Mr. J W. Edgar                  Opinion No. W-1417
Commissioner of Education
Texas Education Agency          Re:   Whether the term "telegraph
Austin, Texas                         lines" as used In Texas
                                      Statutes (Artkle 1416, et
                                      seq.) may be construed to
                                      include televlslon lines,
                                      which transmit messages by
                                      wires acted on by electricity,
                                      and related questions.
Dear Mr. Edgar:
          Prom your letter requesting the opinion of this office
on the above-captioned matter, and from a file which you sub-
mitted in connection with your request, we have been appraised
of the following facts,
          An Independent school district (Galveaton) under a
lease agreement which expired on June 15, 1962, had installed
and was operating a two-way closed circuit television system
covering its school administration buildin and eight eletnen-
tary schools. Phonoscope, ylc. (Galveston7 , a Texas corpor-
atlon, developed and leased this system to the school district.
The facilities provided constitute's valuable Instructional
aid in the teaching and educational program of the district.
          This communication system, audio and video, allows
a two-way sound and picture between remote points. hans-
mission of picture and audio carriers is accomplished via a
coaxial cable. Communication may be on a private basis
between any two points, or on a mass basis between any number
of points.
          The necessary coaxial cable for this operation must
extend from the central studio (switchboard) to the various
distribution points; the cable being affixed to poles existing
or added, or laid underground. From an operational standpoint
it Is feasible to use cable and pole facilities of a telephone
company, where such company is willing to contract for such
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        Mr. J. W. Edgar, page 2   (WW-1417)


        use. Because contract terms with Southwestern Bell Telephone
        Company could not be reached, Phonoacope's only alternative
        has been to seek franchises from various cities as a public
        service or utility corporation to allow it to obtain necessary
        right-of-way, erection and maintenance of poles and cablea.
                  The school district desired to avail Itself of this
        valuable educational program aid in the future. Therefore,
        Its plan ia to request and urge the City Council to grant
        Phonoscope, Inc., a franchise under the terms of Article 1416,
        et seq., providing that this system is held to be within the
        coverage of these articles.
                  Your first question reads as follows:
                  "1. May the term 'telegraph lines' used in
                  Texas Statutes (Article 1416, et seq.) be
                  construed to Include television liner, which
                  transmit meeaages by wire8 acted on by elec-
                  tricity?"
        Relating
        . _      the above statement of facts to your first question,
        it become8 apparent that the effect of this opinion will be
        limited to closed circuit audio-video communications systems
        used solely for public education.
                  The atatutes involved are Articles 1416 through
        1432 Inclusive, Vernon's Civil Statuter. Some background
        Information concerning the judicial Interpretation of Articles
        1416 and 1417 is necessary in order to explain our answer
        more clearly.
                  Articles 1416 and 1417 were originally enacted in
        1874, and were carried forward In successive codiflcatlons,
        remaining substantially unchanged today. These articles
        read as follows:
                  "Article 1416. 1231, 698, 622 Public waya:     Use
                     Corporations created for the purpose of
                  constructing and maintaining magnetic tele-
                  graph lines, are authorized to set their
                  poles;piers, abutments, wirea and other
                  fixtures along, upon and across any of the
                  public roads, streets and waters of this
                  State, In such manner aa not to incommode
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            Mr. J. W. Edgar, page 3   (WW-1417)


                      the public in the use of such roads, streets,
                      and waters. ACtS 1874, p. 132;  G.L. Vol. 8,
                      p. 134."
                      "Article 1417. 1332, 699, 623 Right of Way
                         They may ah0  enter upon any lands owned
                      by private persona or by a corporation, in
                      fee or less eatate, for the purpose of making
                      preliminary surveys and examinations with
                      a view to the erection of any telegraph
                      line, and from time to time appropriate so
                      much of said lands as may be necessary to
                      erect such poles, piers, abutments, wires,
                      and other necessary fixturee for a magnetic
                      telegraph, and to make such changes of locc-
                      tlon of any part of said lines as may from
                      tima to time be deemed necessary, and shall
                      have a right of access to construct said
                      line, and when erected, from time to time
                      an may be required, to repair the same, and
                      shall have the right of eminent domain to
                      obtain the right of way and condemn lands
                      for the use of the corporation. Id."
            Telephone companies were not Included within the coverage of
            the statute for the simple reason that in 1874, telephones
            had been recently invented, and were not generally known; and
            it cannot be supposed that the leglalature had telephonea in
            mind whenit used the word "telegraph."
                      In 1900, the Supreme Court of Texas, In San Antonio
            & A.P.Ry. Co. v. Southwestern Telegraph and'!PelephoneCo.,
                . . 117 h ad squarely before It the question of whether
            5f,SW
            or not the iwo articles above quoted alao covered telephone
            companies. In declaring that the articles did apply to like
            proceedings by telephone companies, the court based its
            reasoning on its interpretation of subsequent legislation
            providing that a corporation could Incorporate for the purposes
            of constructing and operating "a telegraph and telephone line."
            In construing this legislation, the Court stated:
                         ?Fhe structure of this sentence Indicates
                      that the legislature understood that Itelegraph'
                      and 'telephone' were closely related in meaning,
                      and in fact so consistent with each other that
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        Mr. J. W. Edgar, page 4   (WW-1417)


                 the two words were used to express different
                 modeb'of accompllshihg'the bnb purpose',--
                 the transmission of messagea by means of
                 electricity.' (Emphasis added
                  In 1898, two years prior to the above cited case,
        a Texas Court of Civil Appeals had before it, in Gulf, C.
        & S.F.Ry. Co. v. Southwestern Telegraph & Telephone Co.,
        &5 S.W. 151 (no writ history), the same iseua of whether
        or not telephone companies were covered by what are now
        Articles 1416 and 1417. The Texas Court, citing foreign
        cases and authorities, and adopting the rules set out therein,
        stated:
                    "We are of the opinion that the decisions
                 cited are founded upon common sense and reason,
                 and that the term 'telegraph linea', used in
                 the statute, Includes 'telephone lines,' each
                 one being constructed for'thensame purpose,
                 namely the'transmission
                                        , of'messagts
                                                      by wires
                 acted &by   electricity."  (Emphasis added)
                  Looking behind the results of .theaetwo early Texas
        cases and the many later cases adopting the rule set out there-
        in,,it is clear that paramount in tha reasoning of the court
        was the enormous technological advancement In the field of
        cormnunicatlonscaused by the advent of the telephone. It
        should be pointed out that at the time of these first two
        Texas decisions, the technological development of the~tele-
        phone was at a much lower stage than ie the present day
        development of television. And yet, the Texas courts, as
        well as other state courts with similar questions confronting
        them, recognized the vaat potential baneflt to the general
        public that the telephone system offered.
                  Recognizing the benefits that our educational
        system derives from closed circuit television in the public
        schools, and adopting the reasoning of the Texas courts
        faced with the "telephone Issue," we anawer your first
        question in the affirmative. The basis bf this answer is
        an examination of the technology of the closed circuit system
        in question. The <acts clearly show that stripped of the
        label "television this communications system Is of the
        same nature as thk telephone system, but on a more limited
        scale and with pictures added; i.e., it is merely an
Mr. J. W. Edgar, page 5   (WW-1417)


advancement or improvement in the art of telegraphy and
telephony, with'the same purpose of'transmltting messages
by wires actea on by'electricity,.
          The fact that this system is limited to the school
system does not prevent it from being operated for the public
use and benefit. The San Antonio Court of Civil Appeals, in
West v. Whitehead, 238S.W. 976, (1921, error ref.), declared:
             "The question of whether or not in a given
          case the use is a public one depends upon the
          character, and not the extent, of such use."
Clearly, the character of the public school system falls within
the category of public usefulness ,and benefit. This category
would obvlouiilyextend tb any facilities ueed to Improve
educational methods and procedures.'
          Your second‘question reads aa follows:
          "2 . Is a company organized and incorporated
          for the purpose of supplying the public with
          two-way audio-video communicationa, one having
          the character of a public utility, with attend-
          ant rights of eminent domaln, and entitled to
          the granting of a franchise by the proper
          political subdivisions of the State for such
          purpose?"
          We assume that his question also refers to a company
which would provide the above described service8 to the public
schools. Our answer to your first question places this type
of company within the coverage of Article 1416, et seq.
These articles fully set out and explain the rights and
obligations of such companies; and, for this reason, it Is
unnecessary to answer this question.
          Your third question reads as followr:
          "3. Is a company organized and Incorporated
          to supply the public with community antenna
          television system, one having the character
          of a public utility, with attendant right of
          eminent domain and entitled to the granting
          of a franchise by the proper polltical subdiviaion
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            Mr. J. W. Edgar, page 6    (WW-1417)


                        of the State for such purpose?"
                      Your opinion request indicate8 that the service
            provided by this type of company would be for use primarily
            In homes, and for entertainment purposes. We, therefore,
            have no jurisdiction to answer this question.
                                        SUMMARY
                        A two-way audio-video communlcatlone
                        system for use In the public achoole is
                        merely an advancement or Improvement in
                        the art of telegraphy and telephony, with
                        the same purpose of transmitting messages
                        by wires acted on by electricity; and
                        corporations organized to operate .#uch
                        a ayatem come within the coverage of
                        Article 1416, et seq.
                                               Yours v.erytIQly,
                                               WILL WILSON
                                               Attorney General of Texaa




            JGZ:ms
            APPROVED:
            OPIRION COMMITTEE:
            w. v. Geppert, Chairman
            Morgan Neabitt
            Sam Stone
            Elmer Mc'rey
            Henry Brajwell
            REVIEWEDFOR THEATTORNEYGENERAL
            BY: Leonard PassmorO
