Could a Texas county avoid liability for damaging a telephone company's buried cable by adopting a resolution disclaiming responsibility?

Texas AG Opinion JM-489: County Damage to Buried Cable

Plain-English summary

Brazos County asked about liability after a county road crew damaged buried telephone cable while widening a public road. The county had previously adopted language saying it would "in no way be responsible" for damage to existing lines in the right-of-way. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

JM-489 declined to decide the county's actual liability or whether a contract existed because those issues required factual determinations. It did conclude that a county "may not unilaterally change the general law of liability applicable to the county" by resolution or otherwise. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

The opinion also said a county could not limit the statutory right of a telephone company to place cables in a county right-of-way as long as the company did not inconvenience the public's use of the road. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

Currency note

This opinion was issued in 1986. 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.

Common questions

Did JM-489 decide whether the county owed damages?

No. It said liability for the damaged cable involved factual determinations the opinion process could not decide. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

Could the county adopt a blanket no-liability rule for buried cable?

No. The opinion concluded that the county lacked power to change the general law of tort liability or immunity. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

Did the telephone company have a statutory right to use the road right-of-way?

Yes. JM-489 said article 1416 expressly granted telephone companies the right to lay lines along, on, and across public roads, subject to not inconveniencing public use. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

Could the Tort Claims Act apply to road-work damage?

The opinion said the act waived county immunity for property damage caused by negligence arising from motor vehicles or motor-driven equipment and observed that road-widening cable damage would often involve such equipment. It did not decide application to the specific facts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

Background and statutory framework

JM-489 identified possible theories of negligence, constitutional taking or damaging, and trespass. It also reviewed the Tort Claims Act's waiver for certain property damage involving motor vehicles or motor-driven equipment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

The opinion applied the rule that a commissioners court possessed only powers conferred expressly or by necessary implication and could contract only in the manner and for purposes authorized by statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

Citations and references

• Texas Constitution articles I, section 17, and V, section 18
• Civil Practice and Remedies Code sections 101.021 and 101.025
• article 1416, V.T.C.S.
• State v. Hale, 146 S.W.2d 731, 737 (Tex. 1941)
• Mountain States Telephone & Telegraph Co. v. Vowell Construction Co., 341 S.W.2d 148, 150 (Tex. 1960)
• Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex. 1976)
• Heldt v. Southwestern Bell Telephone Co., 482 S.W.2d 352, 355, 357 (Tex. Civ. App. - Corpus Christi 1972, no writ)
• Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)
• Galveston, H. & S.A. Railway Co. v. Uvalde County, 167 S.W.2d 305, 307 (Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0489
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0489.pdf

Original opinion text

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

The Attorney General of Texas

JIM MATTOX
Attorney General

May 6, 1986

Honorable James M. Kuboviak
Brazos County Attorney
Courthouse
Bryan, Texas 77853

Opinion No. JM-489

Re: Liability of a county for buried cable damaged during widening of a road

Dear Mr. Kuboviak:

You ask the following question:

What is the liability of a county with respect to buried cable in a county right-of-way that is damaged by the county during the widening of a public road?

The question was raised by the fact that a county commissioners court, in 1979, adopted at a meeting of the court what purports to be an agreement with a telephone company that, among other things, states that the county "will in no way be responsible for any damage that might occur to any existing lines in the right-of-way." A county work crew has damaged the telephone company's buried cables during road widening construction. The county suggests that the "agreement" that it adopted in 1979 is binding on the telephone company.

The liability of a county for damage caused by the county to cable buried in its right-of-way involves factual determinations which this office is not authorized to decide. See Attorney General Opinion JM-408 (1985). Also, we cannot decide the factual issues necessary to determine the existence of a contractual agreement, such as consideration and communication of an acceptance. We conclude, however, that a county, by resolution or otherwise, may not unilaterally change the general law of liability applicable to the county for the damage in question.

Tort liability is determined by the legislature and the courts in 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 liability under article I, section 17 of the Texas Constitution for taking, damaging, or destroying private property for public use. See State v. Hale, 146 S.W.2d 731, 737 (Tex. 1941). The Texas courts also have allowed recovery for the severance of telephone cables lawfully buried on public right-of-way on the theory of the law of trespass. See Mountain States Telephone & Telegraph Co. v. Vowell Construction Co., 341 S.W.2d 148, 150 (Tex. 1960).

Historically, a county avoided liability under the doctrine of sovereign immunity. See Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex. 1976). The 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 and Remedies Code §§ 101.021, 101.025. In most fact situations, damage to buried cable in a county right-of-way during the widening of a public road will involve the use of motor-driven vehicles or equipment. As indicated, we do not address whether the county has entered into, or could legally enter into, a contract in which the telephone company released a cause of action under the Tort Claims Act.

Article 1416, V.T.C.S., which applies to telephone as well as telegraph lines, expressly grants the telephone company the right to lay its lines along, upon, and across any public roads, streets, or waters of Texas, subject only to the restriction that it must be 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 cannot be denied by a county. See Heldt v. Southwestern Bell Telephone Co., 482 S.W.2d 352, 355, 357 (Tex. Civ. App. - Corpus Christi 1972, no writ); Attorney General Opinions M-1218 (1972); M-1008 (1969); O-2517 (1940).

It is well established that a county commissioners court possesses only the powers conferred either expressly or by necessary implication by the constitution and statutes of this state. See Tex. Const. art. V, § 18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). A county may contract only in the manner and for the purposes provided by statute. Galveston, H. & S.A. Railway Co. v. Uvalde County, 167 S.W.2d 305, 307 (Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.).

We are not aware of any statute that gives a 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 use of the roads, or that authorizes a county to suspend unilaterally the waiver of immunity to tort liability provided by the Texas Tort Claims Act. See Attorney General Opinions JM-432 (1986); H-1015 (1977).

SUMMARY

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

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General