Untitled Texas Attorney General Opinion

,’ A The Attorney General of Texas wr 6. 1986 JIM MAlTOX Attorney General Supreme Court Building Honorable James M. Kuboviak Opinion No. .X+489 P. 0. Box 12546 Austin. TX. 76711. 2546 Brazes County Attorney 512/475-2501 Courthouse Re: Liability of a counry for Telex 9101674-1367 Bryan, Texas 77853 burled cable damaged during Telecopier 51214750288 widening of a road 714 Jackson. Suite 700 Dear Mr. Kuboviak: Dallas. TX. 752024506 2141742.6944 You ask the fo'llowingquestion: What is the liability of a county with respect to 4624 Alberta Ave.:Suite 160 El Paso, TX. 7!3905-2793 buried mble in a county right-of-way that is 9151533.3464 damaged t'y the county during the widening of a public ro.ad? 21 Texas. Suite 7W The question was raised by the fact that a county comissioaers ,s,on, TX. 77002-3111 court, in 1979, acoptod at a meeting of the court what purports to be J12235666 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 606Broadway,Suite 312 might occur to any existing lines in the right-cf-way." A ccunty wcrk Lubbock. TX. 79401-3479 crew has damaged the telephone company's buried cables during road 8081747.5236 widening construction. The county suggests that the "agreement" that it adopted in 1979 is binding on the telaphone company. 4309 N. Tenth, Suite 6 McAllen. TX. 76501-1665 The liabilisf of a county for damage caused by the countp Cc 5 12/662-4547 cable buried in its right-of-way involves factual detemimtions which this office is not authorized to decide. See Attorusy General @pInion 200 Main Plaza, Suite 400 JM-408 (1985). Also, we cannot decide the'faccual issues necessary fo San Antonio. TX. 762052797 determine the existence of a contractual agreement, such as consi- 51212254191 deration 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 An Equal Opportunity/ Aftirmative Action Employer 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 well- established recovery of damages based on the theory of negligence, the Texas courts have allowed recovery on the basis of the liability under article I. sectiott17 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-of- way 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 -d- only to the restriction that ic must ba done in 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.~Southwrstrrn Beil Telephone Company, 482 S.W.2d 352, 355,357 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 cclnferredeither expressly or by zrcessary implication by the constitution and statutes of this state. See Tex. Const. art. V, 518; Canales V. Laughlin, 214 S.W.2d 451. 4r(Tex. 1948). 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