Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 27,2003
The Honorable Frank Madla Opinion No. GA-0082
Chair, Intergovernmental Relations Committee
Texas State Senate Re: Whether the City of San Antonio may
P.O. Box 12068 impose right-of-way fees against a metropolitan
Austin, Texas 7871 l-2068 transit authority created under chapter 45 1 of the
Transportation Code (RQ-0020-GA)
Dear Senator Madla:
You ask whether the City of San Antonio (the “City”) may require VIA Metropolitan Transit
Authority (“VIA”) to pay a set fee for the installation and relocation of bus stops within the City’s
jurisdiction.
VIA, a transit authority created under chapter 45 1 of the Transportation Code, is authorized
to “acquire, construct, develop, own, operate, and maintain a transit authority system in the territory
of the authority, including the territory of a political subdivision.” TEX. TRANSP. CODE ANN. 6
45 l.O56(a)( 1) (V emon 1999). To fulfill this purpose, a transit authority may:
(1) use a public way, including an alley; and
(2) directly, or indirectly by another person, relocate or reroute the
property of another person or alter the construction of the property of
another person.
Id. § 45 1.058(a). Furthermore, a transit authority that relocates or reroutes property is responsible
for fully reimbursing the expenses of the property owner:
(d) If an authority, through the exercise of a power under this chapter,
makes necessary the relocation or rerouting of, or alteration of the
construction of, a road, alley, overpass, underpass, railroad track,
bridge or associated property, an electric, telegraph, telephone, or
television cable line, conduit, or associated property, or a water,
sewer, gas, or other pipeline or associated property, the relocation or
rerouting or alteration of the construction must be accomplished at
The Honorable Frank Madla - Page 2 (GA-0082)
the sole cost and expense of the authority, and damages that are
incurred by an owner of the property must be paid by the authority.
Id. 5 45 1.058(d).
You indicate that, effective May 1,2001, the City adopted an ordinance providing for “new
right-of-way management regulation to manage construction, excavation and placement of utilities;
[and] establishing fees.“’ “Right of way” or “public right of way” is defined in the ordinance as:
the surface of, and the space above and below, any Street, road,
highway, freeway, lane, path, drainage way, channel, fee interest,
public way or place, sidewalk, alley, boulevard, parkway, drive, or
other easement now or hereafter held by the City or over which the
City exercises any rights of management or control and shall include
but not be limited to all easements now held, or hereafter held, by the
City but shall specifically exclude private property.
SAN ANTONIO, TEX., ORDINANCE93319, § 29-107(bb) (Jan. 25,200l) at 3 (“amending article IV,
section 29-106 et. seq. of the City Code”). “Right of Way-(ROW) User” means “a Person, its
successors and assigns, that uses the Right of Way for purposes of work, Excavation, provision of
Services, or to install, construct, maintain, repair Facilities thereon, including, but not limited to,
landowners and Service providers.” Id. 8 29-107(cc), at 3. “Person,” defined as “any person,
company, partnership, agency or other public or private entity, excepting the City,” id. 8 29-107(v),
is sufficiently broad to encompass VIA. Section 29- 112 of the ordinance provides that “[a]11 ROW
users must register with the City within thirty (30) days of the effective date of this Ordinance.” Id.
8 29- 112, at 5. “No ROW user shall be authorized to utilize the Right of Way in any capacity or
manner without registering and obtaining the necessary Right of Way Permit from the City.” Id.
Section 29-l 17 of the ordinance provides that, “[a]t the time the Permit is issued, the Applicant shall
pay a nonrefundable Application Fee in an amount as provided for in this Chapter.” Id. 8 29- 117(B),
at 6.
You state that “[slome of VIA’s operations include the construction of amenities such as the
placement of bus pads, benches, [and] poles . . . within the city right of ways.” Request Letter, supra
note 1, at 1. “VIA will soon begin the process of installing and/or relocating approximately 400 bus
sites. Under the City right-of-way ordinance, VIA would be compelled to pay $225.00 for each of
the 400 sites it proposes to construct.” Id. at l-2. “It is the City’s position that since the placement
of these amenities involve some construction and minor excavation (i.e. the pouring of concrete for
the slabs), then VIA is compelled to pay such fees under the ordinance.” Id. at 1. VIA contends first
that, because the ordinance applies only to “certificated telecommunications providers,” it is not
applicable to VIA. Id. at 2.
‘Letter from Honorable FrankMadla, Chair, Senate Intergovernmental Relations Committee, to Honorable Greg
Abbott, Texas Attorney General, at 1 (Feb. 24,2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Frank Madla - Page 3 (GA-0082)
The ordinance that amends article IV, chapters 29-106 through 29-194, does in fact appear
to be directed at “certificated telecommunications providers” (“CTPs”). The preamble states, in
relevant part:
WHEREAS, Section 283 of the Texas Local Government
Code (the “Act”) sets forth certain regulations governing
municipalities and Certificated Telecommunications Providers
(“CTPs”). It is the City’s intent to comply with these regulations; and
WHEREAS, the purpose of the Act is to establish a uniform
method of compensation for the use of public Right of Way by CTPs
that is fair and reasonable, administratively simple, competitively
neutral (relative to all CTPs), nondiscriminatory, and consistent
relative to the municipalities and CTPs; and
WHEREAS, this Ordinance promotes compliance with the
Texas Utilities Code . . . .
SAN ANTONIO, TEX., ORDINANCE 93319 (Jan. 25,200l) at 1. For purposes of section 283 of the
Local Government Code, a “certificated telecommunications provider” is defined as “a person who
has been issued a certificate of convenience and necessity, certificate of operating authority, or
service provider certificate of operating authority by the [Public Utilities Commission] to offer local
exchange telephone service.” TEX. Lot. GOV’T CODE ANN. 8 283.002(2) (Vernon Supp. 2003).
VIA, a transit authority, is obviously not a “certificated telecommunications provider” under
this definition. Although the preamble references CTPs, the text of the ordinance, nonetheless, is
specifically made applicable to “ROW [right-of-way] users.” SAN ANTONIO, TEx., ORDINANCE
93319,s 29-l 12 (Jan. 25,200l) at 5. The City has construed the ordinance to include VIA. Because
this office does not ordinarily construe municipal ordinances, we defer to the City’s view that VIA
is included within the ordinance. See Tex. Att’y Gen. Op. No. JC-0143 (1999) at 3 (“this office does
not generally construe city charters or ordinances”); Tex. Att’y Gen. LO-98-058, at 3 (“this office
ordinarily does not construe municipal ordinances”).
VIA next contends that it is exempted from the fees established by the ordinance by virtue
of section 451.058 of the Transportation Code, which, as we have noted, authorizes VIA to “use a
public way,” and to “relocate or reroute the property of another person or alter the construction of
the property of another person.” TEX. TRANsP. CODE ANN. 8 451.058(a) (Vernon 1999). That
statute also requires that such “relocation or rerouting or alteration of the construction must be
accomplished at the sole cost and expense of the authority, and damages that are incurred by an
owner of the property must be paid by the authority.” Id. 8 45 1.058(d).
The City, like every home-rule city, derives its power directly from article XI, section 5 of
the Texas Constitution. A home-rule city need not look to the legislature for grants of power but
only for limitations on its powers. See Dallas Merchs. & Concessionaires Ass’n v. City of Dallas,
The Honorable Frank Madla - Page 4 (GA-0082)
852 S.W.dd 489,490-91 (Tex. 1993). Any such limitation must appear with unmistakable clarity,
either expressly or by necessary implication from the constitution or general statutes. See id. at 49 1.
In City of Richardson v. Responsible Dogs Owners of Tex., 794 S.W.2d 17 (Tex. 1990), the Texas
Supreme Court upheld a City of Dallas ordinance even though there was “a small area of overlap”
between “the provisions of [a] narrow statute and [a] broader ordinance.” Id. at 19. The statute in
that case, section 42.12 of the Penal Code, was limited to provisions for the restraint of dogs. In
addition, the statute was “essentially a ‘first bite’ law which makes it an offense only if a person
keeps a dog that has actually engaged in vicious conduct and fails to restrain the dog or obtain the
required insurance coverage within sixty days of the dog’s vicious conduct.” Id. By contrast, “the
ordinance applies to any animal which may present a threat to the safety and
welfare of the City’s citizens; its enforcement does not depend on the dog having already bitten
someone.” Id.
As was the case in City of Richardson, the ordinance under review here is more
comprehensive than the reimbursement of relocation and rerouting costs contemplated by section
45 1.058(d) of the Transportation Code. As we have indicated, section 29-l 17 of the ordinance
requires any “person” to obtain a permit that authorizes “excavation in or under the . . . Right of
Way.” SAN ANTONIO, TEX., ORDINANCE93319, 5 29-117 (Jan. 25,200l) at 6. An applicant for a
permit must pay a nonrefundable application fee. In addition, “[n]o fee or requirement authorized
or imposed pursuant to this chapter shall be construed to affect or alter in any way any obligation of
public and private Utilities with Facilities installed in any Right of Way to relocate the Facilities at
no cost to the City, subject to state law, if applicable . . . .” Id. 8 29-l 17(E), at 6. Thus, the City
contends that the fee includes “inspection of the permitted use, proper excavation and proper repair
by the user.“2
The cost of “proper excavation and proper repair by the user” is already subsumed within that
portion of section 451.058(d) of the Transportation Code, which requires transit authorities to
reimburse property owners for specific expenses. See TEX. TRANSP. CODE ANN. 8 451.058(d)
(Vernon 1999) (“the relocation or rerouting of, or alteration of the construction of . . . must be
accomplished at the sole cost and expense of the authority, and damages that are incurred by an
owner of the property must be paid by the authority”). The cost of “inspection of the permitted use,”
however, is not included within the list of charges that VIA is obligated to pay. Because section
45 1.058(d) prescribes specific costs that must be assumed by VIA, it necessarily follows that other
charges may not be assessed. Thus, under the standard of the Dallas Merchants case, section
45 1.058(d) implicitly preempts “-with unmistakable clarity” the imposition of inspection fees. We
conclude that the City may not require VLA to pay a fee of $225.00 for each of the 400 sites it
proposes to install or construct.
*Brief from Andrew Martin, City Attorney, City of San Antonio, to Honorable Greg Abbott, Texas Attorney
General at 1 (Apr. 8, 2003) (on file with Opinion Committee).
The Honorable Frank Madla - Page 5 (GA-0082)
SUMMARY
Section 451.058(d) of the Transportation Code requires a
transit authority to pay all construction, alteration, and rerouting costs
associated with the installation and relocation of bus stops, and any
damages incurred. Because the Transportation Code permits the
imposition of only the specific charges listed therein, the City of San
Antonio may not by ordinance require the VIA Metropolitan Transit
Authority to pay duplicative or additional fees associated with such
construction.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee