                                            June 22,200O



The Honorable J.E. “Buster” Brown                Opinion No. JC-0234
Chair, Natural Resource Committee
Texas State Senate                              Re: Whether an excavator, who has given proper
P.O. Box 12068                                  notice of a planned excavation under section 25 1.15 1
Austin, Texas 7871 l-2068                       of the Utilities Code, must give a new notice to a
                                                notification center when excavation does not start
                                                within fourteen days of the date the excavator
                                                provides the notice (RQ-0173.JC)


Dear Senator Brown:

          Section 25 1.15 1 of the Utilities Code generally requires a person who intends to excavate,
and thereby possibly damage underground facilities such as cables or pipelines, to “notify a
notification center [of the planned excavation] not earlier than the [fourteenth] day before the date
the excavation is to begin or later than” forty-eight hours “before the time the excavation is to
begin.” TEX. UTIL. CODE ANN. 5 25 1.15 1(a) (Vernon Supp. 2000). The statute does not expressly
state that an excavator who has properly notified the notification center must notify the center
again if he or she does not start excavating within fourteen days of the notice, and so you
ask whether an excavator must provide a new notice in these circumstances.            See Letter from
Honorable J.E. “Buster” Brown, Chair, Natural Resource Committee, Texas State Senate, to
Honorable John Comyn, Office of the Attorney General of Texas (Jan. 14, 2000) [hereinafter
“Request Letter”]. We believe the statute requires new notice.

         The Underground Facility Damage Prevention and Safety Act (the “Act”), chapter 25 1 of the
Utilities Code, is designed to provide statewide notification ofplanned excavations that will remove
or disturb soil to a depth of at least sixteen inches. See TEX. UTIL. CODE ANN. $5 251.001, .002(5),
,051 (Vernon Supp. 2000). For purposes of the Act, an “underground facility” is “a line, cable,
pipeline system, conduit, or structure that is located partially or totally underground and that is used
to produce, store, convey, transmit, or distribute telecommunications, electricity, gas, water, sewage,
steam, or liquids such as petroleum, petroleum products, or hazardous liquids.” Id. 5 251.002(13).
The Act divides underground facilities into two classes, Class A and Class B. See id. $251.002(l),
(2). A Class A underground facility is one that is used to produce, store, convey, transmit, or
distribute electricity, gas, petroleum or petroleum products, steam, telecommunications      service, or
“any other liquid, material, or product not defined as a Class B underground facility.” See id.
5 251.002( 1). A Class B underground facility is one that is used to produce, store, convey, transmit,
or distribute water, slurry, or sewage. See id. tj 25 1.002(2).
The Honorable J.E. “Buster” Brown      - Page 2      (JC-0234)




          The Texas Underground Facility Notification Corporation, a public nonprofit corporation
created by the Act, see id. 5 251.052, maintains a registration of Class A underground-facility
operators and has established “a statewide toll-free telephone number” for excavators’ use “that
routes calls to      notification centers on a pro rata basis.” Id. 9 251.060(l), (3). A Class A
underground-facility   operator must participate in a notification center and must provide the
notification center with information regarding the underground facility’s location, as well as the
name and telephone number of a contact person. See id. 9 251.107(a), (b).

        Section 251.151(a) of the Utilities Code, which is specifically at issue here, requires an
excavator to notify a notification center that the excavator plans to excavate at a particular site:

                       Except as provided bySections251.155      and251.156 [regard-
               ing emergencies and various other exceptions, see id. Q§ 251.155,
               .156], a person who intends to excavate shall notify a notification
               center not earlier than the 14th day before the date the excavation is
               to begin or later than the 48th hour before the time the excavation is
               to begin, excluding Saturdays, Sundays, and legal holidays.

Id. 5 25 1.151(a) (Vernon Supp. 2000). The notice must describe the planned excavation’s location
and must state “the starting date and time and the anticipated completion date of excavation.” Id.
5 251.152(2), (5). An excavator is considered to have provided the requisite notice when the
excavator “delivers the required information and a notification center receives that information
within the time limits prescribed by” section 25 1.15 1. Id. 5 25 1,154(a).

        A notification center receives, at any time ofthe day or night, notice of an excavator’s intent
to excavate. See id. 5 251.101(2)(A), ,102. The center in turn disseminates the information to
underground-facility   operators who may be affected and other registered and affected notification
centers operating in this state. See id. $5 251.101(2)(B), ,102. Upon receiving notice of a planned
excavation from a notification center, a Class A underground-facility        operator must “mark the
approximate location of its underground facilities .       if the operator believes that marking the
location is necessary. The operator shall mark the location” in general within forty-eight hours of
the excavator’s notice to the notification center of intent to excavate. See id. 5 251.157(a). An
underground-facilities   operator also may choose to have a representative present during the
excavation if the operator contacts the excavator to advise him accordingly. See id. 5 25 1.15 l(c).

        An excavator who complies with statutory notification requirements “may not be liable for
damage to an underground facility that was not marked in accordance with” chapter 251. Id.
$25 1.157(c). An excavator who fails to comply with the notification requirements may be liable
not only for damages, see id. 5 25 1.008 (stating that chapter 25 1 does not affect civil remedy for
property damage), but also for a “civil penalty” of between fitly and one hundred dollars for a tirst-
time violation. See id. 5 251.201(a). Subsequent violations are subject to higher tines. See id. 5
251.201(b), (c) (assessing civil penalty for second, third, or subsequent violation).
The Honorable J.E. “Buster” Brown       - Page 3      (X-0234)




         You indicate that underground-facility   operators and excavators interpret section 251.151
differently with respect to whether an excavator who has provided proper notice under section
25 1.15 1(a) must provide additional notice ifthe excavation does not commence within fourteen days
of the notice:

                          The underground facility owners have interpreted Section
                251.151         to require excavators to provide a new notice or a
                statement that excavations are continuing every ten days.           The
                excavators assert that the notification centers require subsequent
                notices every ten days even though the location ofthe excavation has
                not changed from the location stated in the initial notice.         The
                excavators argue that the subsequent notice requirement has increased
                the number of calls to the notification centers to such a level that the
                notification centers are not able to adequately meet the demand. The
                end result, the excavators claim, is that many requests have not been
                responded to in a timely manner or go unanswered.

                        The underground facility owners contend that the subsequent
                notice requirement is necessary to ensure that underground facility
                lines remain marked at all times. The underground facility owners
                claim that lines clearly marked after the initial notice by excavators
                disappear or are erased due to the changing conditions, both natural
                and man-made, at the excavation location.

Request Letter, supra, at l-2 (citation omitted).

         In our opinion, the plain language of section 25 1.I 5 1 requires a person to provide a new
notice to the notification center if the excavation’s start date is delayed beyond fourteen days of the
original notice. A court, as it interprets a statute, generally follows the plain meaning of an
unambiguous statute. See Monsanto Co. v. Cornerstones Mm. Util. Dist., 865 S.W.2d 937, 939
(Tex. 1993);Martinezv. Lakshmikanth, 1 S.W.3d 144,146-47(Tex.App.XorpusChristi                 1999,pet.
tiled). “If the meaning of the statutory text       should have been plain to the legislators who voted
on it, we ordinarily give effect to that plain meaning.” Houston Chronicle Publ ‘g Co. v. Woods, 949
S.W.2d 492,497 (Tex. App.-Beaumont            1997, no pet.).

          Consequently, where notification is provided earlier than fourteen days of the excavation’s
actual start date, the notification does not comply with section 25 1.15 1. Section 251.15 1 requires
a person who intends to excavate to notify a notification center “not earlier than” the fourteenth day
before the excavation is to begin. Ifan excavator notifies the notification center fourteen days before
he or she intends to begin excavation, but the start date is delayed beyond fourteen days, then the
notification was earlier than fourteen days.
The Honorable   J.E. “Buster” Brown    - Page 4      (JC-0234)




          While the plain-meaning      canon of construction is subject to exceptions in certain
circumstances, no exception is warranted here. “The plain-meaning rule is subject only to narrow
exceptions.    For example, we should not ‘attribute to the Legislature an intention to work an
injustice.’ Nor should we construe a statute in a way that leads to foolish or absurd consequences.”
Meno v. Kitchens, 873 S.W.2d. 789,792 (Tex. App.-Austin 1994 writ denied) (citations omitted);
see also Houston Chronicle Pub1 ‘g Co., 949 S.W.2d at 497. It is not absurd to require an excavator
to provide new notice to the notification center, and thereby to activate notification of the
underground-facility   operators, that the excavation will commence at a date later than fourteen days
of the original notice. Nor does a requirement to provide new notice work an injustice.

        Moreover, this construction comports with the remedial nature of the Underground Facility
Damage Prevention and Safety Act, chapter 25 1 of the Utilities Code. See TEX.UTIL.CODE ANN.
251.001 pernon Supp. 2000). The Act is a legislative attempt to remedy the problem of damage
to underground facilities caused by excavators and the consequent loss of services to customers:

                [Elxcavation work is responsible for 45% ofpipeline failures, making
                third[-Iparty damage or outside force damages the leading cause of all
                ruptures. Furthermore, more than 250,000 Texans each year lose
                total phone service or access to long distance service due to
                underground facilities that are cut by excavators who fail to call for
                information. A half-inch fiber optic cable cut can disrupt service to
                thousands of citizens and cut off whole communities from vital 911
                service. Nearly 200,000 Texans lose access to 911 service each year
                due to cable cuts.

HOUSE COMM. ON PUBLIC SAFETY,BILL ANALYSIS,Tex. Comm. Substitute H.B. 2295,75th Leg.,
R.S. (1997). This remedial purpose is not furthered by a construction of the statute under which an
underground-facility  operator would be apprised only of the scheduled start date of excavation but
not the actual start date. Conversely, requiring new notice if the excavation does not commence
within fourteen days of the original notice ensures that underground-facility operators will be aware
of the actual date of excavation and will have the opportunity to re-mark the locations of their
underground facilities, thereby increasing the chances that the excavator will not damage the
underground facility.
The Honorable J.E. “Buster” Brown - Page 5         (JC-0234)




                                      SUMMARY

                      An excavator that properly notifies a notification center of a
              planned excavation under section 25 1.15 1 of the Utilities Code no
              more than fourteen days nor no less than forty-eight hours before the
              excavation is expected to commence must notify the notification
              center again if the commencement is delayed beyond fourteen days
              of the original notice. See TEX. UTIL. CODE ANN. 5 251.151(a)
              (Vernon Supp. 2000).

                                             Y   rs very truly’



                                         4JY JOkN     CORNYN
                                                            @T


                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
