                        The Attorney               General of Texas
                                            June   5,   1980
MARK WHITE
Attorney General


                   Honorable Glen M. Ashworth                  Opinion No.   Hw-189
                   Kaufman County District Attorney
                   Courthouse                                  Re: Whether a municipal utility
                   Kaufman, Texas 75142                        district is required to obtain an
                                                               easement from the county when its
                                                               water lines cross county roads.

                   Dear Mr. Ashworth:

                           You have requested our opinion regarding whether a municipal utility
                   district is required to obtain an easement from the county when its water
                   lines cross county roads. You explain that a municipal utility district has
                   applied to the commissioners court of Kaufman County for an easement to
                   make open cuts across certain county toads. The commissioners court has
                   indicated that it will grant the easement only if the district agrees to bore
                   under the roads.

                        Section 54.217 of the Texas Water Code provides:

                              All [municipal utility] districts are given right-of-
                              way along and across all public, state, or county roads
                              or highways, but they shall restore the roads crossed
                              to their previous condition of use, as nearly as
                              possible at the sole expense to the district.

                   Section 54.217 clearly grants authority to a municipal utility district to cross
                   any public road in order to carry out its responsibilities under section 54.201.
                   The statute does not require the district to obtain sn easement, or any other
                   kind of permission, from the commissioners court before doing so. The
                   district is required only to “restore the roads crossed to their previous
                   condition of use, as nearly as possible at the sole expense to the district.”

                          Although articles 6703 and 6741, V.T.C.S., grant to a commissioners
                   court the power to control public roads, article 6703 V.T.C.S. conveys this
                   authority on the condition that it be “not in conflict with the laws of this
                   state.” Both statutes were enacted prior to the adoption of section 54.217 in
                   1971. In any event, due to the specific language of article 6703 V.T.C.S., we
                   do not perceive any conflict between section 54.217 and the statutes
                   granting authority over public roads to a commissioners court.




                                                   p.   605
Honorable Glen M. Ashworth     - Page Two        (NW-1891




      Neither do we perceive    any conflict     between    section   54.217 and section   54.2271,
enacted in 1975:

           Construction work of a district located wholly or partly outside the
           extraterritorial   jurisdiction  of a city shall meet standards
           established by the commissioners court of the county in which the
           district is located to protect local drainage and to prevent flooding
           in flood-prone areas.

In our opinion, section 54.2271 means merely that the district must comply with drainage
standards previously promulgated by the commissioners court in much the same way that a
district is required to comply with health, fire, or air quality standards established by
other governmental units.

      We have not been advised of the reasons for the county’s insistence that the lines be
laid by subterranean boring, or of the district’s reasons for insisting on open cuts. The
Water Code clearly anticipates that open cuts or other district operations making roads
impassable will sometimes be necessary. See Water Code S 54.213. It is our view that the
municipal utility district may determine toToss a county road by making open cuts rather
than by boring under the road. “Across” is defined as

           from one side to the opposite side of . . . ; also, on, against,         or
           over, from one side to the other.

Webster’s New International Dictionary (2d ed., 1947). In our opinion, the municipal utility
district may utilize county right-of-way in any reasonable manner “across” a county road,
and , assuming the use of sound engineering and construction principles, the district may
determine that it is reasonable to cross such a road by making open cuts rather than by
boring under the road. If the county determines that the course chosen by the district is
unreasonable, it may seek judicial redress.

                                      SUMMARY

           A municipal utility district is not required to obtain an easement
           from a commissioners court before making open cuts across a
           county road for the purpcee of laying water lines.

                                          vwlwY&g



                                                 Attorney General of Texas




                                            P.    606
Honorable Glen M. Ashworth    - Page Three    (~~~189)




JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jim Allison
Susan Garrison
Rick Gilpin




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