                          AUSTIN.  -rrcXAU 7es711
CXAWYOB1ID c. WA'WIVS
  A%-rOYNgY a-RII.            November 17, 1969



      Dr. George J. Beto, Director            Opinion No. M- 508
      Department of Corrections
      Huntsville, Texas  77340                Re:     Whether the Texas
                                                    . Board of Corrections
                                                      must collect from
                                                      public utilities a
                                                      fair consideration
                                                      for placing public
                                                      utility lines on or
                                                      across existing public
                                                      roadways traversing
                                                      State land under the
                                                      control of the Depart-
                                                      ment of Corrections,
      Dear Dr. Beto:                                  and related question.

           In your request for opinion of this office, you present
      the following questions:

            1)   Is the Texas Board of Corrections obligated
                 to collect and must public utilities pay a
                 fair and adequate consideration for placing
                 public utility lines in, on, along, over or
                 across existing public roadways which trav-
                 erse State-owned land which is under the
                 custody and control of the Texas Department
                 of Corrections?

            2)   May the Texas Board of Corrections, in the
                 grant of a public roadway easement, limit
                 the use of such easement to roadway purposes
                 only and reserve the exclusive right to grant
                 public utility easements in, on, along, over
                 or across such roadway easement?

            Section 1 of Article 6203d, Vernon's Civil Statutes,
       authorizes the Texas Board of Corrections, with consent of
       the Governor and Attorney General, to:
            n . . . grant permanent and temporary right-of-way
            easements for public highways, roads and streets,
            and ditches, and for electric lines and pipelines
            consisting of wires, pipes, poles and other neces-
            sary equipment for the transmission or conveyance




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    Dr. George J. Beto, Page 2 (M- 508 1



          of, or distribution of, water, electricity, gas,
          oil or other similar substances or commodities,
          . . . along, across and over any and all lands
          now owned by the State of Texas as a part of the
          Penitentiary System, . . .”

         Section 2 of the same Article provides that '. . . such
    grants and leases shall be executed only upon a fair and ade-
    quate consideration. . . .'I

         However, public utilities - including telephone, telegraph,
    water, gas and electric corporations - are given express legis-
    lative authority by virtue of such Articles as 1416, 1433, 1436a
    and 1436b, Vernon's Civil Statutes, to lay their lines along, over
    and across public streets and highways within the State.

         The Court in Jones v. Carter,-101   S.W. 514 (Tex.Civ.App.
    1907, error ref.) stated at page 516:
          11. . . Light, sewers, gas, and waterworks are
          among the common necessities of modern cities,
          and it is a matter  of,common knowledge that such
          plants cannot be constructed and operated without
          running the lines and mains along or across the
          streets.   They are some of the common uses to
          which streets are necessarily devoted."

          It has been recognized further that it is in the public
    interest to receive utility services: therefore, public utilities
    are authorized to use the streets and highways.   State v. City of
    Austin (State v. City of Dallas), 160 Tex. 348, 331 S.W.2d 737
     (1960).

         The Legislature acting for the State has primary and
    plenary power to control public roads and streets. Recog-
    nizing this proposition, the Court in State v. City of Dallas
    (State v. City of Austin), 319 S.W.Zd 767 (Tex.Civ.App. 1959,
    aff. 331 S.W.2d 737) said at page 773:

          "There can be no question but that the Legis-
          lature can lawfully permit cities and private
          corporations to place facilities in streets
          and highways to provide essential utility
          service for the public, . . ."

         The Legislature has seen fit to grant direct statutory
    authorization to public utilities to use public roads and



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        Dr.   George   J. Beto, Page 3 (M- 508)



        highways.  Some such authority is found in Articles 1416, 1433,
        1436a and 1436b, Vernon's Civil Statutes.  It would therefore
        appear that Article 6203d, Vernon's Civil Statutes, would be
        rendered inapplicable to the question presented, since no addi-
        tional grant of an easement would be necessary in order to
        entitle public utilities to take advantage of the right-of-way
        of existing public roadways. Accordingly, the Texas Board of
        Corrections would not be obligated to collect, nor public utili-
        ties required to pay, for placing lines in, on, along or across
        existing public roadways traversing State land under the custody
        and control of the Texas Department of Corrections.

             Question 2 relates to the power of the Texas Board of
        Corrections to grant an easement for roadway purposes, while
        reserving the exclusive right to grant public utility easements
        along and across the roadway easement.

             It has been held that the erection of telephone poles and
        wires along a public street or highway does not impose an addi-
        tional servitude upon the highway. so as to require the public
        utility to condemn the land of the street for that purpose.
        Roaring Springs Town-Site Co. v. Paducah Telephone Co., 164
        S.W. 50 (Tex.Civ.App. 1914, aff. 212 S.W. 147). It has further
        been held that the statute so authorizinq is constitutional,
        though no additional compensation is provided.   Huffaker v..
        Lea County Electric Co-operative, 344 S.W.2d 915, 918 (Te  x,
        Civ.App. 1961, error ref. n.r.e.); accord, Continental Pipe
        Line Co. v. Gandy, 162 S.W.Zd 755, 757 (Tex.Civ.App. 1941,
        error ref. w.o.m.1

             In Roaring Springs Town-Site Co. v. Paducah, 109 Tex.
        452. 212 S.W. 147 (1919), an attemnt had been made to dedicate
        streets and alleys-in a.townsite for public use, while reserving
        exclusive right to grant, for valuable consideration, the right
        to use the streets and alleys to construct telephone, telegraph,
        electric wires and poles, and gas, water and sewer mains. The
        Court held that under the public policy of the State, a public
        utility corporation had the authority to construct and maintain
        its poles and lines along the streets and alleys dedicated for
        public use. The Court stated at page 148:
                1,. . . the attempt to reserve . . . a right in-
                consistent with such authority cannot be upheld.
                For the general rule that the dedicator may
                impose such restrictions as he may see fit on
                making a dedication of his property is subject
                to the thoroughly established limitation that
                the restriction be not repugnant to the dedica-
                tion or against public policy. . . ."


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Dr. George J. Beto, Page 4 (M-508)



     The Legislature, by virtue of Articles 1416, et seq.,
has authorized public utilities to place their lines in, over,
along and across public streets and roads within the State.
Such authorization is not restricted to roads and highways
to which the State or County owns the fee. Continental Pipe
Line Co. v. Gandy, 162 S.W.Zd 755, 757 (Tex.Civ.App. 1941,
error ref. w.0.m.).

     Therefore, by applying the same reasoning, advanced in
the Roaring Springs Town-Site Co. case, the attempt to reserve
exclusive right to grant a public utility easement over a roa'd-
way easement would be inconsistent with the direct legislative
grant of authority to public utility companies to lay their
lines over, along and across any public road, street or high-
way within the State.

     Accordingly, question 2 is answered in the negative.  The
Texas Board of Corrections is neither authorized nor entitled
to limit the use of a public roadway easement to roadway pur-
poses only, while reserving the exclusive right to grant public
utility easements in, on, along, over or across such roadway
easement.

                            SUMMARY

          Public utilities, by virtue of the direct
     legislative grant of Articles 1416, 1433, 1436a,
     1436b, and other similar Statutes, are authorized
     to place their facilities within the right-of-way
     along public roads, streets and highways in this
     State. Therefore, the Texas Board of Corrections
     is not obligated to collect nor must public utili-
     ties pay for placing their lines in, on, along,
     over or across existing public roadways which
     traverse State-owned land under the custody and
     control of the Texas Department of Corrections.

           Accordinclv. the Texas Board of Corrections
      is without power.to reserve, in the grant of an
      easement for public roadway purposes, the exclu-
      sive right to grant public utility easements over
      such public roadway easement.




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                     Dr. George J. Beto, Page 5 (M- 508)



                     Prepared by DONALD JONES
                     Assistant Attorney General

                     APPROVED:
                     OPINION COMMITTEE

                     Kerns Taylor, Chairman
                     George Kelton, Vice-Chairman

                     John Reeves
                     Harold Kennedy
                     Roger Tyler
                     Ronald Luna

                     MADE F. GRIFFIN
                     Staff Legal Assistant

                     NOLA WHITE
                     First Assistant




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