Can a Texas school district run fiber-optic cable along a county road right-of-way without the county's permission?

TX AG Opinion GA-0793: Can a school district lay fiber in a county road right-of-way?

Plain-English summary

State Representative Garnet Coleman, chairing the House Committee on County Affairs, asked about a dispute between the Weslaco Independent School District and Hidalgo County. The district was wiring all its campuses with fiber-optic connectivity. Campuses inside the City of Weslaco were connected, but campuses in the city's extraterritorial jurisdiction, located in unincorporated parts of Hidalgo County, were not. The district wanted to run fiber-optic cable in the rights-of-way of county roads to reach them, and it took the position that it could do so for free, paying only the one-time cost of installing the cable. The county refused, saying it lacked authority to grant the district that access. The question was whether a school district has the authority to access and use a county road right-of-way to install fiber-optic cable.

The Attorney General concluded that it does not. An independent school district has only the powers the law expressly gives it or that are necessarily implied as incidents of those express powers. Nothing in the Education Code authorizes a district to access and use a county road right-of-way for cable, and the opinion found no implied authority either. Looking beyond the Education Code, the Attorney General noted that the Legislature has granted road right-of-way rights to specific entities by name: telephone and telegraph corporations, gas corporations, electric utilities, cable-television providers, and water districts and water supply corporations each have their own statute. There is no comparable provision for school districts.

That silence mattered because Texas courts construe road-access statutes strictly. The opinion pointed to decisions holding that a statute letting a power company place lines "across" roads did not let it place lines "along" them, and that a mining company not chartered to run telephone lines became a trespasser when it strung wire over public highways. Reading those cases together, an entity cannot place its communication equipment in a county road right-of-way without express statutory authority, and school districts lack that authority. The Attorney General added one practical note: a district is not necessarily shut out, because it can still try to acquire an easement in the county right-of-way under Local Government Code section 272.001. That route depends on a transaction with the county, not on a unilateral right to enter.

Currency note

This opinion was issued in 2010. 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 Utilities Code, Water Code, and Local Government Code provisions cited here may have been amended since 2010, and the Legislature could have added or changed authority for school districts or other entities to use public road rights-of-way. Confirm the current statutes before relying on anything below.

Who this opinion affected (as of 2010)

School districts: The opinion told them they had no freestanding statutory right to enter and use county road rights-of-way for fiber-optic cable. To reach campuses across county roads, a district would have to acquire an easement from the county under Local Government Code section 272.001 rather than claim a right of access.

Counties: The opinion supported a county's position that it was not required to grant a school district free access to its road rights-of-way for cable, because no statute conferred that right on the district.

Telephone, utility, cable, and water entities: The opinion described, without disturbing, the existing statutes that do grant these named entities the right to place facilities in public roads, drawing the contrast that explained why school districts were treated differently.

Common questions

Why couldn't the school district just use the county road like a utility company?
Because the Legislature granted road right-of-way rights entity by entity. Telephone, gas, electric, cable, and water providers each have a specific statute. The opinion found no equivalent statute for school districts, and it would not read one in.

Did the opinion leave the district any way to get its cable across the county roads?
Yes. It said a district is not foreclosed from acquiring an easement in the county right-of-way under Local Government Code section 272.001. That is a negotiated property interest, not an automatic right of entry.

What happens if an entity puts equipment in a public road without authority?
The opinion cited older cases treating such an entity as a trespasser, reflecting the rule that road-access statutes are strictly construed and confer rights only on the entities they name.

Background and statutory framework

An independent school district possesses only those powers expressly conferred on it by law or implied as a necessary incident to the powers expressly given (Mesquite Indep. Sch. Dist. v. Gross, 67 S.W.2d 242, 245 (Tex. 1934); Harlingen Indep. Sch. Dist. v. C.R. Page & Bro., 48 S.W.2d 983, 986 (Tex. Comm'n App. 1932, judgm't adopted)). The opinion found no Education Code provision granting a district access to a county right-of-way for fiber-optic cable, and no such authority implied.

Turning to other statutes, the opinion observed that entitlement to easements in public roads exists only when the Legislature expressly authorizes it (Hill Farm, Inc. v. Hill County, 436 S.W.2d 320, 323 (Tex. 1969)). Utility Code section 181.082 lets a telephone or telegraph corporation install a facility along, on, or across a public road; section 181.005 addresses gas corporations; section 181.042 gives electric utilities the right to operate lines over and along a state highway and a county road; and section 181.102(a) covers cable-television providers in unincorporated areas. Water Code section 49.220 grants districts and water supply corporations rights-of-way within and across public roads, with "district" defined by section 49.001(a)(1). The leading case held that a political subdivision could not deny a telephone company's statutory right to use public roads (City of Brownwood v. Brown Tel. & Tel. Co., 157 S.W. 1163, 1165 (Tex. 1913); see also Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Commc'n Corp., 49 S.W.3d 520, 524, 530 (Tex. App.—Corpus Christi 2001, pet. denied)). No similar provision exists for school districts.

Texas courts construe these statutes strictly. A statute authorizing an electric corporation to place lines "across" public roads did not authorize lines "along" the roads (Inc. Town of Hempstead v. Gulf States Utils. Co., 206 S.W.2d 227, 230 (Tex. 1947)), and a mining company not chartered to maintain telecommunications lines could not place private telephone lines over public highways and would be treated as a trespasser (Acme Cement Plaster Co. v. Am. Cement Plaster Co., 167 S.W. 183, 184-85 (Tex. Civ. App.—Amarillo 1914, no writ); Roaring Springs Town-site Co. v. Paducah Tel. Co., 164 S.W. 50, 53 (Tex. Civ. App.—Amarillo 1914), aff'd, 212 S.W. 147 (Tex. 1919)). Because school districts lack express statutory authority, the district was not entitled to access a county road right-of-way to install fiber-optic cable, though it could seek an easement under Local Government Code section 272.001(a), (b)(5).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 42.021(a), 272.001(a), (b)(5)
• Tex. Util. Code Ann. §§ 181.005, 181.042, 181.081(1), 181.082, 181.102(a)
• Tex. Water Code Ann. §§ 49.001(a)(1), 49.220

Cases:

• Mesquite Indep. Sch. Dist. v. Gross, 67 S.W.2d 242 (Tex. 1934)
• Harlingen Indep. Sch. Dist. v. C.R. Page & Bro., 48 S.W.2d 983 (Tex. Comm'n App. 1932, judgm't adopted)
• Hill Farm, Inc. v. Hill County, 436 S.W.2d 320 (Tex. 1969)
• Tex. Elec. Ry. Co. v. Neale, 252 S.W.2d 451 (Tex. 1952)
• City of Brownwood v. Brown Tel. & Tel. Co., 157 S.W. 1163 (Tex. 1913)
• Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Commc'n Corp., 49 S.W.3d 520 (Tex. App.—Corpus Christi 2001, pet. denied)
• Inc. Town of Hempstead v. Gulf States Utils. Co., 206 S.W.2d 227 (Tex. 1947)
• Acme Cement Plaster Co. v. Am. Cement Plaster Co., 167 S.W. 183 (Tex. Civ. App.—Amarillo 1914, no writ)
• Roaring Springs Town-site Co. v. Paducah Tel. Co., 164 S.W. 50 (Tex. Civ. App.—Amarillo 1914), aff'd, 212 S.W. 147 (Tex. 1919)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0793
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0793.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

August 26, 2010

The Honorable Garnet F. Coleman
Chair, Committee on County Affairs
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0793

Re: Whether a school district may access and use a county's right-of-way to install fiber optic cable (RQ-0818-GA)

Dear Representative Coleman:

You state that the Weslaco Independent School District (the "WISD") is providing fiber optic connectivity to all campuses and administrative offices within the district. All WISD campuses and offices within the City of Weslaco's boundaries are connected, but the campuses located in Weslaco's extraterritorial jurisdiction (ETJ) are not. Request Letter at 1. The city's ETJ is located in Hidalgo County, and the county has refused WISD's request for access to the rights-of-way of county roads to install fiber-optic cable, claiming that it does not have authority to grant the school district such access. Id. You ask whether a school district has authority to access and use a county's right-of-way to install fiber-optic cable to serve all schools in the district. Id. The brief submitted by WISD maintains that the school district is entitled to access the county right-of-way for this purpose. See WISD Brief at 3-4 (referring to "WISD's right to access" the county road right-of-way). It also assumes that it will not pay the county for use of its road rights-of-way. See WISD Brief at 2-3 (stating that if the district has access to the right-of-way, its only expenditure would be the one-time cost of installing the fiber-optic cable). We accordingly consider whether a school district is entitled to access the county road right-of-way to install fiber-optic cable. [Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).] [Footnote 2: See TEX. LOC. GOV'T CODE ANN. § 42.021(a) (Vernon 2008) (describing extraterritorial jurisdiction).] [Footnote 3: The term "right-of-way" is sometimes used to mean a party's right to pass over a tract of land, and it is also used to describe the strip of land on which a road is constructed. See Tex. Elec. Ry. Co. v. Neale, 252 S.W.2d 451, 454 (Tex. 1952) (addressing railroad right-of-way). In this request, "right-of-way" means the strip of land on which a road is constructed. See generally Request Letter; Brief from WISD at 3 (Oct. 9, 2009) (on file with the Opinion Committee) [hereinafter WISD Brief].]

An independent school district possesses only those powers expressly conferred on it by law or implied as a necessary incident to the powers expressly given. See Mesquite Indep. Sch. Dist. v. Gross, 67 S.W.2d 242, 245 (Tex. 1934); Harlingen Indep. Sch. Dist. v. C.R. Page & Bro., 48 S.W.2d 983, 986 (Tex. Comm'n App. 1932, judgm't adopted). The briefs submitted for this opinion request have not directed us to any Education Code provision expressly authorizing an independent school district to access and use a county's right-of-way to install fiber-optic cable and we have found none. Nor do we find such authority implied as necessary to expressly granted powers.

We next turn to statutes outside of the Education Code as a possible source of authority. A review of the statutes granting easements in public roads to certain entities indicates that such entitlement exists only when expressly authorized by the Legislature. See generally Hill Farm, Inc. v. Hill County, 436 S.W.2d 320, 323 (Tex. 1969) (stating that "responsible officials may, within the limits of the power vested in them by the Legislature, authorize the use of the [road] subsurface for sewers, pipelines and other methods of transmission and communication that serve the public interest") (emphasis added). For example, Utility Code section 181.082, first enacted in 1874, 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." TEX. UTIL. CODE ANN. § 181.082 (Vernon 2007); see also id. § 181.081(1) (defining "facility"). The Legislature has adopted similar provisions for other entities. See id. §§ 181.005 (Vernon Supp. 2009) (gas corporation has the right to lay and maintain lines over and across a public road, subject to compliance with statutory conditions); 181.042 (Vernon 2007) ("An electric utility has the right to construct, maintain, and operate lines over, under, across, on, or along a state highway [and a] county road."); 181.102(a) ("person in the business of providing community antenna or cable television service to the public" in an unincorporated area may install and maintain "equipment through, under, along, across, or over a utility easement, a public road, an alley, or a body of public water"). Under Water Code chapter 49, "[a]ll districts or water supply corporations are given rights-of-way within, along, under, and across all public, state, county, city, town, or village roads, highways, and rights-of-way." TEX. WATER CODE ANN. § 49.220 (Vernon 2008). The leading case addressing the rights granted under such statutes determined that a political subdivision could not deny a telephone company's right under a predecessor of section 181.082 to use public roads and streets. See City of Brownwood v. Brown Tel. & Tel. Co., 157 S.W. 1163, 1165 (Tex. 1913). See also Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Commc'n Corp., 49 S.W.3d 520, 524, 530 (Tex. App.—Corpus Christi 2001, pet. denied) (citing City of Brownwood for telephone company's right under Utilities Code section 181.082 to install underground fiber optic cable along a public roadway). There is no similar provision for school districts. [Footnote 4: See An Act Concerning Private Corporations, 14th Leg., R.S., ch. XCVII, § 51, 1874 Tex. Gen. Laws 120, 132 (authorizing telegraph companies to place fixtures "along, upon and across any of the public roads, streets, and waters of this State") (earliest predecessor of Utility Code section 181.082).] [Footnote 5: For purposes of this Water Code provision, "'[d]istrict' means any district or authority created by authority of either Sections 52(b)(1) and (2), Article III, or Section 59, Article XVI, Texas Constitution," subject to specific exceptions. TEX. WATER CODE ANN. § 49.001(a)(1) (Vernon 2008).]

The absence of an express provision granting school districts the right to use public road rights-of-way is particularly significant because Texas courts have strictly construed statutes authorizing corporations to place fixtures in a public road right-of-way. Where a statute authorized an electric power corporation to place lines "across" public roads, the Texas Supreme Court determined that the statute did not authorize the corporation to place lines "along" the roads. See Inc. Town of Hempstead v. Gulf States Utils. Co., 206 S.W.2d 227, 230 (Tex. 1947) (addressing predecessor of Utilities Code section 181.042). Another judicial decision determined that a mining company, which was not chartered to construct and maintain telecommunications lines, could not place its private telephone lines over public highways. See Acme Cement Plaster Co. v. Am. Cement Plaster Co., 167 S.W. 183, 184-85 (Tex. Civ. App.—Amarillo 1914, no writ). The court stated that the predecessor of section 181.082 authorized only telephone corporations to place telephone lines over public highways, and any other entity that did so should be treated as a trespasser. Id. at 184 (quoting Roaring Springs Town-site Co. v. Paducah Tel. Co., 164 S.W. 50, 53 (Tex. Civ. App.—Amarillo 1914), aff'd, 212 S.W. 147 (Tex. 1919)). These judicial decisions indicate that an entity is not entitled to place its communication equipment in a county road right-of-way absent express statutory authority. Because school districts lack such express statutory authority, the WISD is not entitled to access a county road right-of-way to install fiber-optic cable in the right-of-way.

A school district is, however, not necessarily foreclosed from acquiring an easement in the county right-of-way for the purpose of installing fiber optic cable. See TEX. LOC. GOV'T CODE ANN. § 272.001(a), (b)(5) (Vernon 2005).

SUMMARY

Because no statute grants school districts the right to access and use county road rights-of-way to install fiber-optic cable, a school district is not entitled to use county road rights-of-way for that purpose.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee