           T%E+R'PTORNE%!GE~RAL
                           QFTEXAS

PRICE-DANIEL
ATTORNEY
      GENERAL


                                January ‘29, 1948

      Hdn. Fred C. Meridlth          opinion ‘iio. v-489
      county Attorney
      Kaufnmn County                 Re:   AuthoHty of the Commls-
      Kaufman, Texas                       sloners’ Court to compel
                                           an Electric  Coopemtive
                                           to remove Its poles from
                                           a proposed right of way.
                                               *
                                 ~~..I
      Dear Mr. Deridlth:
                  Your reoent f!quest _for
                                        __ an opinion      of this   De-
      palrtmnt   lb substantlallJ  as f0110W~I
                 ‘We have a problem in Precinct No. 4,
           Kaufman County, that Is serious,       the final
           outcome of whioh ~111 be precedent for the
           other precinote     in thi’s county.   It appears
           to be one of interprets,tion     of a. franchise
           granted by the Commissioners1 Court to the
           REA local,   to wit, Kaufman County Electric
           Cooperative,   Inc.
                 “The State Highway Department has de-
           signated certain farm to market roads and
           highways in this County for Improvement
           and widening, and.by agreement the County
           is to furnish the right of way for such
           widening purposes.    The right of way has
           been secured on the particular   road in-
           valved, same having been doneted by the
           landowners along the route to the County.
           !Phs Cooperative has Its poles set along
           the existing   right of way of the present
           road, but such poles a.re on the new right
           of way ground that has b.een acquired by
           the County for the widening of said road.
                  “Under the franchise  granted to the
           Cooperative to use the roads of thla Coun-
           ty for setting poles for its transmissiou
           lines,   the County reserved the right to
           require the Cooperative to move Its poles
           at its own expense should it ever become
                                                                   -




Ron. Fred C. Meridith,    page 2   (v-489)


     necessary to move slid poles in order to
     widen the roads,    At least,  this seemed
     to be the intention   expressed in the re-
     servation in the franchise,    s~ccording to
     my interpretation.
           “The Codssioner      has notified  the
     Coopepatlvo,   In rocopdance with provisions
     of the franchitie,   to’move Its po$ee   f~ch
     the new right of ~way.     The Coo@erabive .bas
     refused to do so, cls.iaing that’ the poles
     are on private right of way easementa which
     the Cooperative obtained from the landowners,
     and not on public right of way, evensthough
     the line runs along the publioroad.
          The pertinent    portionsof    the franchise    refer-
red to In your request    reads as follows!
           “On this the 10th day of January, A.DD.
     1938, cs,me on to be hea,rd before the Com-
     mIssionersi     Court of Kaufman County, Texas,
     the’appllcation      of Kaufman County Electric
     Cooperative Inc. for the right to use the
     public roads, highwaysand         other public
     places of this ,county for the .purpose of
     constructing,     erecting,   maintaining and
     operating electric       transmission  and distri-
     bution lines in It’s business of dlstrlbu-
     ting electric     light snd power, and It ap-
     peering to the court that such use will
     not interfere,      obstruct or in anywise im-
     paF~ the use of said public ros.ds, high-
     ways or other public pla,ces:
           “IT IS THRRJPORE    ORDERED,ADJUDWD
     ANDDECREED    by the Commissioners1 Court
     of this County that Kaufman County Elec-
     trio Cooperative Inc. its successors      and
     asstgna, fs hereby authorized,     empowered
     and granted the perpetual right,     privilege,
     franchise   and easement to construct,     erect,
     maintain and operate electric     transmission
     and distribution    lines and all necessary
     OP usue,l attachments and appurtenances
     elong, across,    over, unde?? and on the
     streets,   lanes, highweys, public roads,
     bridges and other public places In this
     county 0
Pen. Fred C. Meridith,   ptige 3   (v-489)


           “In grantiug to the raid Kaufman Coun-
     ty Electric  Cooperative Ino. a franchise    to
     use the roads of Kaufman County for setting
     poles for its transnlisslon   lines, the Coun-
     ty reserves the right to permit the Cqmia-
     sioner of each precinct    to direct the place
     where said poles shall be set in his respec-




     such manner 8,s to be as little  In the way
     of said road as practical   and shall be done
     at no expense to the County.”    (mphasls  added
     throughout this opinion)
          Article   1435, V. C. S.,   ia aa follows:
            “Gas, electric    current and power ,cor-
     porations    shall have power to generate,
     Pleke and manufacture, transport and sell
     gae.~ electric    current and power to lndi-
     vldnals,    the public and’muniolpalities     for
     light,   heat, power end other purposes, and
     to make reasonable charge& therefor;       to
     oonstruct,     maintain and operate power plants
     and substations     end such machinery, appara-
     tus, pipes, poles, wires, devioes and ar-
     rangements as may be necessary to overate
     such lines at and between different       points
     in this State; to ovn, hold and use saoh
     lands, right of way, easements, franchises,
     buildings    and structures    as may be neces-
     sary for the purpose of such corporation.”
          Article   1436, V. C, S.,   provides2
            “Such corporation   shall have the right
     and power to~enter upon, condemn and appro-
     prlate the lande, rfght of way, easements
     and prop&Q      of any person or corparation,
     and shall have the right to ,erect its lines
     over and across any public road, railroad,
     railroad   right of way, interurban railroad,
     street railroad,    oanal or stream in this
     State, any street or alley of any incorpore-
     ted oitg or town in this State with the eon-
     sent and under the direction     of the govern-
Hon. Fred C. Meridlth,       page 4   (V-489)


        ing body of such city OP town. Such lines
        shell be constructed   unon suitable Doles
        in the most approved m&ner and maintsined
        st P height a~bove the ground of et least
        twenty-two feet;   or pipes may be placed
        under the ground, as the exigencies    of the
        case may require .‘I
           Generally speaking, a Commissioners! Court may
exercise  only those powers zpeclflcally    designated by
the Constitution   and the stfttutes,  or those powers nec-
essarily  implied.
           You have stated that the original     easement was
gra.nted by private landowners s.nd was not upon the es-
tablished Aght of way of said county, and that in wid-
ening said roed st the present time it becomes necezzery
to take in this particular  territory    upon which said
poles are located as additional    right of way. Such be-
ing the caze it becomes apparent that the county would
be taking private property for public use and therefore
the question of who bears the expense of removing said
poles would turn upon the validity     of the franchise
granted by the County of Kaufman to the Ke~ufmanCounty
Electric  Cooperative.
                In Opinion No. 0-6791-A,   dated October    19,
1945,    this    Department stated:
              “In oup Opinions Nos. O-1805, O-2442
        and O-5726, this departaent held that by
        virtue of the above Article      No. 2351, that
        the commissioners’ court has no euthority
        to grant franchises     to public utility    com-
        panies by Pea,aon of the fact that Article
        1436, suppa, by direct legislative        grant,
        grants to gas, electric     curpent and power
        companies the Pight to erect its lines
        over e.nd across any public roads outside
        of Incorporated   cities   and towns.”
           In the case of State ex rel City of Jasper v.
Gulf States Utilities  Co., 189 9. W. (26) 693, the Su-
preme Court of Texas stated:
               “The statutes of Texas have clear-
        ly defined the powers, prescribed     the
        duties,   and imposed the liabilities   of
        the commissioners’ court, the medium
Hon. Fred C. Meridith,     page 5    (v-489)


     tapoui& vhlch the dirfkwsntcountiesret,
     and from thorn statutes mast oomo a11,the
     authority reeted ln the oountlea. . . .i
     ?%!3,“2r:~:              tr:;:YxLEt:
     tlonal provision,  ve find that no authority
     is’ glveu the, aommlrsionerr~ oorurt to enter
     Into such contracta as.the one sued on in
     this case . . . .
           *Ror does 8 cofmlsslonersS court hare
     i.mplQd power to gpant such franchise  . . .
            “Since the coniiilssion~rs~‘court     of
     Jasper County vas without paver to grant
     the rlghta claimed by respondent the pur-
     ported f’ranchlse and extensions       thereoS
     are of no ioroe and effect      aa against the
     oltr’a   procedure under its ordinance.        . .*
          In Opinion Ro. O-7026, dated.June 22, 1946,         a
oopy of which Is enclosed, this Department stated2
           “First,  vo think there 18 no doubt but
     that the county ray lavfully    acquire &he
    ueedod strip for the purposes of the Fapm-
     to-Market road.    (Cklcsgo R. I. & 0, Ry. Co.
    V, Twrant Cou8ty Water Control Dietrlet,
    ,738. W, (2) 55; 16 Tex. Jtw. p. 595 Sec. 28,
    and authorities    there cited.)   It may acwlre
     that atrip in either of two iraysr      -   -

           "(a)   By condemnation, to vhlch proceed-
                  ing the RRA is a necessary party;
                  arc,
           "b)    By agreewnt     oi parties upon any
                  conslderatlon    valuable and mtlr-
                  faotory.
            “In aaae o? oondwuation,      oi~fmweo,     Sor
     constltutlonal   ,reaa&i:-.the property of the
     BRA may not be taken vlthbut adequate oollpeu-
     satlon to be deterrined      under the ord$wr&
     rules of’.oondematlon      prooeedinae.
     natwe of thlngs the damagea tmovervd            bJ
     the REA vould Include the element of r68oY-
     1% their pole8 and etjuipment thereiro8,
     md,re-indtalling     it elsevhere.      So, also,
                                                               -- ._, _




Hon. Fred C. Merldith,   page 6    (V-489)


     in the event of purchase, the same ele-
     ment would enter into the agreement.    In
     either event, the county will have notion-
     ally paid for such removal 8,s a part of the
     damegtfs upon condmenatlon OP purchase agree-
     ment .
           By virtue of tha foregoing     it is the opinion
of this Department that If it baoomae aEcersary to re-
move the poles of the Kaufman County El.ectrlc Coopera-
tive Inc. to widen’ farm-to-market    roads, the County
would be liable    Por such expense.    Sinae the County had
no authority   to grant the franchise    in question, the
provisiona   therein are unenforaeable.
           The delay   in forwarding this o inion was oc-
casioned by the faot     that this Departmen e was awaiti
the decision    of the 8upreme  Court of Texas on a seoo 3
motion for rehearing in the oaee of Herpstead v. Gulf
States Utilities    Company, whloh vas overruletl  on Decea-
ber 31, 1947, and as yet unreported,     and which could
have effected    the question presented in your factual
situation.


           The CommLemloner8~ Court of Kaufman
     County has no authority  to compel the
     Keufman County Eleatrlc  Cooperative Inc.
     to p8y the expense of remoVitIg its poles
     fron a private easement on adjoining   lands
     to enable the County to widen a farn-to-
     msrket road.
                                       Youra very   truly,
                                  ATTORNEY
                                         OEll’BRALOF TEXAS



                                  BY
                                       Burnell Waldrep
                                       Assietant
