ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Garnet F. Coleman 

Chair, Committee on County Affairs 

Texas House of Representatives 

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 and use 

a county's right-of-way to install fiber optic cable 

(RQ-0818-GA) 

You state that the Weslaco Independent School District (the "WlSD") is providing fiber optic 

connectivity to all campuses and admiuistrative offices within the district. I All WlSD campuses and 

offices within the City of Weslaco's boundaries are connected, but the campuses located in 

Weslaco's extraterritorial jurisdiction (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 not have authority to grant the school 

district such access.3 ld. You ask whether a school district has authority to access and use a county's 

right-of-way to install fiber-optic cable to serve all schools in the district. ld. The brief submitted 

by WISD maintains that the school district is entitled to access the county right-of-way for this 

purpose. See WlSD Brief at 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 of its road rights-of-way. See WlSD 

Brief at 2-3 (stating that if the district has access to the right-of-way, its only expenditure would be 

the one-time cost of installing the fiber-optic cable). We accordingly consider whether a school 

district is entitled to access the county road right-of-way to install fiber-optic cable. 

An independent school district possesses only those powers expressly conferred on it by law 

or implied as a necessary incident to the powers expressly given. See Mesquite lndep. Sch Dist. v. 

Gross, 67 S.W.2d 242,245 (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). In this request, "right-of-way" means the strip ofland on which a road 

is constructed. See generally Request Letter; Brief from W1SD at 3 (Oct. 9, 2009) (on file with the Opinion Committee) 

[hereinafter WISD Brief]. 
The Honorable Gamet F. Coleman - Page 2 (GA-0793) 

983,986 (Tex. Comm'nApp. 1932,judgm't adopted). The briefs submitted for this opinion request 

have not directed us to any Education Code provision expressly authorizing an independent school 

districtto access and use a county's right-of-way to install fiber-optic cable and we have found none. 

Nor do we find such authority implied as necessary to expressly granted powers. 

We next turn to statutes outside of the Education Code as a possible source of authority. A 

review of the statutes granting easements in public roads to certain entities indicates that such 

entitlement exists only when expressly authorized by the Legislature. See generally Hill Farm, Inc. 

v. Hill County, 436 S.W.2d 320, 323 (Tex. 1969) (stating that "responsible officials may, within the 

limits of the power vested in them by the Legislature, authorize the use of the [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 of the corporation along, 

on, or across a public road, a public street, or public water in a manner that does not inconvenience 

the public in the use of the road, street, or water." TEx. UTIL. CODE ANN. § 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 in the 

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 of public water"). Under Water Code chapter 49, 

"[a]ll districts5 or water supply corporations are given rights-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 of section 181.082 to use public roads and streets. See City of Brownwood v. 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 

200 I, pet. denied) (citing City of Brownwood for telephone company's right under Utilities Code 

section 181.082 to install underground fiber optic cable along a public roadway). There is no similar 

provision for school districts. 

The absence of an 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 

'See An Act Concerning Private Corporations, 14th Leg., R.S., ch. XCVII, § 51, 1874 Tex. Gen. Laws 120, 132 

(authorizing telegraph companies to place fIxtures "along, upon and across any of the public roads, streets, and waters 

of this State") (earliest predecessor of Utility Code section 181.082). 

'For purposes of this 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 

predecessor of Utilities Code section 181.042). Another judicial decision determined that a mining 

company, which was not chartered to construct and maintain telecommunications lines, could not 

place its private telephone lines over public highways. See Acme Cement Plaster Co. v. Am. Cement 

Plaster Co., 167 S.W. 183, 184-85 (Tex. Civ. App.-Amarillo 1914, no writ). The court stated that 

the predecessor of section 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 statutory authority. Because school districts lack such express statutory authority, the WlSD 

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 

county right-of-way for the purpose of installing fiber optic cable. See TEx. Loc. GOV'T CODE ANN. 

§ 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 

and use county road rights-of-way to install fiber-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