No. GA-0003 (2002).

• Case Date: December 23, 2002
• Court: Texas

Texas Attorney General Opinions 2002. No. GA-0003 (2002). December 23, 2002Opinion No. GA-0003The Honorable Robert Duncan Interim Chair Natural Resources Committee Texas State Senate P. O. Box 12068 Austin, Texas 78711Tex. Att'y Gen. Op. No. GA-0003 (2002) -- Greg Abbott AdministrationSYLLABUS: 2002-0003 Re: Authority of the Texas Department of Transportation over construction and maintenance of utility lines along a controlled-access highway (RQ-0563-JC) Dear Senator Duncan: Your predecessor as chair of the Senate Natural Resources Committee asked this office a question concerning the authority of the Texas Department of Transportation ("TxDOT") to regulate utility lines on a controlled-access highway in relation to electric and gas utilities' statutorily granted rights-of-way along highways generally.(fn1) We conclude that the rights of utilities pursuant to sections 181.022 and 181.042 of the Utilities Code to lay and maintain gas and electric lines are subject to reasonable regulation. Utility rights-of-way for those purposes are uses of the road subordinate to its use for highway purposes. The Utility Accommodation Policy is, as a matter of law, a reasonable exercise of TxDOT's power of control over the operation of the state highway system, as well as its legislatively granted power under section 203.031 of the Transportation Code over access to controlled-access highways. See 43 Tex. Admin. Code §§ 21.31-.56 (2002) (chapter 21, subchapter C, Utility Accommodation Policy). Whether any particular application of that policy is reasonable would require factual findings that cannot be made in the opinion process.(fn2) The placement of public utility lines in a highway right-of-way is, however, subject to reasonable regulation. The requirement that utilities show that their proposed placement of electric or gas lines will not have an adverse impact on the use of the highway by the public, or on the safety of the public, is not inherently unreasonable. As your predecessor explained the controversy that gave rise to this request, a public utility seeks to place electric and gas lines in the right-of-way along a state highway in the Houston area. See Request Letter, supra note 1, at 1. The highway in question has been designated a controlled- access highway under section 203.031 of the Transportation Code, which permits the Transportation Commission (the "commission"), TxDOT's policy-making body, to designate such roads and to "deny access to or from a controlled[-]access highway from or to adjoining public or private real property and from or to a public or private way intersecting the highway, except at specific locations designated by the commission." Tex. Transp. Code Ann. § 203.031(a)(2) (Vernon 1999); see also id. §§ 201.101-.104 (commission's powers and duties). Such denial of access defines a "controlled- access highway." See id. § 203.001(1). In common parlance, what is under discussion here is generally called a freeway. Title 23 of the Code of Federal Regulations, part 645, governing the accommodation of utilities on federally-funded highways such as those at issue here, mandates that any such accommodation "will not . . . affect highway or traffic safety." 23 C.F.R. § 645.211(a) (2001). Pursuant to its authority under section 203.031(a)(2) of the Texas Transportation Code, and in order to comply with the Code of Federal...