T%E+R'PTORNE%!GE~RAL
QFTEXAS
PRICE-DANIEL
ATTORNEY
GENERAL
January ‘29, 1948
Hdn. Fred C. Meridlth opinion ‘iio. v-489
county Attorney
Kaufnmn County Re: AuthoHty of the Commls-
Kaufman, Texas sloners’ Court to compel
an Electric Coopemtive
to remove Its poles from
a proposed right of way.
*
~~..I
Dear Mr. Deridlth:
Your reoent f!quest _for
__ an opinion of this De-
palrtmnt lb substantlallJ as f0110W~I
‘We have a problem in Precinct No. 4,
Kaufman County, that Is serious, the final
outcome of whioh ~111 be precedent for the
other precinote in thi’s county. It appears
to be one of interprets,tion of a. franchise
granted by the Commissioners1 Court to the
REA local, to wit, Kaufman County Electric
Cooperative, Inc.
“The State Highway Department has de-
signated certain farm to market roads and
highways in this County for Improvement
and widening, and.by agreement the County
is to furnish the right of way for such
widening purposes. The right of way has
been secured on the particular road in-
valved, same having been doneted by the
landowners along the route to the County.
!Phs Cooperative has Its poles set along
the existing right of way of the present
road, but such poles a.re on the new right
of way ground that has b.een acquired by
the County for the widening of said road.
“Under the franchise granted to the
Cooperative to use the roads of thla Coun-
ty for setting poles for its transmissiou
lines, the County reserved the right to
require the Cooperative to move Its poles
at its own expense should it ever become
-
Ron. Fred C. Meridith, page 2 (v-489)
necessary to move slid poles in order to
widen the roads, At least, this seemed
to be the intention expressed in the re-
servation in the franchise, s~ccording to
my interpretation.
“The Codssioner has notified the
Coopepatlvo, In rocopdance with provisions
of the franchitie, to’move Its po$ee f~ch
the new right of ~way. The Coo@erabive .bas
refused to do so, cls.iaing that’ the poles
are on private right of way easementa which
the Cooperative obtained from the landowners,
and not on public right of way, evensthough
the line runs along the publioroad.
The pertinent portionsof the franchise refer-
red to In your request reads as follows!
“On this the 10th day of January, A.DD.
1938, cs,me on to be hea,rd before the Com-
mIssionersi Court of Kaufman County, Texas,
the’appllcation of Kaufman County Electric
Cooperative Inc. for the right to use the
public roads, highwaysand other public
places of this ,county for the .purpose of
constructing, erecting, maintaining and
operating electric transmission and distri-
bution lines in It’s business of dlstrlbu-
ting electric light snd power, and It ap-
peering to the court that such use will
not interfere, obstruct or in anywise im-
paF~ the use of said public ros.ds, high-
ways or other public pla,ces:
“IT IS THRRJPORE ORDERED,ADJUDWD
ANDDECREED by the Commissioners1 Court
of this County that Kaufman County Elec-
trio Cooperative Inc. its successors and
asstgna, fs hereby authorized, empowered
and granted the perpetual right, privilege,
franchise and easement to construct, erect,
maintain and operate electric transmission
and distribution lines and all necessary
OP usue,l attachments and appurtenances
elong, across, over, unde?? and on the
streets, lanes, highweys, public roads,
bridges and other public places In this
county 0
Pen. Fred C. Meridith, ptige 3 (v-489)
“In grantiug to the raid Kaufman Coun-
ty Electric Cooperative Ino. a franchise to
use the roads of Kaufman County for setting
poles for its transnlisslon lines, the Coun-
ty reserves the right to permit the Cqmia-
sioner of each precinct to direct the place
where said poles shall be set in his respec-
such manner 8,s to be as little In the way
of said road as practical and shall be done
at no expense to the County.” (mphasls added
throughout this opinion)
Article 1435, V. C. S., ia aa follows:
“Gas, electric current and power ,cor-
porations shall have power to generate,
Pleke and manufacture, transport and sell
gae.~ electric current and power to lndi-
vldnals, the public and’muniolpalities for
light, heat, power end other purposes, and
to make reasonable charge& therefor; to
oonstruct, maintain and operate power plants
and substations end such machinery, appara-
tus, pipes, poles, wires, devioes and ar-
rangements as may be necessary to overate
such lines at and between different points
in this State; to ovn, hold and use saoh
lands, right of way, easements, franchises,
buildings and structures as may be neces-
sary for the purpose of such corporation.”
Article 1436, V. C, S., provides2
“Such corporation shall have the right
and power to~enter upon, condemn and appro-
prlate the lande, rfght of way, easements
and prop&Q of any person or corparation,
and shall have the right to ,erect its lines
over and across any public road, railroad,
railroad right of way, interurban railroad,
street railroad, oanal or stream in this
State, any street or alley of any incorpore-
ted oitg or town in this State with the eon-
sent and under the direction of the govern-
Hon. Fred C. Meridlth, page 4 (V-489)
ing body of such city OP town. Such lines
shell be constructed unon suitable Doles
in the most approved m&ner and maintsined
st P height a~bove the ground of et least
twenty-two feet; or pipes may be placed
under the ground, as the exigencies of the
case may require .‘I
Generally speaking, a Commissioners! Court may
exercise only those powers zpeclflcally designated by
the Constitution and the stfttutes, or those powers nec-
essarily implied.
You have stated that the original easement was
gra.nted by private landowners s.nd was not upon the es-
tablished Aght of way of said county, and that in wid-
ening said roed st the present time it becomes necezzery
to take in this particular territory upon which said
poles are located as additional right of way. Such be-
ing the caze it becomes apparent that the county would
be taking private property for public use and therefore
the question of who bears the expense of removing said
poles would turn upon the validity of the franchise
granted by the County of Kaufman to the Ke~ufmanCounty
Electric Cooperative.
In Opinion No. 0-6791-A, dated October 19,
1945, this Department stated:
“In oup Opinions Nos. O-1805, O-2442
and O-5726, this departaent held that by
virtue of the above Article No. 2351, that
the commissioners’ court has no euthority
to grant franchises to public utility com-
panies by Pea,aon of the fact that Article
1436, suppa, by direct legislative grant,
grants to gas, electric curpent and power
companies the Pight to erect its lines
over e.nd across any public roads outside
of Incorporated cities and towns.”
In the case of State ex rel City of Jasper v.
Gulf States Utilities Co., 189 9. W. (26) 693, the Su-
preme Court of Texas stated:
“The statutes of Texas have clear-
ly defined the powers, prescribed the
duties, and imposed the liabilities of
the commissioners’ court, the medium
Hon. Fred C. Meridith, page 5 (v-489)
tapoui& vhlch the dirfkwsntcountiesret,
and from thorn statutes mast oomo a11,the
authority reeted ln the oountlea. . . .i
?%!3,“2r:~: tr:;:YxLEt:
tlonal provision, ve find that no authority
is’ glveu the, aommlrsionerr~ oorurt to enter
Into such contracta as.the one sued on in
this case . . . .
*Ror does 8 cofmlsslonersS court hare
i.mplQd power to gpant such franchise . . .
“Since the coniiilssion~rs~‘court of
Jasper County vas without paver to grant
the rlghta claimed by respondent the pur-
ported f’ranchlse and extensions thereoS
are of no ioroe and effect aa against the
oltr’a procedure under its ordinance. . .*
In Opinion Ro. O-7026, dated.June 22, 1946, a
oopy of which Is enclosed, this Department stated2
“First, vo think there 18 no doubt but
that the county ray lavfully acquire &he
ueedod strip for the purposes of the Fapm-
to-Market road. (Cklcsgo R. I. & 0, Ry. Co.
V, Twrant Cou8ty Water Control Dietrlet,
,738. W, (2) 55; 16 Tex. Jtw. p. 595 Sec. 28,
and authorities there cited.) It may acwlre
that atrip in either of two iraysr - -
"(a) By condemnation, to vhlch proceed-
ing the RRA is a necessary party;
arc,
"b) By agreewnt oi parties upon any
conslderatlon valuable and mtlr-
faotory.
“In aaae o? oondwuation, oi~fmweo, Sor
constltutlonal ,reaa&i:-.the property of the
BRA may not be taken vlthbut adequate oollpeu-
satlon to be deterrined under the ord$wr&
rules of’.oondematlon prooeedinae.
natwe of thlngs the damagea tmovervd bJ
the REA vould Include the element of r68oY-
1% their pole8 and etjuipment thereiro8,
md,re-indtalling it elsevhere. So, also,
-- ._, _
Hon. Fred C. Merldith, page 6 (V-489)
in the event of purchase, the same ele-
ment would enter into the agreement. In
either event, the county will have notion-
ally paid for such removal 8,s a part of the
damegtfs upon condmenatlon OP purchase agree-
ment .
By virtue of tha foregoing it is the opinion
of this Department that If it baoomae aEcersary to re-
move the poles of the Kaufman County El.ectrlc Coopera-
tive Inc. to widen’ farm-to-market roads, the County
would be liable Por such expense. Sinae the County had
no authority to grant the franchise in question, the
provisiona therein are unenforaeable.
The delay in forwarding this o inion was oc-
casioned by the faot that this Departmen e was awaiti
the decision of the 8upreme Court of Texas on a seoo 3
motion for rehearing in the oaee of Herpstead v. Gulf
States Utilities Company, whloh vas overruletl on Decea-
ber 31, 1947, and as yet unreported, and which could
have effected the question presented in your factual
situation.
The CommLemloner8~ Court of Kaufman
County has no authority to compel the
Keufman County Eleatrlc Cooperative Inc.
to p8y the expense of remoVitIg its poles
fron a private easement on adjoining lands
to enable the County to widen a farn-to-
msrket road.
Youra very truly,
ATTORNEY
OEll’BRALOF TEXAS
BY
Burnell Waldrep
Assietant