Untitled Texas Attorney General Opinion ( 1989 )

June 21, 1989
Mr. Charles Brack Opinion No. JM-1062
Chambers County Attorney
Mills, Shirley, Eckel Re: Applicability to governmental
& Bassett bodies of V.T.C.S. article 1436c,
P. 0. Box 1943 relating to the safety of indi-
Galveston, Texas 77553 viduals who work in proximity to
high voltage electrical lines
(RQ-1718)
Dear Mr. Brack:
Article 1436c, V.T.C.S., provides that "no person,
firm, corporation, or association" shall, without having
taken specified safety precautions, perform activities,
erect structures, or handle or store various items within a
stated proximity to high voltage overhead lines, or operate
certain equipment. Section 7 of the article provides:
(a) Every person, firm, corporation, or
association and every agent or employee of
such person, firm, corporation, or associa-
tion who violates any of the provisions of
this Act shall be fined not less than $100,
nor more than $1,000 or confined in jail for
not more than one year or both.
(b) If a violation of this Act results in
physical or electrical contact with any high
voltage overhead line, the person, firm,
corporation, or association violating the
provisions of this Act shall be liable to the
owner or operator of such high voltage line
for all damage to such facilities and for all
liability incurred by such owner or operator
as a result of any such contact..
We understand you to ask whether article 1436~ is applicable
to counties so as to operate as a waiver of the county's
governmental immunity for purposes of county liability under
section 7. We conclude that a county is not a "person,
firm, corporation, or association" within the meaning of
p. 5533
Mr. Charles Brack - Page 2 (JM-1062)
article 1436~ and thus that a county is not subject to
liability under the provisions of that article.
The Texas Supreme Court in State v. Central Power &
Liaht Co., 161 S.W.2d 766, 767 (Tex. 1942) concluded that
the language in the former antitrust statute, V.T.C.S.
article 7426, defining a ,,trust,, as I1 a combination of
capital, skill or acts by two or more persons, firms,
corporations or associations of persons, or either two or
more of them,, for specified purposes, did not include
municipal corporations. Noting that the statute was penal
in nature, the court opined that ,,if the Legislature had
intended to visit such severe penalties ,on municipalities,
it would have used more apt language to describe them.,, Id.
at 768.1 See also Citv of Houston v. Renault, Inc., 431
S.W.2d 322 (Tex. 1968) ("statute making it unlawful for any
person, firm or private corporation to divert natural flow
of surface waters or to impound same in such manner as to
damage property of another does not apply to municipal
corporationsn); 0Cit of co us
Servicina Corn 368 S.W.2d 640 (Tex. Civ. App. - San
Antonio 1963. w;it ref'd n.r.e.1 fItifthe term 'nerson' is
used to designate the party whose property is intended to be
protected, the term includes all public or private corpora-
tions; if it identifies the party against whom a violation
is charged, it is 'strictly construed',,). But see Gates v.
Citv of Dallas, 704 S.W.Zd 737 (Tex. 1986) (discerning
legislative intent to make provision for attorneys fees
after delayed payment of valid claim against "corporation,,
based on written contract applicable to municipal corpora-
tions).
A provision of the Code Construction Act, Government
Code section 311.005, provides that the word "person"
includes "government or governmental subdivision or agency,,
unless the context requires a different definition. The
Code Construction Act, however, does to the
construction of civil statutes. Gov'Eo~:P1y 9 311.002.
Section 312.011 of the Government Code applies, per section
1. Article 7426 was repealed in 1967 by the act which
adopted the Business and Commerce Code. Acts 1967, 60th
Leg., ch. 785, at 2343. See now Bus. & Corn. Code 95 15.01
et sea. As amended in 1983, sections 15.03 and 15.10 now
specifically define "person,, as including municipal corpora-
tions. Acts 1983, 68th Leg., ch. 519, § 1, at 3010.
p. 5534
Mr. Charles Brack - Page 3 (JM-1062)
1
312.001, to the construction of civil statutes such as
article 1436~. Section 312.011 provides simply that the
word "person,, in such statutes "includes a corporation.,,
Notably, a county's status as a political entity has
been characterized by the courts as being, in contrast to
that of a municipal corporation, that of a "quasi-corpora-
tion." See. e.a City of Sherman v. Shobe, 58 S.W.
(Tex. 1900); He&l v. Wichita Co., 19 S.W. 562 (Tex. lS9:;9
We do not think that the legislature would have intended to
include counties as being subject to liability under article
1436~ by use of the term %orporation.,,
Nor do we think that the provisions of section 2 of
article 1436~ indicate that the legislature intended the
article to apply to counties. Section 2 provides that the
statute does not apply to the ,,construction, reconstruction,
operation, or maintenance,, of certain electrical or communi-
cation circuits, and associated systems, by an "authorized
person." Section 1(3)(B) defines "authorized person,, to
include "employees of . . . state and county or municipal
agencies having authorized circuit construction on the poles
or the structures of,, a power company, cooperative, city, or
transportation or communication system. We do not think
that this exemption of certain county employees implies that
counties, even though not specifically exempted, are liable
under the statute. On its face the article indicates that
directives as to safety measures and provisions for
liability apply only to a ,lperson, firm, corporation, or
association.,, We discern no legislative intent that the
language "person, firm, corporation, or association,,
includes counties. We do not think that a county is a
"person, firm, corporation, or association,, within the
meaning of the article 1436~.
Please note, however, that we do not intend to say that
counties may not, on the appropriate facts, be held liable
for damages arising from county activities in connection
with high voltage electric lines. The Texas Tort Claims Act
specifically defines "governmental units,' to include
counties. Civ. Prac. & Rem. Code 5 101.001(2)(B). Section
101.021 provides that a governmental unit is liable for:
(1) property damage, personal injury, and
death proximately caused by the wrongful act
or omission or the negligence of an employee
acting within his scope of employment if:
p. 5535
Mr. Charles Brack - Page 4 (JM-1062)
(A) the property damage, personal
injury, or death arises from the operation
or use of a motor-driven vehicle or
motor-driven equipment; and
(B) the employee would be personally
liable to the claimant according to Texas
law; and
(2) personal injury and death so caused
by a condition or use of tangible personal or
real property if the governmental unit would,
were it a private person, be liable to the
claimant according to Texas law.
Whether any particular county activities giving rise to
damages fall within the scope of the provisions of the Tort
Claims Act would ultimately, of course, involve questions of
fact which we in the opinion process cannot resolve.
SUMMARY
A county is not a "person, firm, corpora-
tion, or association" within the meaning of
V.T.C.S. article 1436~ and is thus not
subject to liability under the provisions of
section 7 of that article.
J AQtx
Very truly you
JIM
A
MATTOX
,
.
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 5536