Could a Texas cable television provider be reimbursed for moving facilities displaced by interstate highway construction even without a property interest in the old location?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-105: Cable Television Facility Relocation Costs
Plain-English summary
JM-105 concluded that a community antenna or cable television provider furnished a communications service within article 6674w-4. The provider therefore could be reimbursed for adjusting or relocating facilities when interstate highway construction required the move.
"We conclude that a community antenna or cable television service engages in the business of furnishing communications service and thus, its cost of relocation may be reimbursed under article 6674w-4."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf"A person in the business of providing a community antenna or cable television service to the public may be reimbursed under article 6674w-4, V.T.C.S., for the cost of adjustment or relocation of the facilities where such relocation or adjustment is necessitated by interstate highway construction."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
The request specifically described a provider without a property interest in the facilities' existing location. The opinion's answer did not make reimbursement turn on such an interest.
"Can a person in the business of providing a community antenna or cable television service to the public be reimbursed under article 6674w-4, V.T.C.S., for the cost of adjustment or relocation of the facilities where such relocation or adjustment is necessitated by Interstate Highway construction when such person has no property interest in the existing location of such facilities?"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
Currency note
This opinion was issued in 1983. 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
Why did a cable television provider count as a utility under the statute?
Article 6674w-4 defined utility to include publicly, privately, and cooperatively owned entities furnishing communications service. JM-105 treated cable television as that kind of service.
"The statute defines 'utility' to include publicly, privately, and cooperatively owned utilities engaged in furnishing telephone, telegraph, communications, electric, gas, heating, water, railroad, storm sewer, sanitary sewer or pipeline service."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf"In our opinion, it is clear that a community antenna or cable television service engages in the business of 'furnishing communications service.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
What highway projects did article 6674w-4 cover?
The quoted statute addressed utility relocations required by improvements to highways established as part of the National System of Interstate and Defense Highways, including urban extensions, when federal participation was available.
"Whenever the relocation of any utility facilities is necessitated by the improvement of any highway in this State which has been or may hereafter be established by appropriate authority according to law as a part of the National System of Interstate and Defense Highways, including extensions thereof within urban areas, such relocation shall be made by the utility at the cost and expense of the State of Texas provided that such relocation is eligible for Federal participation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
Did Senate Bill No. 643 make the cable provider bear these interstate relocation costs?
No. JM-105 said that bill required a utility to pay for repairing certain damaged state highways or county roads in unincorporated areas, while article 6674w-4 applied to the interstate highway system.
"This bill requires a utility which damages a road to 'bear the expense of repairing' it. It applies only to 'unincorporated area[s] of the state' and to 'state highway[s] or county road[s].'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf"Article 6674w-4, on the other hand, is applicable not to state highways, but only to those highways designated as part of the interstate highway system."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
Background and legal framework
The federal statute allowed federal funds to reimburse a state that paid eligible utility-relocation costs for federal-aid highway projects. It left state law and state contracts as limits on such reimbursement.
"When a State shall pay for the cost of relocation of utility facilities necessitated by the construction of a project on the Federal-aid primary or secondary systems or on the Interstate System, including extensions thereof within urban areas, Federal funds may be used to reimburse the State for such cost in the same proportion as Federal funds are expended on the project."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf"Federal funds shall not be used to reimburse the State under this section when the payment to the utility violates the law of the State or violates a legal contract between the utility and the State."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
JM-105 read that federal provision as allowing Texas to determine which utility costs it would reimburse.
"Thus, the federal statute apparently permits the states to determine which 'utility' costs will be reimbursed."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
Holding
"A person in the business of providing a community antenna or cable television service to the public may be reimbursed under article 6674w-4, V.T.C.S., for the cost of adjustment or relocation of the facilities where such relocation or adjustment is necessitated by interstate highway construction."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0105
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0105.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
December 29, 1983
Mr. Mark G. Goode
Engineer-Director
Department of Highways and Public Transportation
P. O. Box 5075
Austin, Texas 78763
Opinion No. JM-105
Re: Whether a community antenna or television service may be reimbursed under article 6674w, V.T.C.S., for the cost of relocation of its facilities where such relocation is necessitated by highway construction
Dear Mr. Goode:
You have asked the following question:
Can a person in the business of providing a community antenna or cable television service to the public be reimbursed under article 6674w-4, V.T.C.S., for the cost of adjustment or relocation of the facilities where such relocation or adjustment is necessitated by Interstate Highway construction when such person has no property interest in the existing location of such facilities?
Article 6674w-4 provides, in pertinent part:
Whenever the relocation of any utility facilities is necessitated by the improvement of any highway in this State which has been or may hereafter be established by appropriate authority according to law as a part of the National System of Interstate and Defense Highways, including extensions thereof within urban areas, such relocation shall be made by the utility at the cost and expense of the State of Texas provided that such relocation is eligible for Federal participation.
The statute defines "utility" to include
publicly, privately, and cooperatively owned utilities engaged in furnishing telephone, telegraph, communications, electric, gas, heating, water, railroad, storm sewer, sanitary sewer or pipeline service.
The relevant federal statute, 23 U.S.C. section 123, provides:
(a) When a State shall pay for the cost of relocation of utility facilities necessitated by the construction of a project on the Federal-aid primary or secondary systems or on the Interstate System, including extensions thereof within urban areas, Federal funds may be used to reimburse the State for such cost in the same proportion as Federal funds are expended on the project. Federal funds shall not be used to reimburse the State under this section when the payment to the utility violates the law of the State or violates a legal contract between the utility and the State. Such reimbursement shall be made only after evidence satisfactory to the Secretary shall have been presented to him substantiating the fact that the State has paid such cost from its own funds with respect to Federal-aid highway projects for which Federal funds are obligated subsequent to April 16, 1958, for work, including relocation of utility facilities.
(b) The term "utility", for the purposes of this section, shall include publicly, privately, and cooperatively owned utilities.
Thus, the federal statute apparently permits the states to determine which "utility" costs will be reimbursed. As a result, if a community antenna or cable television service engages in the business of "furnishing . . . communications . . . service," its cost of relocation may be reimbursed under article 6674w-4.
In our opinion, it is clear that a community antenna or cable television service engages in the business of "furnishing communications service." "Communication" is defined in article 9019, V.T.C.S., a statute which imposes penalties for interception of communication, as
speech uttered by any person and any information including speech transmitted in whole or in part with the aid of wire or cable.
In Independent Theatre Owners v. Arkansas Public Service Comm'n, 361 S.W.2d 642 (Ark. 1962), the court held that a television cable service provides a telephonic or telegraphic communication service. See Attorney General Opinion C-702 (1966). We conclude that a community antenna or cable television service engages in the business of furnishing communications service and thus, its cost of relocation may be reimbursed under article 6674w-4.
It has been suggested that Senate Bill No. 643, Acts 1983, Sixty-eighth Legislature, chapter 556, at 3234, requires a different result. We disagree. This bill requires a utility which damages a road to "bear the expense of repairing" it. It applies only to "unincorporated area[s] of the state" and to "state highway[s] or county road[s]." As to such highways, the person providing the utility service must "bear the cost of repairing a state highway or county road damaged by a relocation." Article 6674w-4, on the other hand, is applicable not to state highways, but only to those highways designated as part of the interstate highway system.
SUMMARY
A person in the business of providing a community antenna or cable television service to the public may be reimbursed under article 6674w-4, V.T.C.S., for the cost of adjustment or relocation of the facilities where such relocation or adjustment is necessitated by interstate highway construction.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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