           ..
                                                 ,’
                                                                  .,”
Hon. E.H. Thornton. Jr.
                            .
                                                                                         .~~_-T: ~~            ~.
Chaarman, Texas Hlihway Department                                                       .~~~
Austin, Texas
                                                                                         :j         ; : “.,
                          ~Oplnion No,. ,*-45                           .~          .~
                                ..   ,.
                   .,
   :.,.~    .’                            ~~’’ Fe; Legality      of the uses of State, mon$es,
‘..,        .~., ~~“~                               by the Highway Con&salon for re-’
                                                     imbureement for relocation      of n’ti~l-
                                                     iti&    occupying Highway rights of
                                                     way by virtue of statutory      autho-
                                                     rlty when Mlocatlon      is neceesary due
                                                .~ ‘to Highway Improvement under the Fed-
                                                     eral-Aid Highway Act of 1956~.                                           .
Dear Sir:               :                                                                i.   ..,     :.
                                                                ;..
                : ~‘i& following           question   was presented.         In ~your’recent               lettert
                “~Whereufllltles    have’ located on highway rights’
            of way by virtue of statutory       authorities,     and such.
            utllltles    do not hold a prior property right,        we
            are not quibe sure of our position        in respect to         ” :
            particlpatlng     in the cost of utility     relocationa-    ‘,
            which ,are made necessary by public, safety and fu-
            ture hlghway construction      work. Please advise if
            in view of the State Constitution        and governing
            State laws, and al.80 In view of the above mentioned
            Federal leglalaU.on     and governing rules’ and regu-.
            latlone,    the State Highway Commission has authority                                                   ,.
            to use State and Federal highway funds to effect
            such ,utlll.ty adjustments or relocatiqns        .I”
          The
            -,__pertinent                  portion    of the Federal         Al.d Highway Act of
1956 ie as followe:
            .“Sec,. III.   REZOCATIONOF UTILITY FACTLITIES.                                                               :
             (a) AvailabIlIty  of Federal Funds for Relm-
             bursement to State.
           3ubject   to the. condition8   contained in this section,         when-
ever a State ahall pay for the coot of relocation          of utility     fa.Cil.i-
tlee neceasttated    by the construction    of a project    on the Federal-aid
primary or secondary syatema or on the Interstate         System, including
extensions   thereof within urban areaa, Federal funds may be used to
reimburoe the State for such qost,in       the same proportion      as Federal
funds are expended on the project;       Provided,  that Fede+        funds
                                                                        ---   shall
not be apportIoned to the States un%??-%$s sectmenie     --1-             p?ymeuf-
                                                                                   ,


  Hon. E.H. Thornton,        Jr.,    page 2 (WW-45)                            .




  to the utiI.i.ty violates  the law of the State   or violates a legal
  contract betwzzt+nthe utility   and the State.” (Emphasis added.)
            Since Federal Ald Highway Act provides that federal fuhdr
  ~%hall not be apportioned   to etatee for the relocation    of utilities
  vhere such payment vlolatee   the law of the State,” the question hero
  resolves int:, whether or not the Constitution   or the 1~1s of Texas
  prohibit payments of State money for the relocation      of utilities
  where the utll~tg  occupies a highway rlght’of   way by virtue of stat-
  utory authority.
             Inasmuch as Article  III, Section 51 of the Texas Conetitu-
  tion prohibits   the grant of public money to any lndlvldu,al, aasocla-
  tion or cor?oratlon,   It is necesearg to examine the ntatutee under
  which the u%llltles   have been permitted to locate on public highway
  rights of way to detennlne the nature of the right to such occupation
  of the right of way.
  Telegraph      &d Telephone       Corporations   -

                 Article   1415, V.A.C.S.,     provides:
                  “Corporatlonrt created for the I:ur;:#osr! of constrmc-
              ting and maintaining magnetic tclegyaph lines,          are
              authorized    to set their poles , ;;:ler:j, abutmc$nte, wires
              and other flxturc.:s along, upon and acro::s any cf the
              public roads, streets     and waters c>f tLia State, In
              such manner as not to Incommode thti pub1l.c In the use
              of such roa.ds, atreets and wat::,rs.” (3!hir atetute has
              been interpreted    to include teic:&one     coLl!;pantea. Sh
              and 1I.P. Ry. Co. v. S.W. Tel. ac,d 5~1. Cg., 93 Tex.
                13,    S.W. 11 , City of Brosnvsod v. Br?wn Tele-
              graph & Telephone Co., 1m.W.         709).

             The authorization   for location     l.s limited by Article    1422,
  V.A.C.S.,  which gives to incorporated     cities,     towns and villages    the
  power to speclQ   the location    and pass ou any alteratl.on     o? faclll-
  ties located wlthln their limits.
    ._       It should be observed that the permission to use the pub-
  lic tights of way Is subject    to the provls? that such use should be
: In a manner “a8 not to Incommode the public in the uee OS such roads,
  streets  and waters.” While no Texas Court haa construed this lan-
  gucc;e, the courta of other jurisdiction     have.unlformly     reasoned:
  8lr;ce the use of the highways is primarily designed for the traveling
  public;  and since the location   of utility   facilities     therein la aec-
  ondazq and subordinate,   and eatltlee    the utility     to DO specific~gosi-
  tion therein,   and since rights In the highways are subject to the
  exercise  of the police power of the State and its agencies;           then,
Hon. E.H. Thornton,    Jr.,   page 3,   (w-45)


even in the absence Of a specific    statutory requirement,   the util-
‘ities are required to bear the cost of any relocation     necessary
for the public welfare.   (Emphasis added). SouTe;;    Bell Te;;phone &
Telegraph v. Commonwealth, 266 S.W. 2d 308 (K .       . APP. 1 4)
                 elephone & Telegraph v. Florida ex rel. Erwin, +5 So.




              Thk case of Southern Bell Telephone and Telegraph v. Comnion- --
 wealth, supra, in cons%lng        a Kentucky statute similar to Article
 wand         a Kentucky constitutional   proViSion     similar to Section 51 df
.Artlcle   III, held that the irrevocable,       perpetual franchise   granted
 to a telephone Company to maintain poles and lines upon all highways
 in the Commonwealth In such manner as to afford no obstruction           of
 public use contemplated +.hat the telephone company might thereafter
 be obligated    to relocate    its poles and lines at Its own expense. The        _
 Court construed the term in the statute “so as not to obstruct” as
 relating   to obstruction   of ,lmprovements, construction     and reconstruc-.
 tion of highways as well asp to obstruction        of travel upon completed
 highways.
            The case further held that aside from the express provision
In the statute which requires a utility      to use highways in such a man;’
ner “so as to not to obstruct” the use of the highways, the permission
given In the statute to the telephone company to construct       Its lines
la the rights of way of public highways contained an “implied        condl-
tlon that appellant     (at Its own expense) may be required to remove
and relocate   Its facilities   when such removal and relocation    are In
the interest   of public convenience and safety.”
           ‘It Is, therefore,     clear that telephone and telegraph corpo-
rations can be required to bear the expense of the relocation        of their
poles and other fixtures      located within public rights of way under
the permission given in Article        1416 when highway improvement diatates
such relocation.
Water Supply Corporations
             Articles  1433 and 1433a, ‘1434a, V.A.C.S.,  provide that water
corporations     can use the rights of way of public highways and the
streets   of titles,   towns, and villages  subject to regulation  and super-
vision by the appropriate     governmental body. Articles   1433 and 1433a,
   .   .   _




  Hon. E.H. Thornton,     Jr.,   page 4, (WW-45)

  now specifically    provide that the Highway Commission (or Commissioners
  Court in the case of a county road) may require a water corporation,
  after notice,    to relocate  its lines to permit the widening or changing
  of traffic’lanes    of the highway or road at its own expense. Before
’ 1949, these artiolea     did not oontain speoific   language that relocation
  oould be required at the utlllties’      expense, but the statutes   did pro-
  olde for regulation     and supervision  In the placing of the facilities
  by the pertinent    governmental authority.
  tiewage Service    Corporations
            A&ale    1434a gives to sewer service oorporations the right
  to locate In the rights of way of public hlghwaye under the supervision
  of the Highway Commission.
  Gas. Electric     Current and Power Corporations
             Gas, electric   current and power corporations are permitted
  by Artlc1.e 1436 to erect lines over and across any public road or a
  street of an lncorpora.ted   city or town with the consent and under the
  direction  of the governing body of such city or town.
                Artlole   1436(a) gives to Eleotric    Cooperative   Corporations
  end other corporations         engaged in the generation,   transmission,   or
  distribution      of electric    energy, the power to use public highways and
  streets    for the locatfon      of Its facilities,  subject to. the consent ‘and
  direction     of incorporated      cities and towns, as to such use within their
  limits     and provided that the Highway Commission (or Commissioners
  Court in the case of a county road) can require the utility             to re-
  locate Its facilities         at Its own expense should highway Improvement
  dictate.
               Gas utilltles   are given the right to the use of public hfgh-
  ways and streets by Article      1436(b) in the same manner and with same
  restrictions     and provisos as aregiven   to e1ectrl.c utilities under
  Article    1436(a).
              As in the case of Telephone and Telegraph Corporations,        it
  is.-:again apparent that other utilities     occupyhng’ public rights of way
  (the Water Supply Corporations , the Sewage Service Corporations,         and
  the Gas, Electric    Current and Power Corporations)     must bear, pe cost
  of relocation    of their facilitieswhen     relocation  is made ngceesary
  by hIghway or street improvement or reconstruction        made in the inter-
  est of the convenience or safety of the traveling        public.  Such lm-
  provement and reconstruction       Is withln the State’s   police powder, and.
  the coot must be borne by the utility,       regardless  of whether or not




                                     .
 .      .




                                                                               ,
lipn. E. H. Thornton,        Jr.,       Page 5 (WW-45)


the statutes         contain such express language that the utility must re-
locate      at its    own expense a8 that found in Articles l433, 1433a,




           veref ore, since utilities can be required to’bear      the cost
of relo&tlon    made necessary by highway construction,   reconstruction,
or Improvement, Section 51 of Article    III of the Texas Constitution
would prohibit   the use of State Highway funds (and Federal highway
funds) to effect   such relocations.
                              I                         I
                                     SUMMARY
                                     --
                Section 51 of Article. III of the’ Texas Constitution
            prohibits   the State Highway Commission from using State
            and Federal highway funds to effect       the relocations     of
            util$.ties  located on highway rights of way by virtue
            of statutory    authority   when highway construction     and
            Improvement under the Federal Aid Highway Act of:1956
            necessitate    such utility   relocation.
                                                     Yours very truly,
                                                    ,’WILL WILSON
                                                      Attorn’ey General




 . ..
WZ;bttbk
APPROVED
       t
OPINIONCOMMITTEE


H, Grady Chandler                   t
         Chairman
