ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Garnet F. Coleman Chair, Committee on County Affairs Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910 Dear Representative Coleman: August 26,2010
Opiuion No. GA-0793 Re: Whether a school district may access anduse a county'sright-of-way to install fiber optic cable (RQ-0818-GA)

YoustatethattheWeslaco Independent SchoolDistrict (the "WlSD")isprovidingfiber optic connectivityto all campusesandadmiuistrative officeswithinthedistrict. I All WlSD campusesand offices within the City of Weslaco's boundaries are connected, but the campuses located in Weslaco's extraterritorialjurisdiction

### (ETJ)2 are not. Request Letter at 

### 1. The city's 

### ETJ is located in Hidalgo County, and the county has refused WlSD's request for access to the rights-of-way of county roads to install fiber-optic cable, claiming that it does nothave authorityto grantthe school district suchaccess. 3 

### ld. Youaskwhethera school districthas authorityto access anduse a county's right-of-way to install fiber-optic cable to serve all schools in the district. 

### ld. The briefsubmitted by WISD maintains that the school district is entitled to access the county right-of-way for this purpose. See WlSD Briefat 3-4 (referring to "WISD's right to access" the county road right-ofway). It also assumes that it will not pay the county for use ofits road rights-of-way. See WlSD Briefat 2-3 (stating that ifthe district has access to the right-of-way, its only expenditure wouldbe the one-time cost ofinstalling the fiber-optic cable). We accordingly consider whether a school district is entitled to access the countyroad right-of-way to install fiber-optic cable. Anindependent school districtpossesses onlythosepowers expressly conferred onitby law orimplied as a necessary incident to thepowers expressly given. See Mesquite lndep. Sch Dist. v. Gross, 67 S.W.2d242,245 (Tex. 1934);Harlingen lndep. Sch Dist. v. 

### C.R Page & Bro., 48 S.W.2d

'Request Letter at 1 (available 01 http://www.texasattorneygeneral.gov). 'See TEx. Lac. GOV'T CODE ANN. § 42.021(a) (Vernon 2008) (describing extraterritorialjnrisdiction). 'The term "right-of-way" is sometimes used to mean a party's right to pass over a tract ofland, and it is also used to describe the strip ofland on which a road is constructed. See Tex. Elec. Ry. Co. v. Neale, 252 S.W.2d 451,454 (Tex. 1952) (addressing railroad right-of-way). Inthis request, "right-of-way" means the strip ofland on which a road is constructed. Seegenerally RequestLetter; Brieffrom W1SD at 3 (Oct. 9, 2009) (on file withthe Opinion Committee) [hereinafter WISD Brief].The Honorable Gamet F. Coleman

- Page 2 (GA-0793)

983,986 (Tex. Comm'nApp. 1932,judgm'tadopted). Thebriefs submittedfor this opinionrequest have not directed us to any Education Code provision expressly authorizing an independent school districtto access and use a county'sright-of-wayto install fiber-optic cable andwehave found none. Nor do we find such authority implied as necessary to expressly granted powers. We next turn to statutes outside ofthe Education Code as a possible source ofauthority. A review of the statutes granting easements in public roads to certain entities indicates that such entitlement exists only when expressly authorizedbythe Legislature. See generallyHill Farm, Inc. v. Hill County, 436 S.W.2d 320, 323 (Tex. 1969) (statingthat "responsible officials may, within the limits of thepower vested in them by the Legislature, authorize the use ofthe [road] subsurface for sewers, pipelines and other methods of transmission and communication that serve the public interest") (emphasis added). For example, Utility Code section 181.082, first enacted in 1874,4 provides that "[a] telephone or telegraph corporation may install a facility ofthe corporation along, on, or across a public road, a public street, orpublic water in a manner that does not inconvenience the public intheuse ofthe road, street, orwater." TEx. UTIL. CODEANN. § 181.082 (Vernon 2007); see also id 

### § 181.081(1) (defining "facility"). The Legislature has adopted similar provisions for other entities. See id §§ 181.005 (Vernon Supp. 2009) (gas corporation has the right to lay and maintain lines over and across a public road, subject to compliance with statutory conditions); 181.042 (Vernon 2007) ("An electric utility has the right to construct, maintain, and operate lines over, under, across, on, or along a state highway [and a] county road."); 181.102(a) ("person inthe business of providing community antenna or cable television service to the public" in an unincorporated area may install and maintain "equipment through, under, along, across, or over a utility easement, a public road, an alley, or a body ofpublic water"). Under Water Code chapter 49, "[a]ll districts5orwater supply corporations are givenrights-of-way within, along, under, and across all public, state, county, city, town, or village roads, highways, and rights-of-way." TEx. WATER CODE ANN. 

### § 49.220 (Vernon 2008). The leading case addressing the rights granted under such statutes determined that a political subdivision could not deny a telephone company's right under a predecessor ofsection 181.082 to use public roads and streets. See City of Brownwoodv. Brown Tel. & Tel. Co., 157 S.W. 1163, 1165 (Tex. 1913). See also Harlingen Irrigation Dist. Cameron County No.1 v. Caprock Commc 'n Corp., 49 S.W.3d 520, 524, 530 (Tex. App.-Corpus Christi 200I, pet. denied) (citing City of Brownwood for telephone company's right under Utilities Code section 181.082to install underground fiber optic cable along apublicroadway). Thereis no similar provision for school districts. The absence ofan express provision granting school districts the right to use public road rights-of-way is particularly significant because Texas courts have strictly construed statutes authorizing corporations to place fixtures in a public road right-of-way. Where a statute authorized

'SeeAnActConcerningPrivate Corporations, 14thLeg., R.S., ch. XCVII, § 51, 1874 Tex. Gen. Laws 120, 132 (authorizing telegraph companies to place fIxtures "along, upon and across any ofthe public roads, streets, and waters ofthis State") (earliest predecessor ofUtility Code section 181.082). 'For purposes ofthis Water Code provision, "'[d]istrict' means any district or authority created by authority of either Sections 52(b)(1) and (2), Article III, or Section 59, Article XVI, Texas Constitution," subject to specifIc exceptions. TEx. WATER CODE ANN. § 49.001(a)(l) (Vernon 2008).The Honorable Garnet F. Coleman

- Page 3 (GA-0793)

an electric power corporation to place lines "across" public roads, the Texas Supreme Court determined that the statute did not authorize the corporation to place lines "along" the roads. See Inc. Town of Hempstead v. GuljStates Utils. Co., 206 S.W.2d 227, 230 (Tex. 1947) (addressing predecessorofUtilities Code section 181.042). Anotherjudicial decision determinedthat a mining company, which was not chartered to construct and maintain telecommunications lines, could not place its privatetelephone lines overpublic highways. SeeAcme CementPlaster Co. 

### v. Am. Cement Plaster Co., 167 S.W. 183, 184-85 (Tex. Civ. App.-Amarillo 1914, no writ). The court statedthat the predecessor ofsection 181.082 authorized only telephone corporations to place telephone lines over public highways, and any other entity that did so should be treated as a trespasser. Id. at 184 (quoting Roaring Springs Town-site Co. v. Paducah Tel. Co., 164 S. W. 50, 53 (Tex. Civ. App.-Amarillo 1914), aff'd, 212 S.W.147 (Tex. 1919)). Thesejudicialdecisionsindicatethatan entity is not entitled to place its communication equipment in a county road right-of-way absent express statutoryauthority. Because school districts lack such express statutoryauthority, theWlSD is not entitled to access a county road right-of-way to install fiber-optic cable in the right-of-way. A school district is, however, not necessarily foreclosed from acquiring an easement in the countyright-of-way for thepurpose ofinstallingfiber optic cable. See TEx. Loc. GOV'T CODEANN. 

### § 272.00 1(a), (b)(5) (Vernon 2005).The Honorable Garnet F. Coleman

- Page 4 (GA-0793)



### SUMMARY Because no statute grants school districts the right to access anduse countyroadrights-of-waytoinstallfiber-optic cable, a school district is not entitled to use county road rights-of-way for that purpose.

DANIEL T. HODGE First Assistant Attorney General NANCY S. FULLER Chair, Opinion Committee Susan 1. Garrison Very truly yours,

Attorney

Assistant Attorney General, Opinion Committee