Can a Texas county require a permit or set a minimum burial depth when a phone company buries cable along a county road, and who pays if the county cuts it?

Plain-English summary

Caldwell County asked, through its district attorney, about its power over a phone company that buries cable in the rights-of-way along county roads. Three questions: can the county require a permit before the company buries the cable, can the county set and enforce a minimum burial depth, and if neither, who pays to repair or rebury a cable the county disturbs or cuts while improving its roads? The questions came up because of AT&T's reading of Utilities Code section 181.082, so the opinion is limited to a corporation subject to that section.

On permits and depth, the AG said no. Section 181.082 gives telephone and telegraph corporations broad power to install facilities (including underground cable) along, on, or across public roads, "in a manner that does not inconvenience the public in the use of the road." Texas courts have read this as a strong, state-level right that local governments cannot deny, reflecting a public policy of encouraging communication systems. The right is not unlimited (a company cannot inconvenience the public's use of the road, and installations remain subject to reasonable regulation), but the key point for the county is which government holds the regulatory authority. Chapter 181 hands counties supervisory or location-designation power over some utilities (gas, electric, cable), but for telephone and telegraph corporations it expressly gives that authority to municipalities, not counties. Because no provision in Chapter 181 authorizes a county to set permitting or minimum-depth rules for these corporations, the county cannot impose them. The AG noted earlier opinions (JM-489 and H-1015) reaching the same conclusion.

On the cost question, the AG explained the framework but said the answer turns on facts. Counties have governmental immunity unless a statute waives it. The Underground Facility Damage Prevention and Safety Act requires excavators to call a notification center so facilities can be marked, but it does not waive liability for failing to give notice. The Texas Tort Claims Act would likely govern. It waives a county's immunity for property damage only when the damage is proximately caused by a county employee's wrongful act, omission, or negligence acting within the scope of employment, and the damage "arises from the operation or use of a motor-driven vehicle or motor-driven equipment," with the employee personally liable under Texas law. Whether a particular incident meets those conditions, including whether merely disturbing a buried cable is "damages," is a fact question outside the opinion process.

What this means for you

If you are a county official or county judge

Based on this opinion, your county cannot require a telephone or telegraph corporation to obtain a permit, or meet a county-set minimum burial depth, before burying cable in a county road right-of-way. Chapter 181 gives that regulatory authority to municipalities, not counties. The opinion does not address powers a county may have under other statutes outside Chapter 181.

If you are a county public-works or road department

The opinion confirms these corporations have a broad statutory right to install cable in road rights-of-way, subject to not inconveniencing public use of the road and to reasonable regulation by the proper governmental entity. Before excavating, the Underground Facility Damage Prevention and Safety Act's notification-center process applies, though the opinion notes that statute does not itself waive liability.

If you are a telephone or telegraph corporation

The opinion reaffirms your broad power under section 181.082 to install facilities along public roads and that counties cannot impose permitting or minimum-depth requirements on you. Your installation still cannot inconvenience the public's use of the road and remains subject to reasonable regulation by the appropriate entity.

If you are weighing who pays for a cut cable

The opinion lays out the Tort Claims Act test but stops short of an answer: a county is not liable unless property damage is proximately caused by a county employee's negligence within the scope of employment and arises from a motor-driven vehicle or equipment. Whether that is met, and whether disturbing a cable is "damages," is a fact question for a court, not the AG.

Common questions

Q: Can a Texas county require a permit to bury phone cable along a county road?
A: No. The AG concluded Chapter 181 of the Utilities Code does not authorize a county to impose permitting requirements on a telephone or telegraph corporation burying cable in a county road right-of-way.

Q: Can the county set a minimum burial depth?
A: No. The AG reached the same conclusion for minimum-depth requirements. That regulatory authority over these corporations is given to municipalities, not counties.

Q: Why can cities regulate this but not counties?
A: The AG pointed to section 181.089(a)(1), which expressly authorizes municipalities to adopt regulations governing such corporations, including the location of their facilities. Nothing in Chapter 181 gives counties that power.

Q: If the county cuts a buried cable, does the county have to pay to fix it?
A: It depends. The AG explained a county is immune unless the Tort Claims Act waives it, which generally requires negligence by a county employee arising from a motor-driven vehicle or equipment. Whether that applies is a fact question beyond the opinion.

Q: Does calling the line-locate notification center change who is liable?
A: The notification statute requires excavators to call so facilities can be marked, but the AG noted it contains no waiver of liability for failing to give proper notice.

Background and statutory framework

Chapter 181 of the Utilities Code addresses miscellaneous powers and duties of utilities (Tex. Util. Code §§ 181.001–.903), and Subchapter E applies to telephone and telegraph corporations (§§ 181.081–.089). Section 181.082 lets such a corporation "install a facility . . . along, on, or across a public road . . . in a manner that does not inconvenience the public in the use of the road," and courts have read this to authorize underground installation (Harlingen Irrigation Dist. Cameron Cnty. No. 1 v. Caprock Commc'ns Corp., 49 S.W.3d 520, 531 (Tex. App.—Corpus Christi 2001, pet. denied)). The provision expresses a public policy of encouraging communication systems, and "local governments cannot deny this right" (Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 548 (5th Cir. 2003)). The right has limits: it cannot inconvenience public use, which is subservient to the road's transportation purpose (Sw. Bell Tel., L.P. v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d 59, 63 (Tex. 2009)), and remains subject to reasonable regulation by the proper entity (State v. City of Austin, 331 S.W.2d 737, 741 (Tex. 1960); 43 Tex. Admin. Code §§ 21.32, 21.37(a)).

A commissioners court has only the powers the Constitution or Legislature confers plus necessary implied powers (Tex. Const. art. V, § 18(b); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)). Reading Chapter 181 for legislative intent (Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002); TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)), the AG observed the chapter gives counties supervisory or location authority over certain utilities (gas, electric, cable; §§ 181.024, .044, .103) and relocation authority for road improvements (§§ 181.025(b), .046(b), .104(b)), but none of these covers telephone and telegraph corporations. Municipalities, by contrast, are expressly authorized to regulate such corporations, including facility location (§ 181.089(a)(1)). The AG concluded a county cannot impose permitting or minimum-depth requirements, consistent with prior opinions JM-489 (1986) and H-1015 (1977).

On liability, counties enjoy governmental immunity absent waiver (CKJ Trucking, L.P. v. City of Honey Grove, 581 S.W.3d 870, 875 (Tex. App.—Dallas 2019, pet. denied)). The Underground Facility Damage Prevention and Safety Act requires notice before excavation but waives no liability (Tex. Util. Code §§ 251.151(a), .157(a)). The Texas Tort Claims Act waives a county's immunity for property damage only when proximately caused by an employee's wrongful act, omission, or negligence within the scope of employment, arising from "the operation or use of a motor-driven vehicle or motor-driven equipment," with the employee personally liable (Tex. Civ. Prac. & Rem. Code § 101.021(1)). Such claims turn on negligence, proximate cause, and "damages" (City of Monahans v. Sw. Bell Tel. Co., 656 S.W.3d 738, 748 (Tex. App.—El Paso 2022, no pet.); Pioneer Nat. Gas Co. v. K & M Paving Co., 374 S.W.2d 214, 223 (Tex. 1963); Rattray v. City of Brownsville, 662 S.W.3d 860, 874 (Tex. 2023); Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 287 (Tex. 2022)), and any liability turns on fact questions beyond the opinion process.

Citations and references

Statutes:
- Tex. Util. Code § 181.082 — installation of telephone/telegraph facilities along public roads
- Tex. Util. Code § 181.089 — municipal regulation of such corporations
- Tex. Civ. Prac. & Rem. Code § 101.021 — Tort Claims Act waiver

Key cases:
- Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541 (5th Cir. 2003) — local governments cannot deny the right to install along public roads
- Harlingen Irrigation Dist. Cameron Cnty. No. 1 v. Caprock Commc'ns Corp., 49 S.W.3d 520 (Tex. App.—Corpus Christi 2001, pet. denied) — section 181.082 authorizes underground installation
- Rattray v. City of Brownsville, 662 S.W.3d 860 (Tex. 2023) — proximate cause under the Tort Claims Act

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0499
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2025/kp-0499.pdf

Original opinion text

September 15, 2025

The Honorable Fred H. Weber
Caldwell County Criminal District Attorney
1703 South Colorado Street, Box #5
Lockhart, Texas 78644

Opinion No. KP-0499
Re: Scope of county authority and liability involving utility cables buried along rights-of-way (RQ-0573-KP)

Dear Mr. Weber:

At the request of the Caldwell County Judge, you ask several questions about the scope of county authority and liability when a utility buries cable in county rights-of-way. Your first two questions ask whether a county may (1) require a utility to seek a permit from the county before burying cable in the rights-of-way of county roads, or (2) "specify and enforce a minimum depth requirement" for burial of such a cable. Request Letter at 1. If not, you then ask "what party bears the cost for repair and reburial of a cable disturbed and/or cut by the County in upgrading and improving County roads." Id. at 2. You tell us your questions are prompted by AT&T's position regarding Section 181.082 of the Texas Utilities Code. Id. at 1; see also TEX. UTIL. CODE § 181.082. Accordingly, we limit this opinion to a corporation subject to that section.

Section 181.082 of the Texas Utilities Code grants telegraph and telephone corporations broad powers to install their facilities within public road rights-of-way.

Chapter 181 of the Utilities Code addresses the miscellaneous powers and duties of a variety of utilities. TEX. UTIL. CODE §§ 181.001–.903. Subchapter E applies to telephone and telegraph corporations. Id. §§ 181.081–.089; see also id. § 181.081(2)–(3) (defining "telegraph corporation" and "telephone corporation"). Within that subchapter, section 181.082 provides that "[a] telephone or telegraph corporation may install a facility of the corporation along, on, or across a public road, a public street, or public water in a manner that does not inconvenience the public in the use of the road, street, or water." Id. § 181.082. Texas courts have interpreted this provision to authorize a corporation to install facilities underground. See, e.g., Harlingen Irrigation Dist. Cameron Cnty. No. 1 v. Caprock Commc'ns Corp., 49 S.W.3d 520, 531 (Tex. App.—Corpus Christi 2001, pet. denied) (concluding a telecommunication company was entitled to install fiber optic cable underground along public rights-of-way). The term "'[f]acility' means a pole, pier, abutment, wire, or other fixture related to a telephone or magnetic telegraph line." TEX. UTIL. CODE § 181.081(1).

Section 181.082 expresses "the public policy of encouraging the construction of communication systems." Harlingen Irrigation, 49 S.W.3d at 533. This policy "favor[s] the use of public roads for communications facilities" as "construction of new housing and new roads requires the construction of new telephone lines." Id. If various entities are able "to impose restrictions on the construction of facilities along public roads, the extension of telephone service to areas of new construction would be greatly hampered." Id. Section 181.082 thus "grant[s] telephone companies broad powers to install their lines within the rights-of-ways of public roads" and "local governments cannot deny this right." Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 548 (5th Cir. 2003).

This right is not, however, "without limits." See Harlingen Irrigation, 49 S.W.3d at 531. Section 181.082 expressly prohibits the installation of a facility in a manner that "inconvenience[s] the public in the use of the road." TEX. UTIL. CODE § 181.082; see also Sw. Bell Tel., L.P. v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d 59, 63 (Tex. 2009) (explaining the use of roads by utilities to lay lines is subservient to the main purpose of the road, which is travel and transportation). Courts have further recognized that an installation may be subject to reasonable regulations of a governmental entity. See Harlingen Irrigation, 49 S.W.3d at 531; Sw. Bell Tel. Co. v. Bigler, 563 S.W.2d 851, 853 (Tex. App.—San Antonio 1978, no writ); see also, e.g., State v. City of Austin, 331 S.W.2d 737, 741 (Tex. 1960) ("While public utilities may use [roads and streets] for laying their lines, such use is subject to reasonable regulation by either the state, the county or the city, as the case may be."); 43 TEX. ADMIN. CODE §§ 21.32 (prescribing "the minimum requirements for the accommodation, method, materials, and location for the installation, adjustment, and maintenance of utility facilities within the right of way of the state highway system"), .37(a) (requiring utility facility design to "be accomplished in a manner and to a standard acceptable to the" Texas Department of Transportation).

Your first two questions concern whether a county has authority to adopt regulations governing a telephone or telegraph corporation's installation of a facility in county road rights-of-way. Request Letter at 1. A county commissioners court may exercise those powers expressly given by either the Texas Constitution or the Legislature, together with implied powers necessary to carry out its express duties. See TEX. CONST. art. V, § 18(b); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). Because state law vests counties with a variety of authorities, we consider the law you reference, Chapter 181 of the Utilities Code, in assessing whether a county has the regulatory powers about which you ask.

Chapter 181 of the Utilities Code does not authorize a county to impose permitting or minimum-depth requirements on a telephone or telegraph corporation that buries cable in a county road right-of-way.

The "purpose in construing a statute is to determine the Legislature's intent." Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002). "We presume that the Legislature chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). "And if a statute is unambiguous, we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results." Id.

Chapter 181 grants counties various authorities. In relevant part, counties may supervise the installation or designate the appropriate location of certain utility facilities in the rights-of-way for public roads. See TEX. UTIL. CODE §§ 181.024 (relating to gas utilities), .044 (relating to electric utilities), .103 (relating to cable lines); see also, e.g., TEX. LOC. GOV'T CODE § 552.104(b)–(c) (relating to water lines); TEX. NAT. RES. CODE § 111.020(b)(3) (relating to pipeline, telegraph, and telephone lines installed by common carriers). Both sections 181.044 and 181.103, for example, require particular entities proposing to construct or install certain equipment in county road rights-of-way give the commissioners court advance notice of the proposal and authorize a commissioners court to designate the location where equipment may be constructed or installed. TEX. UTIL. CODE §§ 181.044 (pertaining to an electric utility's line), .103 (pertaining to community antenna or cable television providers installing equipment). Likewise, counties may require that some entities relocate facilities and equipment installed in rights-of-way when the county undertakes certain road improvements. See, e.g., TEX. UTIL. CODE §§ 181.025(b) (relating to gas facilities), .046(b) (relating to electric lines), .104(b) (relating to cable). Yet none of the foregoing authorizes a county to adopt permitting or minimum-depth regulations for telegraph and telephone corporations. To be sure, municipalities are expressly authorized to adopt regulations governing such corporations, including those relating to the "location of [their] facilities." Id. § 181.089(a)(1). But nothing in Chapter 181 authorizes a county to do so. Id. §§ 181.001–.903.

At bottom, Chapter 181 does not authorize a county to impose permitting or minimum-depth requirements on a telephone or telegraph corporation that buries cable in county road rights-of-way. See also, e.g., Tex. Att'y Gen. Op. Nos. JM-489 (1986) at 2 ("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[] . . . ."), H-1015 (1977) at 2 (examining predecessor statute and concluding "a telephone company is authorized to lay buried telephone lines within the right-of-way of a county road without the approval of the commissioners court").

A county would not be liable for the costs to repair and rebury a telephone or telegraph corporation's cable, under the Texas Tort Claims Act, unless property damage is proximately caused by the wrongful act, omission, or negligence of a county employee arising from motor-driven vehicles or equipment.

Your final question asks "what party bears the cost for repair and reburial of a cable disturbed and/or cut by the County in upgrading and improving County roads." Request Letter at 2. We understand your concern to be whether a county could be liable for the costs when a telephone or telegraph corporation's facility must be repaired or reburied because it is disturbed or cut while upgrading and improving a county road. Under the doctrine of governmental immunity, of course, political subdivisions "are not liable for the negligence of their employees absent a constitutional or statutory waiver of immunity." CKJ Trucking, L.P. v. City of Honey Grove, 581 S.W.3d 870, 875 (Tex. App.—Dallas 2019, pet. denied). With certain exceptions, the Underground Facility Damage Prevention and Safety Act requires "a person who intends to excavate" to "notify a notification center" which in turn allows an underground facility operator an opportunity to "mark the approximate location of its underground facilities" prior to the excavation. TEX. UTIL. CODE §§ 251.151(a), .157(a). But this statute contains "no waiver of liability for any failure to provide proper notice" before excavating. City of Houston v. Sw. Bell Tel. Co., No. 01-16-00734-CV, 2017 WL 3262131, at *6 (Tex. App.—Houston [1st Dist.] Aug. 1, 2017, no pet.) (mem. op.).

Instead, the Texas Torts Claim Act ("Act") would likely govern in the scenario you raise. See generally TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109. The Act waives immunity under specific circumstances and permits a person to sue state or local governments for specified damages. See id. § 101.025(a)–(b); see also TEX. GOV'T CODE § 311.005 (defining "[p]erson" to include a "corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity"). Relevant here, the Act does not waive the immunity of a county for property damage unless it is "proximately caused by the wrongful act or omission or the negligence of an employee" who is "acting within his scope of employment" so long as "the property damage[] . . . arises from the operation or use of a motor-driven vehicle or motor-driven equipment" and "the employee would be personally liable to the claimant according to Texas law." TEX. CIV. PRAC. & REM. CODE § 101.021(1).

Claims like that referenced in your request typically turn on negligence. See, e.g., City of Monahans v. Sw. Bell Tel. Co., 656 S.W.3d 738, 748 (Tex. App.—El Paso 2022, no pet.). To prove negligence under the Act, of course, a claimant must among other things "establish the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach." City of Houston, 2017 WL 3262131, at 3. A breach of duty may occur where "a party that makes 'an extraordinary use of the surface,' such as breaking up a portion of a road and excavating underneath it," fails to "make a reasonable inquiry as to the location of, and to avoid striking, underground utilities." Id. at 4 (citing Pioneer Nat. Gas Co. v. K & M Paving Co., 374 S.W.2d 214, 223 (Tex. 1963)). Two elements, cause in fact and foreseeability, must be considered in determining whether a "governmental employee's use or operation of the vehicle or equipment proximately caused the relevant [damage]." Rattray v. City of Brownsville, 662 S.W.3d 860, 874 (Tex. 2023). The Act does not define damages, and courts therefore interpret the term consistent with its plain meaning: "[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury." Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 287 (Tex. 2022) (alteration in original) (quoting BLACK'S LAW DICTIONARY (11th ed. 2019)). But we are aware of no precedent that concludes merely disturbing a buried cable, without more, would meet this definition. Cf., e.g., City of Taylor v. Lab'y Tops, Inc., No. 03–08–00357–CV, 2008 WL 5423037, at *2–3 (Tex. App.—Austin Dec. 31, 2008, no pet.) (mem. op.) (involving claim that prolonged exposure of a pipe proximately caused the ensuing property damage).

Ultimately, however, any purported liability of a county for alleged property damage turns on questions of fact that are beyond the scope of the opinion process. See Tex. Att'y Gen. Op. No. GA-0430 (2006) at 4.

S U M M A R Y

While Chapter 181 of the Texas Utilities Code authorizes counties to supervise the installation or designate the appropriate location of certain utility facilities in the rights-of-way for public roads, this chapter does not authorize a county to impose permitting or minimum-depth requirements on a telephone or telegraph corporation that buries cable in a county road right-of-way.

A county would not be liable for the costs to repair and rebury a telephone or telegraph corporation's cable, under the Texas Tort Claims Act, unless property damage is proximately caused by the wrongful act, omission, or negligence of a county employee and it arises from the operation or use of motor-driven vehicles or equipment. That determination, however, is a fact question beyond the scope of this opinion.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER, First Assistant Attorney General
LESLEY FRENCH, Chief of Staff
D. FORREST BRUMBAUGH, Deputy Attorney General for Legal Counsel
JOSHUA C. FIVESON, Chair, Opinion Committee
CHRISTY DRAKE-ADAMS, Assistant Attorney General, Opinion Committee