Case Information
*1 The Attorney General of Texas December 29, 1983 JIM MATTOX
Attorney General Mr. Mark G. Goode Opinion No. JM-105 Supreme Court Building Engineer-Director P. 0. Box 12548 Austin, TX. 78711. 2548 Department of Highways and Re: Whether a community
512/475-2501 antenna or television service Public Transportation Telex 9101874-1367 P. 0. Box 5075 may be reimbursed under article Telecopier 512/475-0266 Austin, Texas 78763 bb74w, V.T.C.S., for the cost of relocation of its facilities 714 Jackson, Suite 700 where such relocation is Dallas, TX. 75202.4506 necessitated by highway con- 2141742.8944 struction 4824 Alberta Ave., Suite 160 Dear Mr. Goode: El Paso, TX. 79905.2793 9151533.3484
You have asked the following question:
,-I .Aous,cm, TX. 77002-3111 [71312235886] Texas, Suite 70-l Can a person in the business of providing a the public be reimbursed under article bb74w-4, V.T.C.S., for the cost of adjustment or relocation of the facilities where such relocaeion or 606 Broadway, Suite 312 adjustment is necessitated by Interstate Highway Lubbock, TX. 79401-3479 construction when such person has no property 8061747.5238 interest in the existing location of such facilities? 4309 N. Tenth. Suite B McAllen, TX. 78501-1885 Article bb74w-4 provides, in pertinent part: 5121682-4547
200 Main Plaza. Suite 400 San Antonio, TX. 78205.2797 [51212254191] hereafter be established by appropriate authority any highway in this State which has been or may facilities is necessitated by the improvement of Whenever the relocation of any utility according to law as a part of the National System An Equal Opfwriunityl of Interstate and Defense Highways, including Affirmative Action Employer 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, *2 Mr. Mark G. Goode - Page 2 (JM-105)
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 ,T, for which Federal funds are obligated subsequent to April lb, 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 "furnishing . . . communications . . . service," its cost of relocation may be reimbursed under article bb74w-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
. - (JM-105)
Mr. Mark G. Goode - Page 3 furnishing communications service and thus, its cost of relocation may be reimbursed under article bb74w-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[sl or county road[sl." 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 bb74w-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 the public may be reimbursed under article bb74w-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.
-J=$tf&& 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