 ‘ OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

   JOHN CORNYN




                                               September     12,2002



The Honorable Ron Lewis                                    Opinion No. JC-0556
Chair, Energy Resources Committee
Texas House of Representatives                             Re: Whether a particular special district must
P.O. Box 2910                                              notify or obtain various political subdivisions’
Austin, Texas 78768-2910                                   consent before laying new or repairing existing
                                                           water or sewer facilities located in county or
                                                           municipal right-of-way, and related questions
                                                           (RQ-0530-JC)

Dear Representative        Lewis:

         Section 49.220 of the Water Code gives a water district created under article XVI, section
59 of the Texas Constitution “rights-of-way within, along, under, and across all public” county
or municipal roads “and rights-of-way and other public rights-of-way.” TEX. WATER CODE ANN.
9 49.220 (Vernon 2000); see also id. 5 49.001 (a)( 1) (defining “district”). Section 402.104 of the
Local Government Code requires a water corporation to notify the county commissioners court when
the corporation proposes to “build a water line along” county-road right-of-way. TEX. Lot. GOV’T
CODE ANN. 8 402.104(b)(2) (V emon 1999). You ask whether a special utility district, which is an
article XVI, section 59 water district and a water corporation for the purposes of chapter 402 of the
Local Government Code, must “obtain verbal approval or a written permit from a county, drainage
district, city[,] or any political subdivisions other than the State of Texas, to install, extend,
construct[,] or repair existing or new water and sewer mains, taps, or other apparatuses located
within county rights-of-way.“*

         Assuming that you ask only about county right-of-way located outside a municipality, we
conclude that section 402.104 of the Local Government Code requires a district or water supply
corporation to notify the county before laying new fixtures within the right-of-way. Nevertheless,
the district is not required to notify the county before repairing existing fixtures. Aside from the
Texas Department of Transportation, no other political subdivision, such as a municipality, has
authority over county right-of-way located outside a municipality.

        You also ask whether, if such a special utility district “finds it absolutely necessary to [ ‘lopen
cut[‘] all or part of a county or city road,” the district must obtain “verbal approval or a written


            ‘Letter from Honorable Ron Lewis, Chair, Energy Resources Committee, Texas House of Representatives, to
Honorable     John Comyn, Texas Attorney General (Apr. 3,2002) (on file with Opinion Committee) [hereinafter Request
Letter].
The Honorable Ron Lewis - Page 2               (JC-0556)




permit from a county or city.” Request Letter, sypra note 1, at 1. Section 402.103 of the Local
Governrnent Code requires the district to obtain the municipality’s approval in accordance with
municipal regulations before the district lays pipes, mains, or conductors in municipal right-of-way.
See TEX. Lot. GOV’T CODEANN. 0 402.103(b) (Vernon 1999); cJ: id. 8 402.104(b). With respect
to county right-of-way located outside a municipality, however, the district need only notify the
county, consistently with Local Government Code section 402.104, if the district plans to lay water
lines.

         Finally, you ask whether, if “a county, drainage district, city[,] or any other political
subdivision requests” a special district to remove or relocate new or existing facilities located
“within county right-of-way,” the special district may require the other political subdivision to
reimburse the district for the cost of removing or relocating the facilities. Request Letter, supra note
1, at 2. The district generally bears the costs of removing or relocating facilities when a county or
municipality requests the removal or relocation. See TEX. LOC. GOV’T CODE ANN. 5 402.105(b)
(Vernon 1999); City of San Antonio v. Bexar Metro. Water Dist., 309 S.W.2d 491,493 (Tex. Civ.
App.-San Antonio 1958, writ ref d). But see TEX. TRANSP.CODEANN. 4 251.103 (Vernon 1999)
(providing circumstances in which county may pay costs of relocating water lines).

         You inquire into the nature of a county’s authority to require a special utility district to get
the county’s permission before the district works within county right-of-way, as well as the approval
authority of other political subdivisions. Your questions concern, in particular, the Mauriceville
Special Utility District (the “MSUD”), which, you state, “provides water and sewer service to
portions of Orange, Jasper, and Newton counties.” Request Letter, supra note 1, at 1. According
to your letter, the Orange County Commissioners Court requires the district to “obtain a written
permit prior to doing any work within county-maintained rights-of-way.” Id.

        The MSUD is a conservation and reclamation district under article XVI, section 59 of the
Texas Constitution.   Originally created in 199 1 as the Mauriceville Water Supply Corporation by
order of the Texas Water Commission, see TEX. WATERCODEANN. 8 67.003 (Vernon Supp. 2002);
Tex. Water Comm’n, UncontestedAgenda, Item 17 (May 22,199l); cJ:TEX. REV. CIV. STAT.ANN.
art. 1434a (repealed), it was converted to a special utility district by the Texas Natural Resource
Conservation Commission in 1994. See Tex. Nat. Res. Conservation Comm’n, An Order Granting
Request for Conversion to and Creation of Mauriceville Special District; Appointing Temporary
Directors; Amendment and Transfer Certljkate of Convenience and Necessity No. 11722, Docket
No. 94-0492-DIS (Dec. 12,1994); see also TEX. WATERCODEANN. $9 65.011, .014 (Vernon 1988
& Supp. 2002) (authorizing water supply corporation to propose to Texas Natural Resources
Conservation Commission that it be converted into special utility district). A special utility district
created by such a conversion “is considered a conservation and reclamation district under Article
XVI, Section 59, of the Texas Constitution.” TEX. WATER CODEANN. 8 65.011 (Vernon 1988).

         Consequently, the MSUD is subject to chapter 49 of the Water Code, which includes section
49.220 of the Water Code. See TEX. WATER CODEANN. 5 49.001(a)(l) (Vernon 2000) (defining
“district” to include any district created under Texas Constitution article XVI, section 59);
Request Letter, supra note 1, at 1 (quoting section 49.220). Section 49.220 applies to “[a] district
The Honorable    Ron Lewis - Page 3              (JC-0556)




or authority created” under article XVI, section 59 of the Texas Constitution.       TEX. WATER CODE
ANN. 8 49.001(a)(l) (V emon 2000) (defining “district”); see also id. 8 49.002(a) (providing that
chapter 49 applies, in general, to “all general and special law districts”). Section 49.220 of the Water
Code gives a district certain rights-of-way:

                         All districts or water supply corporations are given rights-of-
                way within, along, under, and across all public, state, county, city,
                town, or village roads, highways, and rights-of-way and other public
                rights-of-way without the requirement for surety bond or security;
                provided, however, that the entity having jurisdiction over such roads,
                highways, and rights-of-way may require indemnification.      A district
                or water supply corporation shall not proceed with any action to
                change, alter, or damage a portion of the state highway system
                without having first obtained the written consent of the Texas
                Department of Transportation, and the placement of any facility of a
                district or water supply corporation within the state highway right-of-
                way shall be subject to department regulation.

Id. 8 49.220; see id. 8 49.001 (a)(lO) (defining “District facility”).

        Read in isolation, section 49.220 appears to authorize a district to use right-of-way without
seeking approval from an entity other than the state Department of Transportation. See id. § 49.220;
c$ Tex. Att’y Gen. Op. No. M-508 (1969) at 2-3 (construing analogous statute). Because the section
does not expressly require a district to obtain approval from a county, city, or political subdivision
other than the Department of Transportation, it may be argued that a district need not seek the
approval of an entity other than the Department of Transportation.        See 2A NORMAN J. SINGER,
STATUTESAND STATUTORYCONSTRUCTION5 47.23 (6th ed. 2000) ( ex pl aining maxim “expressio
unius est exclusio alterius”). In addition, section 49.220 does not expressly make the district’s right-
of-way subservient to any other right-of-way holder. The term “right-of-way,” although not defined
in chapter 49 of the Water Code, generally means that the holder has a “legal right . . . to pass
through grounds or property owned by another.” BLACK’SLAW DICTIONARY1326 (7th ed. 1999);
see TEX. GOV’T CODEANN. 8 3 11 .Ol 1 (Vernon 1998) (providing for defining words in statutes); cJ:
Tex. Elec. Ry. Co. v. Neale, 252 S.W.2d 45 1,454 (Tex. 1952); S.H. Oil &Royalty Co. v. Tex. &New
Orleans R.R. Co., 295 S.W.2d 227,230-31 (Tex. Civ. App.-Beaumont             1956, writ ref d n.r.e.).

        But the MSUD is also a water corporation subject to chapter 402 of the Local Government
Code. Section 402.103 of the Local Government Code requires a water corporation to obtain a
municipality’s consent before laying water system facilities in municipal right-of-way:

                          A water corporation    may lay water system pipes, mains, or
                 conductors through a street,   alley, lane, or square of a municipality if
                 the governing body of the       municipality consents, subject to any
                 regulation by the governing    body.
The Honorable Ron Lewis - Page 4                (JC-0556)




TEX. Lot.    GOV’T CODE ANN. 5 402.103(b) (V emon 1999); see also TEX. TRANSP.CODE ANN.
$5 3 11 .OOl-.002 (Vernon 1999) (providing home-rule and general-law municipalities                 with
“exclusive control over and under the public highways, streets, and alleys of the municipality.“);
TEX. REV. CIV. STAT. ANN. art. 1175(l) (Vernon Supp. 2002) (listing among home-rule
municipality’s powers authority to “prohibit the use of any street, alley, highway, or grounds of the
cityby..   . any other character of public utility without first obtaining the consent of the governing
authorities expressed by ordinance and upon paying such compensation as may be prescribed and
upon such condition as may be provided by any such ordinance.“). Section 402.104 similarly-but
not identically-requires    a water corporation to notify a county of its intent to lay water system
pipes, mains, conductors, or other fixtures in county right-of-way:

                    (a) A water corporation or municipality may lay water system
                pipes, mains, conductors, or other fixtures through, under, along,
                across, or over a public road, a public street, or a public waterway not
                in a municipality in a manner that does not inconvenience the public
                using the road, street, or waterway.

                    (b) A water corporation or municipality proposing under this
                subchapter to build a water line along the right-of-way of a state
                highway or county road not in a municipality shall give notice of the
                proposal to:

                         (1)     the Texas Transportation   Commission,   if the proposal
                relates to a state highway; or

                        (2)     the commissioners    court of the county if the proposal
                relates to a county road.

                     (c) On receipt of notice under Subsection (b), the Texas
                Transportation Commission or commissioners court may designate
                the location in the right-of-way where the corporation or municipality
                may construct the water line.

TEX. LOC. GOV’T CODEANN. 8 402.104 (Vernon 1999). Although the term “water corporation”              is
not defined for the purposes of sections 402.103 and 402.104, a county water control and
improvement district created under article XVI, section 59 of the Texas Constitution has been held
to be one because, according to a court, it is “a corporation whose rights and duties appertain solely
to water.” Travis-Williamson County Water Control & Improvement Dist. No. I v. State, 359
S.W.2d 528,529 n.l,53 1 (Tex. Civ. App.-Austin 1962, writ ref d n.r.e.); see Act of May 24,1955,
54th Leg., R.S., ch. 401,§ 1,1955 Tex. Gen. Laws 1067,1067 (creating Travis-Williamson County
Water Control and Improvement District No. 1). Likewise, the MSUD is considered a district
created under article XVI, section 59. See TEX. WATER CODEANN. 9 65.011 (Vernon 1988) (“A
special utility district . . . is considered a conservation and reclamation district under Article XVI,
Section 59 of the Texas Constitution”).
The Honorable Ron Lewis - Page 5              (JC-0556)




         Accordingly, a district that is subject to chapter 402 of the Local Government Code, like the
MSUD, must obtain a municipality’s consent before laying pipes, mains, or conductors in municipal
right-of-way and must notify (but need not obtain the approval of) a county before laying water
system pipes, mains, conductors or “other fixtures” in county right-of-way located outside a
municipality. See TEX. LOC. GOV’T CODEANN. 5 8 402.103(b), 402.104(b)(2) (Vernon 1999). This
office has construed the statutory predecessor to section 402.104 to endow a water corporation with
a right, “so far as a county is concerned,” to lay its water lines without obtaining a permit from the
county, although the county may designate “where on the right-of-way the pipes shall be laid.” Tex.
Att’y Gen. Op. No. M-12 18 (1972) at 2, 5. To “give notice” to a county under section 402.104
indicates that a water corporation must inform the county of its plans, while section 402.103 requires
a water corporation to gain a municipality’s permission.        Compare id. 0 402.104(b)(2); BLACK’S
LAW DICTIONARY1087-88 (7th ed. 1999) (defining “notice”) with TEX. Lot. GOV’T CODEANN.
8 402.103(b) (V emon 1999); BLACK’SLAW DICTIONARY300 (7th ed. 1999) (defining “consent”).
In this way, sections 402.103 and 402.104 of the Local Government Code further define the right-of-
way a water corporation has under section 49.220 of the Water Code.

         You ask first about the MSUD’s authority to work within only county right-of-way. See
Request Letter, supra note 1, at 1. Assuming that you are concerned about county right-of-way
located outside municipal limits, we conclude that section 402.104 of the Local Government Code
requires the MSUD to notify the county before it lays water lines within county right-of-way,
although it need not obtain the county’s consent. See TEX. LOC.GOV’T CODEANN. fj402.104(b)(2)
(Vernon 1999). The MSUD must lay the fixtures “in a manner that does not inconvenience the
public using the road [or] street.” Id. 0 402.104(a). In our opinion, section 402.104 applies to the
act ofbuilding water lines where none have been before, including by “install[ing], extend[ing], [or]
construct[ing] .” Request Letter, supra note 1, at 1. While section 402.104 does not require a water
corporation to notify the county before repairing existing fixtures, the corporation is not forbidden
to do so. Excluding the state Department of Transportation, we know of no other statute requiring
a district or water supply corporation that has received rights-of-way under section 49.220 of the
Water Code to notify another political subdivision that also uses the county right-of-way. No other
political subdivision aside from the state Department of Transportation has jurisdiction over county
right-of-way that is located outside a municipality. The MSUD must notify the Texas Underground
Facility Notification Corporation of any planned excavations as chapter 25 1 of the Utilities Code
requires, however. See TEX. UTIL. CODEANN. ch. 251 (Vernon Supp. 2002); see also Tex. Att’y
Gen. Op. No. JC-0234 (2000) at l-2 (discussing requirements of Utilities Code chapter 25 1).

         You ask second about the MSUD’s authority to open cut all or part of a county or city road.
See Request Letter, supra note 1, at 1. If the work involves laying water system pipes, mains,
conductors, or other fixtures in county right-of-way, the MSUD must notify the county under section
402.104. Moreover, the district may not lay fixtures in a manner that “inconvenience[ s] the public
using the road [or] street.” TEX. Lot. GOV’T CODEANN. 8 402.104(a) (Vernon 1999). And, under
section 402.103, the district may not open cut a municipal road until it has obtained the
municipality’s written approval. See id. 8 402.103(b). The open cut must comply with municipal
regulations.   See id. Furthermore, the MSUD must notify the Texas Underground Facility
Notification Corporation of any planned excavation as chapter 25 1 of the Utilities Code requires.
The Honorable   Ron Lewis - Page 6             (JC-0556)




See TEX. UTIL.CODEANN. ch. 25 1 (Vernon Supp. 2002); see also Tex. Att’y Gen. Op. No. JC-0234
(2000) at l-2 (discussing requirements of Utilities Code chapter 25 1).

         We finally turn to your remaining question, regarding the MSUD’s authority to seek
reimbursement from “a county, drainage district, city[,] or any other political subdivision” that asks
the MSUD to remove or relocate “new or existing . . . facilities located within county right-of-way.”
Request Letter, supra note 1, at 2. With respect to “a county road not in a municipality,” section
402.105 of the Local Government Code authorizes a county commissioners court to require a water
corporation to relocate the corporation’s water line at the corporation’s own expense “to allow the
widening or other changing of a traffic lane.” TEX. Lot. GOV’T CODE ANN. 8 402.105(a)-(b)
(Vernon 1999). To impose this requirement, “the commissioners court . . . must give to the water
corporation . . . [thirty] days written notice,” which notice “must identify the water line to be
relocated and indicate the location on the new right-of-way where the corporation . . . may place the
line.” Id. fj 402.105(c).

         We consequently conclude that a county may require the MSUD to pay for removing or
relocating the district’s facilities within county right-of-way, with respect to roads located outside
of a municipality.      Indeed, a county’s authority to pay for relocating a water line is strictly
circumscribed:

               A county may pay for relocating a water line owned by a water control and
        improvement district if:

                        (1) the relocation is necessary to complete construction or
                improvement     of a farm-to-market road as described by Section
                256.008; and

                         (2) the district agrees to pay the county for the relocation
                costs:

                           (A)   within 20 years; and

                         (B) with interest at a rate equal to the rate paid by the
                county on its road and bridge fund time warrants.

TEX. TRANSP.CODEANN. 5 25 1.103 (Vernon 1999).

        With respect to roads located inside a municipality, the municipality may require the MSUD
to pay for removing or relocating district facilities. See City of San Antonio, 309 S.W.2d at 493
(concluding that metropolitan water district must pay costs of necessary changes in its lines). A
municipality has no authority with respect to roads outside its boundaries, however. Additionally,
a drainage district or other political subdivision has no general authority to require the MSUD to
remove or relocate the district’s facilities.
The Honorable    Ron Lewis - Page 7               (JC-0556)




         As the court pointed out in Travis- Williamson County Water Control and Improvement
District No. 1 v. State, the MSUD would bear liability for removing its facilities even if the statutes
did not require it. See Travis- Williamson County, 359 S.W.2d at 531-32. The primary purpose of
public highways, roads, and streets is to enable “‘travel and transportation.“’ Id. at 532 (quoting
State v. City ofAustin, 33 1 S.W.2d 737,741 (Tex. 1960)). While a public utility may use right-of-
way for laying its lines, this use is “‘subject to reasonable regulation by either the state, the county[ ,]
or the city . . . . The utility may always be required, in the valid exercise of the police power by
proper governmental authority, to remove or adjust its installations to meet the needs of the public
for travel and transportation. “’ Id. (quoting City ofAustin, 33 1 S.W.2d at 741); see also Hill Farm,
Inc. v. Hill County, 436 S.W.2d 320, 323 (Tex. 1969) (stating that streets’ and roads’ primary
purpose takes priority over the subservient use of rights-of-way for “sewers, pipelines and other
methods of transmission and communication that serve the public interest”); Pittman v. City of
Amarillo, 598 S.W.2d 941, 944 (Tex. Civ. App.-Amarillo            1980, writ ref d n.r.e.) (“Any use by”
entity other than governmental entity with jurisdiction over public street must yield if it interferes
with governmental entity’s “superior easement rights”); City of San Antonio, 309 S.W.2d at 492
(“while public utilities may use . . . roads and streets for the laying of their telegraph, telephone[,]
and water lines, . . . , such uses are subservient to the main uses and purposes of. . . roads and
streets”). Analogously, this office has explained that an electric utility that “accept[s] the sovereign’s
benevolence” by placing its electric poles and wires on state highway right-of-way must be prepared
to remove and relocate the structures to avoid interfering with the state’s widened or relocated
highway. Tex. Att’y Gen. Op. No. O-2978 (1941) at 7. These considerations would not apply, on
the other hand, to a drainage district and a political subdivision other than the state Department of
Transportation, a county, or a municipality that do not use the right-of-way for its primary travel-
oriented purpose.
The Honorable Ron Lewis - Page 8              (JC-0556)




                                       SUMMARY

                         A district created under article XVI, section 59 of the Texas
               Constitution has the right to use public right-of-way under section
               49.220 of the Water Code, but the district, as a water corporation, is
               subject to the requirements of chapter 402 of the Local Government
               Code when it wishes to lay water system facilities.           For those
               activities to which chapter 402 applies, a water corporation must
               obtain the consent of a municipality or notify a county that has the
               primary right-of-way. With respect to the laying of fixtures within
               the county’s right-of-way, the district may not “inconvenience the
               public using the road [or] street.” TEX. LOC. GOV’T CODE ANN.
               5 402.104(a) (Vernon 1999).

                       A county or municipality may require a district or water
               supply corporation with rights under section 49.220 of the Water
               Code to remove or relocate the district’s or corporation’s facilities at
               the expense of the district or corporation.




                                               Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
