                       June 13, 1977




Honorable Emory C. Walton              Opinion No. ~-1015
Criminal District Attorney
Eastland County                     Re: Authority of a telephone
Eastland, Texas 76448               company to lay buried tele-
                                    phone lines within county road
                                    right of way without the ap-
                                    proval of the commissioners
                                    court.

Dear Mr. Walton:

     you have requested our opinion regarding the authority
of a telephone company to lay buried telephone lines within
the right-of-way of a county road without the approval of the
commissioners court. Article 1416, V.T.C.S., provides:

          Corporations created for the purpose of
          constructing and maintaining magnetic
          telegraph lines, are authorized to set
          their poles, piers, abutments, wires and
          other fixtures along, upon and across any
          of the public roads, streets and waters
          of this State, in such manner as not to
          incommode the public in the use of such
          roads, streets and waters.

This statute has been held applicable to telephone as well
                     Heldt v . Southwestern
as telegraph lines. ---                ----: Bell Telephone Co.,
482 S.W.2d 352, 355 (Tex. Civ. App. -- Corpus Christi 1972, no
writ).
     Article 1422, V.T.C.S., authorizes "[tlhe corporate autho-
rities of any city, town or village through which the line of
any telegraph corporation is to pass" to
          specify where the posts, piers or
          abutments shall be located, the kind
          of posts that shall be used, the height
          at which the wires shall be run. . . .




                             p. 4189
Honorable Emory C. Walton   - page 2   (H-1015)



The courts have held repeatedly that the right granted a tele-
phone company to lay its lines under article 1416 is absolute,
subject only to the limitations of article 1422. A munici-
pality may not prevent a telephone company from using its
streets; but is authorized only to direct where the company's
lines and poles shall be placed. $%!iens22$hone_CSg@&Qt
of Athens, 182 S.W. 42, 44 (Tex. Civ. App.
ref'd); City of Brownwood v. Brown Telegraph-- & Telephone Co.,
152 S.W.709, 713 (Tex. Civ. App; -- Austin 1912), aff'd, 157
S.W. 1163 (Tex. 1913). City of Texarkana v. Southwestern Tele-
graph & Telephone Co., 106 S.W. 915 (Tex. CT. App. -- -87-G
writ). See also Heldt v. Southwestern Bell Telephone Co., supra
at 356. A citvTs-rmt    to sztrol its streets must vield to
article 1416. -City of Texarkana v. Southwestern
                                      .-           Telegraph &
Telephone Co., supra.

     No statute similar to article 1422 applies to counties,
and, in the absence of such a provision, it is our opinion
that a county is~without authority to specify the location of
telephone lines on county right-of-way.   It is well established
that a countv oossesses onlv those'oowers soecificallv conferred
by the Constitution or by siatute.,-C~anales-TV.Laughlin, 214
S.W.2d 451, 453 (Tex. 1948). Thus, Tiruir opinion, a telephone
company is-authorized to. lay buried telephone lines within
the right-of-way of a county road without the approval of the
commissioners court. We note, however, that article 1416 re-
quires that a telephone company place its lines "in such manner
as not to incommode the public in the use of" the public roads.

                        SUMMARY .--
                        -_
          A telephone company is authorized by article
          1416, V.T.C.S., to lay buried telephone
          lines within the right-of-way of a county
          road without the approval of the commissioners
          court, but the company must place its lines
          "in such manner as not to incommode the
          public in the ruse of" the public roads.

                                       truly yours,




                                Attorney General of Texas




                             p. 4190
Honorable Emory C. Walton - page 3   (H-1015)



APPROVED:




Opinion Committee

klw




                           p. 4191
