Honorable Wm. Yelderman
Assistant County Attorney
Travis County
Aus tin, Texas

Dear Sir:                   Opinion No. O-5726
                            Re: Is the franchise or easement
                                 granted by the Commissioners
                                 Court ofTravis County to the
                                 Texas Power and Light Company
                                 subject to State and County
                                 ad valorem, road and school
                                 taxes8 And related,;questions.
You request the opinion of this department upon four questions
propounded in your letter of Nov. 30, 1943, rhioh for oon-
venienoe we quote a8 follows:
     "In 1926 the Commissioners Court of Travis County, Texas,
     granted to Texas Power and Light Company a osrtain
     frenohise wbioh is hereinafter fully explained. I am
     requested to ,obtainan opinion from you in referenoe to
     the questions hereinafter stated.
     "I am enclosing a oopy of the franchise mentioned, and am
     requested by the Tax Collector-Asaessor of Travis County
     to ask and the following questionsr

     "(11 Is or is not this franohise subject to'Stat and
     County Advalorem, road and sohool tax, or other taxes
     levied,aooording to'lax?

     “(2)  Then, if this not be,oalled a franohise, and is
     oalled an easement, then would that easement be subjeot
     to taxes, as other property in Travis County, or in any
     other oounty in Texas, where the same situation existed?
     s(3) Did the Commissioners Court of that date have a
     right to grant these oonoessions without pay or con-
     sideration of any kind?

     "(4) In 1923 the main State highways were taken over by
     the Texas Highway Department. Do they have a right to
     grant franohises or easements rlthout pay, or for any
     oonsiderationt"
                                        .-




Honorable Wm. Yelderman, page 2, O-5726


We shall proceed to answer your   third question first, namely,
"Did the Commissioners Court of   that date have a right to
grant these concessions without   pay or consideration of any
kind?"; this for the reason our   answer to this question will
aid in clarifying our answer to   the remaining questions one
and two.
The Texas Power and Light Company is manifestly suoh a corpor-
ation as is referred to in Article 1436, Q.B.C.S., reading as
followst
    "Such corporation shall have the right and power to enter
    upon, condemn and appropriate the lands, right of way,
    easements and property of any person or corporation, and
    shall have the right to erect its lines over and across
    any public road, railroad, railroad right of way,
    interurban railroad, street railroad, canal or stream in
    this State, any street or alley of any incorporated city
    or town in this State with the consent and under the
    direction of the governing body of such city or town.
    Suoh lines shall be constructed upon suitable poles in
    the most appaoved manner and maintained at a height above
    the ground of at least twenty-two feet; or pipes may be
    placed under the ground, as the exigencies of the case
    may require."
We may assume that the Commissioners Court of Travis County in
granting what is termed:
    "      the right, lioense, privilege and franchise is
    hirib; granted to TEXAS POWER & LIGHT COMPANY, its
    successors and assigns, for a term of fifty (50) years
    from the 23rd day of September, 1926, to construct, main-
    tain and operate suitable poles or towers along, over and
    across the public roads and highways, of said county for
    the purpose of supporting its transmission lines for
    electricity for light, heat, power, and other purposes;"
    was laboring under the erroneous impression that Article
    1436, supra, conferred some right or authority upon it
    in the premises. Suoh is not the case. This article
    merely oonfers a "privilege" or a sfranchiset',if we ohoose
    to call it that, to the oorporations referred to therein
    by direct legislative action. The Galveston Court of Civil
    Appeals, in the case of Houston Light & Power CO. V-
    Fleming, 126 S.W. (2d) 407, reversed on other grounds,
    in construing this article, said:
              . it was just a privilege or ennchise granted
         d;r;ct by~the State, through the Legislature by
         means of that general enactment, to any such
         corporation as satisfactorily met it terms and
         furnished the Utilities for the public benefit its
         terms dealt with; . . ."
Honorable R?n.Yelderman, page 3, O-5726


We do not deem it necessary to discuss at length the
limitations upon the power and jurisdiction of the commissioners
court. This has been ably done in opinions O-1805 and O-2442,
heretofore rendered by this department, dopies of which are
herewith enclosed for your information.
It will be observed that certain portions of these opinions are
directly applicable here, and we reaffirm the conclusion there-
in expressed. To express our views ooncretelg, the Commission-
ers Court of Travis County was without authority to add to or
subtract from,the rights conferred by Article 1436, supra.
The action of the Commissioners Court of Travis County in the
matter of granting the privilege or franchise embodied in the
order submitted by you is null and void, of no force and effect;
it conferred no right or privilege, and hence bestowed no
benefit upon the corporation that did not preexist by virtue of
the statute itself, regardless of whether a consideration was
paid or not. Your third question is, therefore, snswered in
the negative.
We deem it proper to say that this opinion is not to be con-
strued as holding that the Texas Light and Power Company is
not subject to the provisions of Article 7162, Subsections
42 and 43 thereof, which requires taxpayers to list: (42)
every franchise, the description and value thereof; (43)
value of all other property not enumerated above, (referring to
the preceding quoted subsections) nor to Article 7084, Sub-
division (d) therof, imposing a franchise tax upon all public
utility corporations. We merely hold that by whatever name
the instrument submitted by you is called, whether a "franchise"
or "easement", it does not constitute theb asis for the
assessment and collection of taxes of any character upon the
part of the State and County, or any other taxing subdivision
thereof.
The generality of your question number four makes it inad-
visable for us to attempt an answer without more definite
information. If you will give us the kind and character of
franchise or easement you have in mind and to whom it is or
has been granted, if such is the case, we shall be glad to
give further oonsideration to it.
                                  Yours very truly
                              ATTORNN GENERAL OF TEXAS
                              s/ L. P. Lollar
APPROVED DEC. 9, 1943         BY
s/ Gerald C. Bann                          L. P. Lollar
ATTORBEY GEWRAL OF TEXAS                      Assistsnt

LPL:AMM/cg
EgCLOSURES
Approved Opinion Committee, By BWB, Chairman
