                       June 21, 1989




Mr. Charles Brack          Opinion No. JM-1062
Chambers County Attorney
Mills, Shirley, Eckel      Re: Applicability to governmental
  & Bassett                bodies of V.T.C.S. article 1436c,
P. 0. Box 1943             relating to the safety of indi-
Galveston, Texas 77553     viduals who work in proximity   to
                           high voltage electrical      lines
                           (RQ-1718)

Dear Mr. Brack:

     Article 1436c, V.T.C.S.,   provides that "no person,
firm, corporation,  or association" shall, without     having
taken specified safety precautions,     perform  activities,
erect structures, or handle or store various items within   a
stated proximity to high voltage overhead lines, or operate
certain equipment.  Section 7 of the article provides:

           (a) Every person,   firm, corporation, or
        association and every agent or employee   of
        such person, firm, corporation, or associa-
        tion who violates  any of the provisions  of
        this Act shall be fined not less than $100,
        nor more than $1,000 or confined in jail for
        not more than one year or both.

            (b) If a violation of this Act results in
        physical or electrical contact with any high
        voltage overhead line, the person,      firm,
        corporation,  or association violating    the
        provisions of this Act shall be liable to the
        owner or operator of such high voltage   line
        for all damage to such facilities and for all
        liability incurred by such owner or operator
        as a result of any such contact..

We understand you to ask whether article 1436~ is applicable
to counties so as to operate as a waiver of the county's
governmental immunity for purposes of county liability under
section 7.   We conclude that a county is not a "person,
firm, corporation,  or association"  within the meaning   of




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Mr. Charles Brack - Page 2 (JM-1062)




article 1436~ and thus that a county is not       subject   to
liability under the provisions of that article.

     The Texas Supreme Court in State v. Central Power &
Liaht Co., 161 S.W.2d 766, 767    (Tex. 1942) concluded   that
the language   in the former antitrust     statute, V.T.C.S.
article 7426, defining a ,,trust,, as I1   a combination    of
capital, skill or acts by two or more persons,          firms,
corporations or associations   of persons, or either two or
more of them,, for specified purposes,      did not include
municipal corporations.   Noting that the statute was penal
in nature, the court opined that ,,if the Legislature      had
intended to visit such severe penalties ,on municipalities,
it would have used more apt language to describe them.,, Id.
at 768.1 See also Citv of Houston v. Renault, Inc., 431
S.W.2d 322 (Tex. 1968) ("statute making it unlawful for any
person, firm or private corporation to divert natural     flow
of surface waters or to impound same in such manner as to
damage property   of another does not apply to municipal
corporationsn); 0Cit   of co us
Servicina Corn     368 S.W.2d 640 (Tex. Civ. App. - San
Antonio 1963. w;it ref'd n.r.e.1   fItifthe term 'nerson' is
used to designate the party whose property is intended to be
protected, the term includes all public or private    corpora-
tions; if it identifies the party against whom a violation
is charged, it is 'strictly construed',,). But see Gates v.
Citv of Dallas, 704 S.W.Zd 737      (Tex. 1986)    (discerning
legislative intent to make provision     for attorneys fees
after delayed payment of valid claim against    "corporation,,
based on written contract applicable to municipal     corpora-
tions).

     A provision of the Code Construction Act, Government
Code section 311.005, provides that the word "person"
includes "government or governmental subdivision or agency,,
unless the context requires a different    definition.    The
Code Construction  Act, however, does                 to the
construction  of civil statutes.     Gov'Eo~:P1y   9 311.002.
Section 312.011 of the Government Code applies, per section



     1. Article 7426 was repealed in 1967 by the act which
adopted the Business and Commerce Code.      Acts 1967, 60th
Leg., ch. 785, at 2343. See now Bus. & Corn. Code 95 15.01
et sea. As amended in 1983, sections     15.03 and 15.10 now
specifically define "person,, as including municipal corpora-
tions. Acts 1983, 68th Leg., ch. 519, § 1, at 3010.




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    Mr. Charles Brack - Page 3   (JM-1062)
1




    312.001, to the construction     of civil statutes   such as
    article 1436~.    Section 312.011 provides simply that the
    word "person,, in such statutes "includes a corporation.,,

         Notably, a county's status as a political entity has
    been characterized by the courts as being, in contrast to
    that of a municipal  corporation, that of a "quasi-corpora-
    tion." See. e.a     City of Sherman v. Shobe, 58 S.W.
    (Tex. 1900); He&l   v. Wichita Co., 19 S.W. 562 (Tex. lS9:;9
    We do not think that the legislature would have intended to
    include counties as being subject to liability under article
    1436~ by use of the term %orporation.,,

         Nor do we think that the provisions of section 2 of
    article 1436~ indicate that the legislature      intended the
    article to apply to counties.     Section 2 provides that the
    statute does not apply to the ,,construction, reconstruction,
    operation, or maintenance,, of certain electrical or communi-
    cation circuits, and associated systems, by an "authorized
    person." Section 1(3)(B) defines "authorized person,, to
    include "employees of . . . state and county or municipal
    agencies having authorized circuit construction on the poles
    or the structures of,, a power company, cooperative, city, or
    transportation or communication system.      We do not think
    that this exemption of certain county employees implies that
    counties, even though not specifically exempted, are liable
    under the statute. On its face the article indicates that
    directives   as to safety      measures and provisions      for
    liability apply only to a ,lperson, firm, corporation,       or
    association.,,  We  discern no   legislative intent  that   the
    language   "person,   firm, corporation,     or   association,,
    includes counties.    We do not think that a county       is a
    "person, firm, corporation,      or association,, within    the
    meaning of the article 1436~.

         Please note, however, that we do not intend to say that
    counties may not, on the appropriate facts, be held liable
    for damages  arising from county activities   in connection
    with high voltage electric lines. The Texas Tort Claims Act
    specifically  defines   "governmental units,' to     include
    counties. Civ. Prac. & Rem. Code 5 101.001(2)(B).    Section
    101.021 provides that a governmental unit is liable for:

               (1) property damage, personal injury, and
            death proximately caused by the wrongful  act
            or omission or the negligence of an employee
            acting within his scope of employment if:




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Mr. Charles Brack - Page 4    (JM-1062)




               (A) the property    damage,   personal
           injury, or death arises from the operation
           or use of a motor-driven      vehicle   or
           motor-driven equipment; and

              (B) the employee would be personally
           liable to the claimant according to Texas
           law; and

            (2) personal injury and death so caused
        by a condition or use of tangible personal or
        real property if the governmental unit would,
        were it a private person, be liable to the
        claimant according to Texas law.

     Whether any particular county activities giving rise to
damages  fall within the scope of the provisions of the Tort
Claims Act would ultimately, of course, involve questions of
fact which we in the opinion process cannot resolve.

                       SUMMARY

           A county is not a "person, firm, corpora-
        tion, or association"  within the meaning  of
        V.T.C.S.  article 1436~ and is thus       not
        subject to liability under the provisions  of
        section 7 of that article.




                                   J AQtx
                                      Very truly you



                                      JIM
                                           A
                                              MATTOX
                                                       ,



                                                              .
                                      Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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