, 750 F. Supp. at 229-30 (in part quoting Western Union 

Tel. Co. v. Pennsylvania R.R., 195 U.S. 540,570 (1904)). We do not understand the Water District 

to have more than an easement, so we do not believe that the incidental use doctrine, as articulated 

in Mellon, applies. 
The Honorable Tim Curry - Page 5 (JC-0179) 

Nevertheless, we agree that the landowners here may have a claim for additional 

compensation. Just as the question of whether a particular easement permits the Water District to 

install fiber-optics cable or to lease its excess fiber-optics cable capacity, the question of whether the 

easement grantor must be compensated for the installation or lease involves interpretation of the 

easement itself and the resolution of numerous fact questions. Where an easement is granted for 

general purposes, the subservient estate includes the use required at the time of the grant as well as 

the right to use the easement for any purposes incidental to the use to which the property has been 

put. See Clutter v. Davis, 62 S.W. 1107, 1108 (Tex. Civ. App.-Dallas 1901, writ refd); 31A TEX. 

JUR. 30 Easements & Licenses in Real Property 5 67 (1994). For example, in Joyce v. Texas Power 

& Light Co., 298 S.W. 627 (Tex. Civ. App.-El Paso 1927, no writ), the court stated in dicta that 

Texas Power & Light Company, which had a right to condemn land necessary to erect poles and 

lines to transmit electric current, would not lose that right by also erecting telephone wires. Id. at 

629. Such a secondary use “may or may not amount to an additional or other servitude upon the 

land,” the court said. Id. Whether a secondary use constitutes an additional burden for which the 

grantor must be compensated is a question that cannot be resolved in the opinion process. See, e.g., 

Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond purview ofthis 

office); JC-0027 (1999) at 3 (stating that questions of fact cannot be addressed in attorney general 

opinion); JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be 

done in opinion process). 

Finally, you ask whether the proposed lease constitutes “an illegal ‘recoupment.“’ Request 

Letter, supra, at 20. “The ‘recoupment theory,“’ you state, “refers to a means by which the 

government can finance a public project by taking more property rights than necessary for the project 

itself to later resell or lease to third parties to generate income for the government with which it 

might pay project costs.” Id.; see Atwood v. Willacy County Navigation Disc., 271 S.W.2d 137,141 

(Tex. Civ. App.-San Antonio 1954, writ ref d n.r.e.), appenl dism ‘d, 350 U.S. 804 (1955) (per 

curiam) (explaining recoupment theory). Texas courts do not appear to have adopted the recoupment 

theory. See Atwood, 271 S.W.2d at 141-42. But we understand you to question whether using the 

easement for the proposed lease exceeds the power of eminent domain and is therefore illegal 

because proceeds from the lease may help pay the costs of the construction or operation of the 

pipeline. 

A governmental body in Texas exceeds its power of eminent domain when “and only when” 

it “condemns land for a use unconnected with its legitimate purpose[], simply to meet the 

costs of its proper objectives.” Atwood, 271 S.W.2d at 141. “[Tlhe mere fact that a municipal 

district, through its legitimate operations, may be expected to meet its expenses and even pay for the 

construction costs of its plant and facilities[] does not render its exercise of the power of eminent 

domain illegal.” Id. 

Assuming the facts are as you represent them, the proposed lease does not appear to exceed 

the Water District’s power of eminent domain. Presumably, the Water District has acquired the 

easements for the purpose of constructing pipeline to transport water from distant reservoirs to 

District constituents. If the fiber-optics cable is necessary to operate the pipeline and the easements 
The Honorable Tim Curry - Page 6 (JC-0179) 

permit its installation and lease, the proposed lease use appears incidental to a legitimate purpose of 

the Water District. See TEX. CONS. art. XVI, 5 59(a). Conversely, it does not appear that the Water 

District has acquired the easements solely to install a fiber-optics cable so that it could lease capacity 

to a telecommunications company and thereby raise money. Thus, the proposed lease does not 

appear illegally to exceed the Water District’s power of eminent domain. 

SUMMARY 

Whether a particular easement encompasses an easement to 

install fiber-optics cable to operate a water pipeline or the authority 

to lease excess fiber-optics cable capacity is a question of fact. 

Section 49.225 of the Water Code does not, as a matter of law, 

preclude the Tarrant County Regional Water District from leasing 

excess fiber-optics cable capacity to a telecommunications company. 

So long as the Water District receives from the telecommunications 

company adequate compensation for the use of the fiber-optics cable 

capacity, the lease does not constitute an unconstitutional private 

grant of public property. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General - Opinion Committee