September 19, 1949
Hon. Enos T. Jones opinion No. v-907.
County Attorney
Floyd County Re: The authority of the
Floydada, Texas Commisslonsrs~ Court
to prevent electric
eompanles fromusing
county right-of-way
for the erection of
Dear Sir: poles.
Reference is made to your recent request which
reeds, in pert, es follows:
"The Commissioners Court of Floyd Coun-
ty has requested an opinion es to their au-
thority to pronibit the use of certain (or
all If necessary, in their opinion) county
road right-of-ways In such oountg,-by an
electric energy distributing company.
Qoes this article (ll+36a) give the
Commissioners Court of Floyd County, Tex-
es the authority to prevent or prohibit
an electrlo energy distributing company
from using the right-of-Way of the coun-
ty roads of such county, ~forthe purpose
of erecting poles to be wed to transfer
and distribute electric energy?'
The Sucreme Court of Texas In the case of
State, ex rel City of Jasper v.~Gulf States UtilLties
CO ll+f+
vex. 184 109 S.W.2d 693 (1945) held that the
Coi%ssioners* Co&t was without power to grant to a
public utility company the right to use the county
roads to carry on sn electrical utility business. How-
ever, the Slst Legislature passed House Bill 393 (Art.
1436e) rblch provides, in part, es follows:
"Section 1. Corporations organized
under-the Electric ~Cooperetive Corporation
Act of this State, and all other oorpora-
tlons~(including River Authorities creet-
ed by the Legislature of this State) engag-
Eo8. Nuos T. Jones, page 2 (V-907)
ed In the generation,tranemlsrlomand/or
the diatrlbutlonof eleatrlc eneqg io -0
as and whose opo.ratlom are subjeot to tin
Judicial and Legielativeproaeesee o? this
zxistlng lines located on such highwv
and coanty roada; 8nd to em&i, raintain
and operate lines over, acrotm aad along
the etreetll,alley and other publle pm-
perty la any incorporatedcity or twn In
this State, with the eonment and under th6
direetloa of the governing body o? such
e1t.yor town. Except an medlfled or champ
ed by ordina8ee or regtuatwz4 I8 incorporat-
ed aitlea and tmma, all line@ for the trms-
alesion and dletrlbutlonor electric enqr
whether along hlgWafs or eleewhere, shal!?
be eenetruoted,opezyted and maintalaea, M
to olearmoee; in aacordeme with the la-
tlonal gleetrlcal Sarety Code, a8 pubph-
ed In BIarch,1948, by the Natlomal~&u
of Sta8dards, Handbook 30, provided that
lines along hlghuaye and county road8 .shall
be eingle pole conetmctlon, end pmieted
that at spryplace where a tranmmlaelanllrm
crosses a hlghuay es reed it shall be a%
least twenty-twos(I?21feet
face or the trariio lane.
uay or oounty road, that is,~the Highway
Caraissio8 or tpk:Gmiasle8ers Ctmrt, a0
the ease raj be, may require aurg W&A CO+
poratifm, at.its au8 tixpeaee,to aw-locrate
Ku08 T. Jones, page 3 (V-907)
its lines on a State highway or county road
outside the limits or an Incorporatedcity
or town, 80 as to parrit the widenlag or t&m
rlght-0r-way, changw 0r trarric laiues,ir-
proverent or the road bed, or iplprovement or
drainage ditches located on such rlght-of-
way by giving thlrty (30) days urltten no-
tice to such corporationand specifylag the
line or lines to be moved, and lndicat.Img t
the place on the new right-or-waywhere
such line or lines may be placed, In the
event a State highway or county road on
which lines have been built passes through
or Into an unincorporatedcity or tom,
which thereafterbecomes an Incorporated
city or town, the corporationowning such
lines ahall continue to have the right to
build, maintain and operate its lines alemg,
across, upon end over the roaQs end streets
wlthin the corporate lirlts~of such city or
tom ror a period or ten (10) years frum
and after the date of such Incorporation,
but thereatter only with the consent of the
governing body or suoh city or town, but
this provialon shall not be construed as
prohlbltfng such city or town from levying
taxes and such special charges for the use
of the streets as are authorizedby Artl-
cle 7060, Revised Statutes or the State or
Texas; and the governing body of swh elty
or town may require any such corporation,
at Its am expense, to re-locate its poles
and lines so as to permit the WidenIag or
straighteningof streets b giving to
such corporationthirty 1307 days notlee
end speoifylng the new location for such
p&lea and lines along the right-of-wayof '
such street or streets." (Baphaslsadded)
In this regard see also IncorporatedTown or
Hemstead v. Gull States Utilities Co., 146 Tex, 250,
27 (1947) and Kosloslrsv. Texas Electric
213 S,W.id 853 (Tex~ClvApp,1948, errer
Under the plain provisions of House Bill 393,
the Commlssloners~Court may designate the place along
the right-of-waywhere such lines shall be constructed,
upon.being notified by the oorporatfonof Its proposal
I’
Hon. Enos T. Jones, Page 4 (v-907)
to build e line along the right-of-way of a county road
outside the limits of an Incorporated city or town. How-
ever, nowhere in the Act,does It provide that the Com-
missioners' Court may prohibit such a company from using
rights-of-nays of county roads outside the corporate
limits ofa city or town for th8 purpos,eof erecting
poles to be used in the distribution of electric energy.
On the contrary, such corporations are expressly grant-
ed the right to use the rights-of-ways of public roads
outside the corporate limits of cities end towns for
distributing electric energy. In view of the foregoing,
it Is our opinion that the CommissionersI Court of Floyd
County may not prohibit en electric energy distributing
company from using such rights-of-rays of county roads
for auoh purposes
By House Bill 393 (Art. 1436a), the Slrt
Legislature granted dloti3butors of electric
energy the right to plaol,line8 end pole8
along public highways and roada. Therefore,
the Commlssionerst Court of Floyd County oan-
not prohibit such use of county road8 but
may designate the portioh of the rlght-of-
way to be 80 used.
Yours very truly,
ATTORNBY GENEWL OF TEXAS
BA:mu By &“-=&
Bruoo Allen AMC
A8818taxtt