Can a Texas county charge a road-cut fee when a company bores under the road instead of cutting through it?

TX AG Opinion GA-0722: Does the county road-cut fee apply to boring under the road?

Plain-English summary

A state representative asked whether the county road-cut fee in Local Government Code section 240.907 applies to activities that bore or tunnel under a road without cutting the surface. Section 240.907 lets a county impose a fee on a person or entity for each cut of a county road during or incidental to installing, maintaining, or repairing the person's facilities, such as a pipeline or other line. The Legislature added the fee because cuts weaken roads and raise the county's maintenance costs, so the fee funds the extra maintenance the cut and repair require. The fee may not exceed $500 and is on top of any other charge the county can impose to repair the damage.

The opinion turned on the statutory definition. Section 240.907(a) defines "a cut of a county road" as "the act of excavating or cutting the surface of a county road." Both verbs, "excavating" and "cutting," take "surface of a county road" as their object. Reading the words by their common meaning, the opinion concluded the fee applies to activities that sever the road surface, not to activities that leave the surface intact. So a county may charge the section 240.907 fee for excavating or cutting the surface, but not for boring or tunneling under a county road without opening up the surface.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Local Government Code section 240.907, including the fee cap, may have been amended since 2009. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

Counties: The opinion explained that section 240.907 let a county charge a fee, capped at $500, for cuts that excavate or cut the road surface, but did not authorize the fee for boring or tunneling underneath without opening the surface.

Pipeline and utility installers: The opinion described the line between a surface cut (which could trigger the fee) and boring under the road (which the fee did not reach), which bears on how the work is done and charged.

Anyone reading the road-cut statute: The opinion focused on the statutory definition tying the fee to excavating or cutting the road surface.

Common questions

If a company bores under the road, can the county still charge the fee?
No, according to the opinion. Section 240.907 applies to excavating or cutting the road surface, so boring or tunneling underneath without opening the surface is outside the fee.

How much was the road-cut fee?
The opinion noted the fee could not exceed $500 and was in addition to any other charge the county was authorized to impose to repair the cut.

Why does the surface matter?
Because the statute defines a "cut" as excavating or cutting the surface of the road. The opinion read both verbs as acting on the road surface, so an activity that leaves the surface intact is not a "cut."

Background and statutory framework

Section 240.907, added by House Bill 1610 (Act of May 29, 2005, 79th Leg., R.S., ch. 957, § 1, 2005 Tex. Gen. Laws 3227), lets a county impose a fee for each cut of a county road incident to installing or maintaining a person's facilities, capped at $500 and in addition to repair charges (Tex. Loc. Gov't Code Ann. § 240.907(b), (c)(1), (3) (Vernon 2005)). Construing the statute by the plain meaning of its words (FFP Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007); Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004); Tex. Gov't Code Ann. § 311.011 (Vernon 2005)), the opinion relied on the definition in section 240.907(a) of "a cut of a county road" as "the act of excavating or cutting the surface of a county road," with both verbs taking the road surface as their object, and concluded the fee does not reach boring or tunneling that leaves the surface intact.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 240.907, 240.907(a), (b), (c)(1), (3) (Vernon 2005)
• Tex. Gov't Code Ann. § 311.011 (Vernon 2005)
• Act of May 29, 2005, 79th Leg., R.S., ch. 957, § 1, 2005 Tex. Gen. Laws 3227

Cases:

• FFP Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007)
• Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637 (Tex. 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0722
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0722.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

June 17, 2009

The Honorable Jim Pitts
Chair, Committee on Appropriations
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0722

Re: Whether the phrase "cut of a county road" in Local Government Code section 240.907 includes boring under the road (RQ-0776-GA)

Dear Representative Pitts:

Your predecessor as Chair of the Committee on Appropriations requested an opinion interpreting Texas Local Government Code section 240.907, which authorizes counties to impose a fee on persons who cut a county road.[1] See TEX. LOC. GOV'T CODE ANN. § 240.907 (Vernon 2005). A person or entity that cuts a county road to lay a pipeline or other line is responsible for repairing the cut or paying the county for the repair. See SENATE RESEARCH CENTER, BILL ANALYSIS, Tex. H.B. 1610, 79th Leg., R.S. (2005) at 1.[2] Because the cuts weaken the road, causing higher maintenance costs for the county, the Legislature adopted section 240.907 to provide funds for the additional maintenance resulting from the cut and repair. See id.

Your predecessor asked whether section 240.907 applies to activities that bore or tunnel under a road without cutting the surface. See Request Letter at 1-2. Section 240.907 provides in part:

(b) To provide funds for the future inspection, repair, and maintenance of a cut road, a county may impose a fee on a person or other entity for each cut of a county road during or as an incident to the installation, maintenance, or repair of any facilities or properties of the person or entity.

TEX. LOC. GOV'T CODE ANN. § 240.907(b) (Vernon 2005) (emphasis added). The fee may not exceed $500, and it "is in addition to any other charge the county is authorized to impose to repair damage to the road because of the cut." Id. § 240.907(c)(1), (3).

Courts will determine and give effect to the Legislature's intent as expressed by the plain and common meaning of the statute's words. See FFP Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007); Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). "Words and phrases shall be read in context and construed according to the rules of grammar and common usage," and words or phrases that have acquired a technical or particular meaning by legislative definition shall be construed accordingly. TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005). In section 240.907, "a cut of a county road means the act of excavating or cutting the surface of a county road." TEX. LOC. GOV'T CODE ANN. § 240.907(a) (Vernon 2005) (emphasis added). In this definition, both "excavating" and "cutting" have "surface of a county road" as their object. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 855 (11th ed. 2004) ("object," definition 5(a), means a noun "denoting the goal or result of the action of a verb"). The word "cut" has been defined as "to divide into parts with an edged tool," while "excavate" has been defined as "to form a cavity or hole in." Id. at 308 (definition 3(b)(1)), 434 (definition 1). Section 240.907 thus applies to activities that sever the road surface. See generally Tex. Att'y Gen. Op. No. MW-189 (1980) at 1 (addressing the power of a municipal utility district to make open cuts across county roads for water lines instead of being restricted to boring under the roads). The language of the statute does not apply to activities that do not open up the surface of the road. We conclude that Local Government Code section 240.907 does not authorize counties to impose a fee on a person or other entity for activities that bore or tunnel under a county road without opening up the surface of the road.

SUMMARY

Texas Local Government Code section 240.907 authorizes counties to impose a fee not to exceed $500 on a person or entity for each cut of a county road during or as an incident to the installation, maintenance, or repair of a person's or entity's facilities or properties. A county may impose the section 240.907 fee for the activities of excavating or cutting the surface of a county road but not for activities that bore or tunnel under a county road without cutting the road surface.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter at 1 (Jan. 12, 2009) (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: Local Government Code section 240.907 was adopted by House Bill 1610. See Act of May 29, 2005, 79th Leg., R.S., ch. 957, § 1, 2005 Tex. Gen. Laws 3227.]