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                                   The Attorney         General of Texas
                                                  wr    6. 1986
    JIM MAlTOX
    Attorney General


    Supreme Court Building         Honorable James M. Kuboviak              Opinion No. .X+489
    P. 0. Box 12546
    Austin. TX. 76711. 2546
                                   Brazes County Attorney
    512/475-2501                   Courthouse                               Re: Liability of a counry for
    Telex 9101674-1367             Bryan, Texas   77853                     burled cable damaged during
    Telecopier   51214750288                                                widening of a road

    714 Jackson. Suite 700
                                   Dear Mr. Kuboviak:
    Dallas. TX. 752024506
    2141742.6944                       You ask the fo'llowingquestion:

                                             What is the liability of a county with respect to
    4624 Alberta Ave.:Suite  160
    El Paso, TX. 7!3905-2793
                                             buried mble   in a county right-of-way that is
    9151533.3464                             damaged t'y the county during the widening of a
                                             public ro.ad?

    21      Texas. Suite 7W             The question was raised by the fact that a county comissioaers
          ,s,on, TX. 77002-3111
                                   court, in 1979, acoptod at a meeting of the court what purports to be
         J12235666
                                   an agreement with a telephone company that, among other things, stat?s
                                   that cha county "will ir, no way be responsible for ar.y damage chat
    606Broadway,Suite
                  312              might occur to any existing lines in the right-cf-way." A ccunty wcrk
    Lubbock. TX. 79401-3479        crew has damaged the telephone company's buried cables during road
    8081747.5236
                                   widening construction. The county suggests that the "agreement" that
                                   it adopted in 1979 is binding on the telaphone company.
    4309 N. Tenth, Suite 6
    McAllen. TX. 76501-1665                 The liabilisf of a county for damage caused by the countp Cc
    5 12/662-4547                  cable buried in its right-of-way involves factual detemimtions which
                                   this office is not authorized to decide. See Attorusy General @pInion
     200 Main Plaza, Suite 400     JM-408 (1985). Also, we cannot decide the'faccual issues necessary fo
     San Antonio. TX. 762052797    determine the existence of a contractual agreement, such as consi-
     51212254191                   deration     and communlcarion of an acceptance. We conclude, however,
                                   that a county, by resolution or otherwise, may not unilatarallv change
                                   the general law of liability applicable to the county for the damage
     An Equal Opportunity/
     Aftirmative Action Employer
                                   in question.

                                        Tort liability is determined by the legisiatura and the courts ;n
                                   the statutory and case law of the state. In addition to the well-
                                   established recovery of damages based on the theory of negligence, the
                                   Texas courts have allowed recovery on the basis of the liability under
                                   article I. sectiott17 of the Texas Constitution for taking, damaging,
                                   or destroying private property for public use. See State V. Hale, 146
                                   S.W.Zd 731, 737 (Tex. 1941). The Texas courTalso         have allowed




                                                                  P. 2234
Eonorable James H. Kubwiak   - Page 2   (JM-489)                          .




racovery for the severance of telephone cables lawfully buritd on
uublic right-of-way on thi! theor, of the law of trespass.    See
Mountain states T&phone    md T.&graph Co. V. Vowel1 C&structs
co., 341 S.W.2d 148, 150 CT&. 1960).

     Historically. a county avoided liability under the doctrir,c of
sovereign immunity. -See --Lime v. Texas Tech University, 540 S.W.2d
297, 298 (Tex. 1976). Thai Texas Tort Claims Act now waives that
immunity of a county for property damage caused by negligence which
arises from the county's 'use of motor vehicles or motor-driven
equipment. See Civil Practice & Remedies Code, 1101.021, §lOl.n25.
In most factsituations, danage to buried cable in a county right-of-
way during the widening oji a public road will involve the use of
motor-driven vehicles or equipment. As indicated, we do not address
whether the county has cntized into, or could legally enter ioto, a
contract in which rhe telephone company released a cause of action
under the Tort Claims Act.

     Article 1416, V.T.C.S., which applies to trlephoze as well as
telegraph lines, expressly grants the ielephone company the right to
lay its lines along, upon, and across any public roads, streets, or
waters of Texas, subject -d-
                         only to the restriction that ic must ba done
in a manner that does not inconvenience the public in the use of such
roads, streets, and waters. This right is granted by the ~legislature
and callhot be denied by a county. See Reldt ye.~Southwrstrrn Beil
Telephone Company, 482 S.W.2d 352, 355,357 5 (Tex. Civ. App. - Corpus
Christ1 1972, no writ); Attorney General Opinions M-1218 (<972); N-~OE~
(1969); O-2517 (1.940).

     It is well-established that a county commissioners court
possesses only the powers cclnferredeither expressly or by zrcessary
implication by the constitution and statutes of this state. See Tex.
Const. art. V, 518; Canales V. Laughlin, 214 S.W.2d 451. 4r(Tex.
1948). A county may contract only in the manner and for the nurooses
provided by atatut;. _--
                       Galveston, H. & S.A. Railway Co. vi U;aldr
;~;y;.,'~~.S..\~l.2d
                   305, 30;' (Tex. Civ. App. - San Antonio 1942, writ


     We are not aware of aay statute that gives h county the power to
condition or limit the right of a telephone company to lay its cables
within the right-of-way of a county, so long as the telephone company
does not inconvenience the .public in the uaa of the roads, or that
authorizes a county to suspend unilateraliy the waiver of immuniry to
tort liability provided by the Texas Tort Claims Act. -See Attcrney
General Opinions JM-432 (19:36);H-1015 (1977).




                               p. 2235
Honorable James M. Kuboviak - Page 3     (JM-489)




                              SUMMARY

             A county does not have the power to change the
          genaral law of tort liability or immunity to tort
          liability and my      not   impose conditions   or
          limitations 00. the statutory right of a telephone
          company to lay its cables within the right-of-way
          of the county, tie long as the company does not
          disturb the public in the use of the road.




                                        TM        MATTCZ
                                          Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

NARY KELLER
Executive Assistact Attorney General

ROBERT GRAY
Special Assistant Attorney General

PICK CILPIN
Chairman. Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




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