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Hon. E.H. Thornton. Jr.
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.~~_-T: ~~ ~.
Chaarman, Texas Hlihway Department .~~~
Austin, Texas
:j ; : “.,
~Oplnion No,. ,*-45 .~ .~
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:.,.~ .’ ~~’’ Fe; Legality of the uses of State, mon$es,
‘.., .~., ~~“~ by the Highway Con&salon for re-’
imbureement for relocation of n’ti~l-
iti& occupying Highway rights of
way by virtue of statutory autho-
rlty when Mlocatlon is neceesary due
.~ ‘to Highway Improvement under the Fed-
eral-Aid Highway Act of 1956~. .
Dear Sir: : i. .., :.
;..
: ~‘i& following question was presented. In ~your’recent lettert
“~Whereufllltles have’ located on highway rights’
of way by virtue of statutory authorities, and such.
utllltles do not hold a prior property right, we
are not quibe sure of our position in respect to ” :
particlpatlng in the cost of utility relocationa- ‘,
which ,are made necessary by public, safety and fu-
ture hlghway construction work. Please advise if
in view of the State Constitution and governing
State laws, and al.80 In view of the above mentioned
Federal leglalaU.on and governing rules’ and regu-.
latlone, the State Highway Commission has authority ,.
to use State and Federal highway funds to effect
such ,utlll.ty adjustments or relocatiqns .I”
The
-,__pertinent portion of the Federal Al.d Highway Act of
1956 ie as followe:
.“Sec,. III. REZOCATIONOF UTILITY FACTLITIES. :
(a) AvailabIlIty of Federal Funds for Relm-
bursement to State.
3ubject to the. condition8 contained in this section, when-
ever a State ahall pay for the coot of relocation of utility fa.Cil.i-
tlee neceasttated by the construction of a project on the Federal-aid
primary or secondary syatema or on the Interstate System, including
extensions thereof within urban areaa, Federal funds may be used to
reimburoe the State for such qost,in the same proportion as Federal
funds are expended on the project; Provided, that Fede+ funds
--- shall
not be apportIoned to the States un%??-%$s sectmenie --1- p?ymeuf-
,
Hon. E.H. Thornton, Jr., page 2 (WW-45) .
to the utiI.i.ty violates the law of the State or violates a legal
contract betwzzt+nthe utility and the State.” (Emphasis added.)
Since Federal Ald Highway Act provides that federal fuhdr
~%hall not be apportioned to etatee for the relocation of utilities
vhere such payment vlolatee the law of the State,” the question hero
resolves int:, whether or not the Constitution or the 1~1s of Texas
prohibit payments of State money for the relocation of utilities
where the utll~tg occupies a highway rlght’of way by virtue of stat-
utory authority.
Inasmuch as Article III, Section 51 of the Texas Conetitu-
tion prohibits the grant of public money to any lndlvldu,al, aasocla-
tion or cor?oratlon, It is necesearg to examine the ntatutee under
which the u%llltles have been permitted to locate on public highway
rights of way to detennlne the nature of the right to such occupation
of the right of way.
Telegraph &d Telephone Corporations -
Article 1415, V.A.C.S., provides:
“Corporatlonrt created for the I:ur;:#osr! of constrmc-
ting and maintaining magnetic tclegyaph lines, are
authorized to set their poles , ;;:ler:j, abutmc$nte, wires
and other flxturc.:s along, upon and acro::s any cf the
public roads, streets and waters c>f tLia State, In
such manner as not to Incommode thti pub1l.c In the use
of such roa.ds, atreets and wat::,rs.” (3!hir atetute has
been interpreted to include teic:&one coLl!;pantea. Sh
and 1I.P. Ry. Co. v. S.W. Tel. ac,d 5~1. Cg., 93 Tex.
13, S.W. 11 , City of Brosnvsod v. Br?wn Tele-
graph & Telephone Co., 1m.W. 709).
The authorization for location l.s limited by Article 1422,
V.A.C.S., which gives to incorporated cities, towns and villages the
power to speclQ the location and pass ou any alteratl.on o? faclll-
ties located wlthln their limits.
._ It should be observed that the permission to use the pub-
lic tights of way Is subject to the provls? that such use should be
: In a manner “a8 not to Incommode the public in the uee OS such roads,
streets and waters.” While no Texas Court haa construed this lan-
gucc;e, the courta of other jurisdiction have.unlformly reasoned:
8lr;ce the use of the highways is primarily designed for the traveling
public; and since the location of utility facilities therein la aec-
ondazq and subordinate, and eatltlee the utility to DO specific~gosi-
tion therein, and since rights In the highways are subject to the
exercise of the police power of the State and its agencies; then,
Hon. E.H. Thornton, Jr., page 3, (w-45)
even in the absence Of a specific statutory requirement, the util-
‘ities are required to bear the cost of any relocation necessary
for the public welfare. (Emphasis added). SouTe;; Bell Te;;phone &
Telegraph v. Commonwealth, 266 S.W. 2d 308 (K . . APP. 1 4)
elephone & Telegraph v. Florida ex rel. Erwin, +5 So.
Thk case of Southern Bell Telephone and Telegraph v. Comnion- --
wealth, supra, in cons%lng a Kentucky statute similar to Article
wand a Kentucky constitutional proViSion similar to Section 51 df
.Artlcle III, held that the irrevocable, perpetual franchise granted
to a telephone Company to maintain poles and lines upon all highways
in the Commonwealth In such manner as to afford no obstruction of
public use contemplated +.hat the telephone company might thereafter
be obligated to relocate its poles and lines at Its own expense. The _
Court construed the term in the statute “so as not to obstruct” as
relating to obstruction of ,lmprovements, construction and reconstruc-.
tion of highways as well asp to obstruction of travel upon completed
highways.
The case further held that aside from the express provision
In the statute which requires a utility to use highways in such a man;’
ner “so as to not to obstruct” the use of the highways, the permission
given In the statute to the telephone company to construct Its lines
la the rights of way of public highways contained an “implied condl-
tlon that appellant (at Its own expense) may be required to remove
and relocate Its facilities when such removal and relocation are In
the interest of public convenience and safety.”
‘It Is, therefore, clear that telephone and telegraph corpo-
rations can be required to bear the expense of the relocation of their
poles and other fixtures located within public rights of way under
the permission given in Article 1416 when highway improvement diatates
such relocation.
Water Supply Corporations
Articles 1433 and 1433a, ‘1434a, V.A.C.S., provide that water
corporations can use the rights of way of public highways and the
streets of titles, towns, and villages subject to regulation and super-
vision by the appropriate governmental body. Articles 1433 and 1433a,
. . _
Hon. E.H. Thornton, Jr., page 4, (WW-45)
now specifically provide that the Highway Commission (or Commissioners
Court in the case of a county road) may require a water corporation,
after notice, to relocate its lines to permit the widening or changing
of traffic’lanes of the highway or road at its own expense. Before
’ 1949, these artiolea did not oontain speoific language that relocation
oould be required at the utlllties’ expense, but the statutes did pro-
olde for regulation and supervision In the placing of the facilities
by the pertinent governmental authority.
tiewage Service Corporations
A&ale 1434a gives to sewer service oorporations the right
to locate In the rights of way of public hlghwaye under the supervision
of the Highway Commission.
Gas. Electric Current and Power Corporations
Gas, electric current and power corporations are permitted
by Artlc1.e 1436 to erect lines over and across any public road or a
street of an lncorpora.ted city or town with the consent and under the
direction of the governing body of such city or town.
Artlole 1436(a) gives to Eleotric Cooperative Corporations
end other corporations engaged in the generation, transmission, or
distribution of electric energy, the power to use public highways and
streets for the locatfon of Its facilities, subject to. the consent ‘and
direction of incorporated cities and towns, as to such use within their
limits and provided that the Highway Commission (or Commissioners
Court in the case of a county road) can require the utility to re-
locate Its facilities at Its own expense should highway Improvement
dictate.
Gas utilltles are given the right to the use of public hfgh-
ways and streets by Article 1436(b) in the same manner and with same
restrictions and provisos as aregiven to e1ectrl.c utilities under
Article 1436(a).
As in the case of Telephone and Telegraph Corporations, it
is.-:again apparent that other utilities occupyhng’ public rights of way
(the Water Supply Corporations , the Sewage Service Corporations, and
the Gas, Electric Current and Power Corporations) must bear, pe cost
of relocation of their facilitieswhen relocation is made ngceesary
by hIghway or street improvement or reconstruction made in the inter-
est of the convenience or safety of the traveling public. Such lm-
provement and reconstruction Is withln the State’s police powder, and.
the coot must be borne by the utility, regardless of whether or not
.
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,
lipn. E. H. Thornton, Jr., Page 5 (WW-45)
the statutes contain such express language that the utility must re-
locate at its own expense a8 that found in Articles l433, 1433a,
veref ore, since utilities can be required to’bear the cost
of relo&tlon made necessary by highway construction, reconstruction,
or Improvement, Section 51 of Article III of the Texas Constitution
would prohibit the use of State Highway funds (and Federal highway
funds) to effect such relocations.
I I
SUMMARY
--
Section 51 of Article. III of the’ Texas Constitution
prohibits the State Highway Commission from using State
and Federal highway funds to effect the relocations of
util$.ties located on highway rights of way by virtue
of statutory authority when highway construction and
Improvement under the Federal Aid Highway Act of:1956
necessitate such utility relocation.
Yours very truly,
,’WILL WILSON
Attorn’ey General
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WZ;bttbk
APPROVED
t
OPINIONCOMMITTEE
H, Grady Chandler t
Chairman