If my Texas dig is delayed, do I have to call the line-locate center again?

Plain-English summary

Texas has a call-before-you-dig system. Under chapter 251 of the Utilities Code, the Underground Facility Damage Prevention and Safety Act, a person who plans to excavate must call a notification center so that operators of buried lines, cables, and pipelines can come mark where their facilities are before the digging starts. Section 251.151 sets the timing: the excavator must call "not earlier than" the 14th day before excavation begins and no later than 48 hours before. Senator Buster Brown asked a narrow timing question. If an excavator calls in proper notice but then does not actually start digging within 14 days, does the law require a fresh notice?

The opinion said yes. It read section 251.151 by its plain words. Because the statute says notice cannot be given earlier than the 14th day before the dig begins, an excavator who calls 14 days before the planned start and then has the start slip past that window has, in effect, given notice earlier than 14 days before the actual start. That original notice no longer complies, so a new one is required. The opinion checked the usual exceptions to plain-meaning reading, that a court should not read a statute to work an injustice or reach an absurd result, and found none applied: it is neither absurd nor unjust to ask an excavator to re-notify when the dig is pushed back.

The opinion also tied its reading to the Act's purpose. The Legislature passed chapter 251 to cut down on damage to underground facilities, which the bill analysis blamed for nearly half of pipeline failures and hundreds of thousands of Texans losing phone or 911 service each year to cut cables. Telling operators only the originally scheduled start date, while the real digging happens later, would not serve that goal. Requiring a new notice when the start is delayed beyond 14 days makes sure operators learn the actual date and can re-mark their lines, since markings can fade or be erased by weather and activity at the site, lowering the chance the excavator hits something.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Senator Buster Brown and the Senate Natural Resources Committee (what the opinion held): The opinion gave him a direct answer to the disputed timing question. Under the plain language of section 251.151, an excavator who properly notified a notification center must notify it again if the excavation's start is delayed beyond 14 days of the original notice.

Excavators (what the opinion held for them): The opinion meant that an excavator whose dig slipped past the 14-day window could not rely on the first notice; a new notice was required for the notice to comply with section 251.151 and to keep the statutory protection from liability for damage to unmarked facilities.

Underground-facility operators and notification centers (what the opinion held for them): The opinion meant operators were entitled to notice keyed to the actual start of excavation, giving them the chance to re-mark their lines, consistent with the Act's remedial purpose of preventing damage to buried facilities.

Common questions

If my excavation is delayed past 14 days, do I have to notify the center again?
Yes. The opinion concluded that the plain language of section 251.151 requires a new notice to the notification center if the excavation's start date is delayed beyond 14 days of the original notice.

Why does a delayed start make the first notice invalid?
Because section 251.151 says notice may be given "not earlier than" the 14th day before excavation begins. The opinion reasoned that if the dig starts more than 14 days after the call, the original notice was, by definition, earlier than 14 days before the actual start, so it no longer complies.

What happens if I dig without giving a fresh notice?
The opinion noted that the statute's liability shield protects an excavator who complies with the notice requirements, while an excavator who fails to comply may face civil damages and a civil penalty (between fifty and one hundred dollars for a first violation, with higher penalties for later ones).

Does this requirement defeat the purpose of calling early?
No. The opinion explained that requiring a new notice when the start slips past 14 days serves the Act's purpose, ensuring operators know the actual excavation date and can re-mark facilities whose markings may have faded or been erased.

Background and statutory framework

Chapter 251 of the Utilities Code provides statewide notification of planned excavations that disturb soil to a depth of at least sixteen inches (Tex. Util. Code §§ 251.001, .002(5), .051). It defines "underground facility" broadly (§ 251.002(13)) and sorts facilities into Class A (electricity, gas, petroleum, steam, telecommunications, and the like) and Class B (water, slurry, sewage) under § 251.002(1), (2). The Texas Underground Facility Notification Corporation, created by section 251.052, runs a statewide toll-free number routing calls to notification centers (§ 251.060), and Class A operators must participate and supply location and contact information (§ 251.107).

Section 251.151(a) requires the excavator to notify a center no earlier than the 14th day and no later than the 48th hour before excavation begins, with the notice describing the location and stating the start date, time, and anticipated completion (§ 251.152); the excavator is treated as having given notice when the center receives the information within those limits (§ 251.154(a)). The center disseminates the information to affected operators (§ 251.101(2), .102), and a Class A operator generally must mark its facilities within 48 hours of the excavator's notice (§ 251.157(a)). An excavator who complies is shielded from liability for damage to facilities that were not marked (§ 251.157(c)), while one who does not comply may face civil remedies (§ 251.008) and civil penalties (§ 251.201). Applying the plain-meaning canon (Monsanto Co. v. Cornerstones Mun. Util. Dist.; Martinez v. Lakshmikanth; Houston Chronicle Publ'g Co. v. Woods) and finding none of its narrow exceptions for injustice or absurdity applicable (Meno v. Kitchens), the opinion concluded a new notice is required when excavation does not begin within 14 days of the original notice.

Citations

Statutory provisions:

• Tex. Util. Code Ann. § 251.151(a), (c) (Vernon Supp. 2000)
• Tex. Util. Code Ann. §§ 251.001, .002(5), .051 (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.002(1), (2), (13) (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.052 (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.060(1), (3) (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.107(a), (b) (Vernon Supp. 2000)
• Tex. Util. Code Ann. §§ 251.155, .156 (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.152(2), (5) (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.154(a) (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.157(a), (c) (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.008 (Vernon Supp. 2000)
• Tex. Util. Code Ann. § 251.201(a), (b), (c) (Vernon Supp. 2000)

Cases:

• Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993)
• Martinez v. Lakshmikanth, 1 S.W.3d 144, 146-47 (Tex. App.-Corpus Christi 1999, pet. filed)
• Houston Chronicle Publ'g Co. v. Woods, 949 S.W.2d 492, 497 (Tex. App.-Beaumont 1997, no pet.)
• Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex. App.-Austin 1994, writ denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0234
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0234.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

June 22, 2000

The Honorable J.E. "Buster" Brown
Chair, Natural Resource Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0234

Re: Whether an excavator, who has given proper notice of a planned excavation under section 251.151 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 251.151 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. § 251.151(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 Cornyn, 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 251 of the Utilities Code, is designed to provide statewide notification of planned excavations that will remove or disturb soil to a depth of at least sixteen inches. See TEX. UTIL. CODE ANN. §§ 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. § 251.002(13). The Act divides underground facilities into two classes, Class A and Class B. See id. § 251.002(1), (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. § 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. § 251.002(2).

The Texas Underground Facility Notification Corporation, a public nonprofit corporation created by the Act, see id. § 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. § 251.060(1), (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. § 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 by Sections 251.155 and 251.156 [regarding emergencies and various other exceptions, see id. §§ 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. § 251.151(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. § 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 251.151. Id. § 251.154(a).

A notification center receives, at any time of the day or night, notice of an excavator's intent to excavate. See id. § 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. §§ 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. § 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. § 251.151(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. § 251.157(c). An excavator who fails to comply with the notification requirements may be liable not only for damages, see id. § 251.008 (stating that chapter 251 does not affect civil remedy for property damage), but also for a "civil penalty" of between fifty and one hundred dollars for a first-time violation. See id. § 251.201(a). Subsequent violations are subject to higher fines. See id. § 251.201(b), (c) (assessing civil penalty for second, third, or subsequent violation).

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 251.151(a) must provide additional notice if the 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 of the 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 1-2 (citation omitted).

In our opinion, the plain language of section 251.151 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 Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993); Martinez v. Lakshmikanth, 1 S.W.3d 144, 146-47 (Tex. App.-Corpus Christi 1999, pet. filed). "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 251.151. Section 251.151 requires a person who intends to excavate to notify a notification center "not earlier than" the fourteenth day before the excavation is to begin. If an 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.

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 Publ'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 251 of the Utilities Code. See TEX. UTIL. CODE ANN. § 251.001 (Vernon 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:

[E]xcavation work is responsible for 45% of pipeline failures, making third[-]party 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.

SUMMARY

An excavator that properly notifies a notification center of a planned excavation under section 251.151 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. § 251.151(a) (Vernon Supp. 2000).

Yours very truly,

JOHN CORNYN
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