Is a Texas county liable under the state's high-voltage power line safety law if a county crew contacts an overhead line?

Texas AG Opinion JM-1062: Is a County Liable Under the High-Voltage Line Safety Law?

Plain-English summary

Texas has a statute, article 1436c, that sets safety rules for anyone working close to high voltage overhead power lines. Before you put up a structure, move equipment, or handle materials within a set distance of an energized line, the statute says you have to take specified precautions. It also has teeth: section 7 makes a violator criminally punishable and, if the violation leads to physical or electrical contact with the line, liable to the line's owner for the resulting damage. The Chambers County Attorney wanted to know a straightforward thing: does that liability reach the county itself? If a county crew violates the statute and hits a line, is the county on the hook under section 7, and has the county thereby waived its governmental immunity?

The Attorney General said no, the county is not covered by article 1436c. The reason comes down to who the statute names. Article 1436c applies to a "person, firm, corporation, or association." A county is none of those. Texas courts have a long habit of reading statutes written this way not to include governments unless the Legislature says so more plainly, especially when the statute carries penalties. The AG walked through that line of cases: an old antitrust statute using nearly identical language ("persons, firms, corporations or associations") was held not to reach municipal corporations, and a surface-water statute aimed at any "person, firm or private corporation" was held not to apply to a city either. The courts reasoned that if the Legislature meant to hit governments with severe penalties, it would have used apter words.

There is a wrinkle the AG had to address. The Code Construction Act contains a broad definition of "person" that expressly includes a "government or governmental subdivision or agency." If that definition applied, a county would be a "person." But that Act, by its own terms, does not govern the construction of ordinary civil statutes like article 1436c. The rule that does apply to civil statutes, Government Code section 312.011, is narrower: it says "person" includes "a corporation," and stops there. That matters because Texas courts draw a line between a "municipal corporation" (a city) and a county, which they classify as a "quasi-corporation." A county is not a corporation in the ordinary sense, so reading "corporation" to sweep in counties would be a stretch the AG was not willing to make. He also rejected an argument built on the statute's own exemptions: article 1436c exempts certain county employees who qualify as "authorized persons," but the AG held that carving out some county workers does not imply that counties are otherwise liable.

So under article 1436c specifically, a county cannot be held liable. The opinion closed with an important caveat, though, so no one would read it too broadly. Counties are not immune from all liability for high-voltage-line accidents. The Texas Tort Claims Act expressly defines "governmental units" to include counties and waives immunity in defined situations, such as injury or death caused by the operation of motor-driven equipment or by a condition or use of tangible property. Whether a given county activity falls within the Tort Claims Act is a fact question the AG could not resolve in an opinion, but the door to that kind of claim remains open.

Currency note

This opinion was issued in 1989. 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.

The high-voltage line safety statute analyzed here as V.T.C.S. article 1436c has since been recodified into chapter 752 of the Texas Health and Safety Code, and the Tort Claims Act provisions cited from the Civil Practice and Remedies Code have been amended over the years. Later court decisions have addressed how the recodified statute interacts with governmental immunity and indemnity claims among utilities and public entities. Anyone dealing with a present-day high-voltage-line accident involving a county or other governmental body should work from the current Health and Safety Code chapter and current Tort Claims Act case law rather than the 1989 article numbers used here.

Who this opinion affected (as of 1989)

County governments and their crews: The opinion told counties they were outside the reach of article 1436c's penalties and section 7 liability, giving county road, utility, and construction operations one less statutory exposure to worry about, though not a general shield from suit.

Electric utilities and line owners: The opinion narrowed one route to recover from a county for damage to their lines. A utility could not lean on article 1436c's owner-recovery provision against a county, and would instead have to fit any claim into the Texas Tort Claims Act.

Injured workers and their families: The opinion pointed them toward the Tort Claims Act rather than article 1436c when a county's activity around a high-voltage line caused harm, since that Act, not the safety statute, is where a county's waiver of immunity lives.

Common questions

Can a Texas county be fined or held liable under the high-voltage line safety statute?
No. The Attorney General concluded a county is not a "person, firm, corporation, or association" within article 1436c, so the statute's safety directives, criminal penalty, and section 7 liability do not apply to counties.

Why isn't a county a "corporation" for this statute?
Texas courts classify a county as a "quasi-corporation," distinct from a municipal corporation like a city. The definition of "person" that applies to civil statutes such as article 1436c includes "a corporation," and the AG did not read that to include a county.

Doesn't the Code Construction Act say "person" includes a government?
It does, but that broad definition governs the construction of the codes, not ordinary civil statutes. The narrower civil-statute rule in Government Code section 312.011 controls here, and it reaches only "a corporation."

Does this mean a county can never be sued over a power-line accident?
No. The opinion was explicit that counties may still be liable under the Texas Tort Claims Act, which defines governmental units to include counties and waives immunity in specific circumstances. Whether a particular incident fits that Act is a question of fact.

Background and statutory framework

The Chambers County Attorney asked whether article 1436c, V.T.C.S., applies to counties so as to operate as a waiver of a county's governmental immunity for purposes of county liability under section 7. Article 1436c provides that "no person, firm, corporation, or association" shall, without taking specified safety precautions, perform activities, erect structures, handle or store items within a stated proximity to high voltage overhead lines, or operate certain equipment. Section 7 makes every person, firm, corporation, or association, and their agents or employees, who violates the Act punishable by fine or jail, and provides that if a violation results in physical or electrical contact with a high voltage line, the violator is liable to the owner or operator of the line for all resulting damage and liability. The AG concluded that a county is not a "person, firm, corporation, or association" within the meaning of article 1436c and thus is not subject to liability under that article.

The conclusion rested on a settled pattern in Texas case law. In State v. Central Power & Light Co., 161 S.W.2d 766, 767 (Tex. 1942), the Texas Supreme Court held that the former antitrust statute, V.T.C.S. article 7426, which defined a "trust" as a combination of capital, skill, or acts by two or more "persons, firms, corporations or associations," did not include municipal corporations; noting the statute was penal, the court reasoned that if the Legislature had intended to visit such severe penalties on municipalities, it would have used more apt language to describe them. Id. at 768. The opinion cited the same principle in City of Houston v. Renault, Inc., 431 S.W.2d 322 (Tex. 1968), where a statute making it unlawful for any "person, firm or private corporation" to divert or impound surface waters was held not to apply to municipal corporations, and City of Corpus Christi v. Atlantic Mills Servicing Corp., 368 S.W.2d 640 (Tex. Civ. App. - San Antonio 1963, writ ref'd n.r.e.), which explained that where the term "person" designates the party whose property is to be protected it includes all public or private corporations, but where it identifies the party against whom a violation is charged it is strictly construed. The opinion acknowledged a contrary example in Gates v. City of Dallas, 704 S.W.2d 737 (Tex. 1986), where a provision for attorney's fees after delayed payment of a valid contract claim against a "corporation" was found applicable to municipal corporations.

The opinion then addressed the statutory definitions of "person." The Code Construction Act, Government Code section 311.005, provides that "person" includes a "government or governmental subdivision or agency" unless the context requires otherwise. But that Act does not apply to the construction of civil statutes. Gov't Code § 311.002. Section 312.011 of the Government Code applies, per section 312.001, to the construction of civil statutes such as article 1436c, and it provides simply that the word "person" in such statutes "includes a corporation." A county's status as a political entity has been characterized by the courts, in contrast to a municipal corporation, as that of a "quasi-corporation." See, e.g., City of Sherman v. Shobe, 58 S.W. 949 (Tex. 1900); Heigel v. Wichita County, 19 S.W. 562 (Tex. 1892). The opinion did not think the Legislature would have intended to include counties as subject to liability under article 1436c by use of the term "corporation."

The opinion also rejected an inference from the statute's exemptions. Section 2 provides that the statute does not apply to the construction, reconstruction, operation, or maintenance of certain electrical or communication circuits by an "authorized person," and section 1(3)(B) defines "authorized person" to include employees of state, county, or municipal agencies having authorized circuit construction on a power company's poles or structures. The AG did not read this exemption of certain county employees to imply that counties, though not specifically exempted, are liable under the statute. On its face the article's safety directives and liability provisions apply only to a "person, firm, corporation, or association," and the opinion discerned no legislative intent that this language includes counties.

Finally, the opinion cautioned that it did not mean counties can never be held liable for damages arising from county activities in connection with high voltage electric lines. The Texas Tort Claims Act defines "governmental units" to include counties. Civ. Prac. & Rem. Code § 101.001(2)(B). Section 101.021 provides that a governmental unit is liable for property damage, personal injury, and death proximately caused by the wrongful act, omission, or negligence of an employee acting in the scope of employment if it arises from the operation or use of a motor-driven vehicle or equipment and the employee would be personally liable, and for personal injury and death caused by a condition or use of tangible personal or real property if the unit would be liable were it a private person. Whether particular county activities fall within the Tort Claims Act involves questions of fact the opinion process cannot resolve.

Citations

Constitutional and statutory authority:

• V.T.C.S. art. 1436c (safety near high voltage overhead lines), §§ 1(3)(B), 2, 7
• V.T.C.S. art. 7426 (former antitrust statute, repealed 1967; see now Bus. & Com. Code §§ 15.01 et seq.)
• Bus. & Com. Code §§ 15.03, 15.10 (defining "person" to include municipal corporations, as amended 1983)
• Government Code § 311.002, § 311.005 (Code Construction Act)
• Government Code § 312.001, § 312.011 (construction of civil statutes)
• Civ. Prac. & Rem. Code § 101.001(2)(B), § 101.021 (Texas Tort Claims Act)

Cases cited:

• State v. Central Power & Light Co., 161 S.W.2d 766, 767 (Tex. 1942)
• City of Houston v. Renault, Inc., 431 S.W.2d 322 (Tex. 1968)
• City of Corpus Christi v. Atlantic Mills Servicing Corp., 368 S.W.2d 640 (Tex. Civ. App. - San Antonio 1963, writ ref'd n.r.e.)
• Gates v. City of Dallas, 704 S.W.2d 737 (Tex. 1986)
• City of Sherman v. Shobe, 58 S.W. 949 (Tex. 1900)
• Heigel v. Wichita County, 19 S.W. 562 (Tex. 1892)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1062
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1062.pdf

Original opinion text

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

June 21, 1989

Mr. Charles Brack
Chambers County Attorney
Mills, Shirley, Eckel & Bassett
P. O. Box 1943
Galveston, Texas 77553

Opinion No. JM-1062

Re: Applicability to governmental bodies of V.T.C.S. article 1436c, relating to the safety of individuals who work in proximity to high voltage electrical lines (RQ-1718)

Dear Mr. Brack:

Article 1436c, V.T.C.S., provides that "no person, firm, corporation, or association" shall, without having taken specified safety precautions, perform activities, erect structures, or handle or store various items within a stated proximity to high voltage overhead lines, or operate certain equipment. Section 7 of the article provides:

(a) Every person, firm, corporation, or association and every agent or employee of such person, firm, corporation, or association who violates any of the provisions of this Act shall be fined not less than $100, nor more than $1,000 or confined in jail for not more than one year or both.

(b) If a violation of this Act results in physical or electrical contact with any high voltage overhead line, the person, firm, corporation, or association violating the provisions of this Act shall be liable to the owner or operator of such high voltage line for all damage to such facilities and for all liability incurred by such owner or operator as a result of any such contact.

We understand you to ask whether article 1436c is applicable to counties so as to operate as a waiver of the county's governmental immunity for purposes of county liability under section 7. We conclude that a county is not a "person, firm, corporation, or association" within the meaning of article 1436c and thus that a county is not subject to liability under the provisions of that article.

The Texas Supreme Court in State v. Central Power & Light Co., 161 S.W.2d 766, 767 (Tex. 1942) concluded that the language in the former antitrust statute, V.T.C.S. article 7426, defining a "trust" as "a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them" for specified purposes, did not include municipal corporations. Noting that the statute was penal in nature, the court opined that "if the Legislature had intended to visit such severe penalties on municipalities, it would have used more apt language to describe them." Id. at 768.1 See also City of Houston v. Renault, Inc., 431 S.W.2d 322 (Tex. 1968) ("statute making it unlawful for any person, firm or private corporation to divert natural flow of surface waters or to impound same in such manner as to damage property of another does not apply to municipal corporations"); City of Corpus Christi v. Atlantic Mills Servicing Corp., 368 S.W.2d 640 (Tex. Civ. App. - San Antonio 1963, writ ref'd n.r.e.) ("if the term 'person' is used to designate the party whose property is intended to be protected, the term includes all public or private corporations; if it identifies the party against whom a violation is charged, it is 'strictly construed'"). But see Gates v. City of Dallas, 704 S.W.2d 737 (Tex. 1986) (discerning legislative intent to make provision for attorney's fees after delayed payment of valid claim against "corporation" based on written contract applicable to municipal corporations).

A provision of the Code Construction Act, Government Code section 311.005, provides that the word "person" includes "government or governmental subdivision or agency" unless the context requires a different definition. The Code Construction Act, however, does not apply to the construction of civil statutes. Gov't Code § 311.002. Section 312.011 of the Government Code applies, per section 312.001, to the construction of civil statutes such as article 1436c. Section 312.011 provides simply that the word "person" in such statutes "includes a corporation."

Notably, a county's status as a political entity has been characterized by the courts as being, in contrast to that of a municipal corporation, that of a "quasi-corporation." See, e.g., City of Sherman v. Shobe, 58 S.W. 949 (Tex. 1900); Heigel v. Wichita County, 19 S.W. 562 (Tex. 1892). We do not think that the legislature would have intended to include counties as being subject to liability under article 1436c by use of the term "corporation."

Nor do we think that the provisions of section 2 of article 1436c indicate that the legislature intended the article to apply to counties. Section 2 provides that the statute does not apply to the "construction, reconstruction, operation, or maintenance" of certain electrical or communication circuits, and associated systems, by an "authorized person." Section 1(3)(B) defines "authorized person" to include "employees of . . . state and county or municipal agencies having authorized circuit construction on the poles or the structures of" a power company, cooperative, city, or transportation or communication system. We do not think that this exemption of certain county employees implies that counties, even though not specifically exempted, are liable under the statute. On its face the article indicates that directives as to safety measures and provisions for liability apply only to a "person, firm, corporation, or association." We discern no legislative intent that the language "person, firm, corporation, or association" includes counties. We do not think that a county is a "person, firm, corporation, or association" within the meaning of the article 1436c.

Please note, however, that we do not intend to say that counties may not, on the appropriate facts, be held liable for damages arising from county activities in connection with high voltage electric lines. The Texas Tort Claims Act specifically defines "governmental units" to include counties. Civ. Prac. & Rem. Code § 101.001(2)(B). Section 101.021 provides that a governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Whether any particular county activities giving rise to damages fall within the scope of the provisions of the Tort Claims Act would ultimately, of course, involve questions of fact which we in the opinion process cannot resolve.

1. Article 7426 was repealed in 1967 by the act which adopted the Business and Commerce Code. Acts 1967, 60th Leg., ch. 785, at 2343. See now Bus. & Com. Code §§ 15.01 et seq. As amended in 1983, sections 15.03 and 15.10 now specifically define "person" as including municipal corporations. Acts 1983, 68th Leg., ch. 519, § 1, at 3010.

SUMMARY

A county is not a "person, firm, corporation, or association" within the meaning of V.T.C.S. article 1436c and is thus not subject to liability under the provisions of section 7 of that article.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General