Attorney General of Texas — Opinion
June 17, 2009
GREG ABBOTT, Attorney General of Texas
The Honorable Jim Pitts Chair, Committee on Appropriations Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910
Re: Whether the phrase “cut of a county road” in Local Government Code section 240.907 includes boring under the road (RQ-0776-GA)
Dear Representative Pitts:
Your predecessor as Chair of the Committee on Appropriations requested an opinion interpreting Texas Local Government Code section 240.907, which authorizes counties to impose a fee on persons who cut a county road.[1] See TEX. LOC. GOV’T CODE ANN. § 240.907 (Vernon 2005). A person or entity that cuts a county road to lay a pipeline or other line is responsible for repairing the cut or paying the county for the repair. See SENATE RESEARCH CENTER, BILL ANALYSIS, Tex. H.B. 1610,79th Leg., R.S. (2005) at 1.[2] Because the cuts weaken the road, causing higher maintenance costs for the county, the Legislature adopted section 240.907 to provide funds for the additional maintenance resulting from the cut and repair. See id.
Your predecessor asked whether section 240.907 applies to activities that bore or tunnel under a road without cutting the surface See Request Letter at 1-2. Section 240.907 provides in part:
(b) To provide funds for the future inspection, repair, and maintenance of a cut road, a county may impose a fee on a person or other entity for each cut of a county road during or as an incident to the installation, maintenance, or repair of any facilities or properties of the person or entity.
TEX. LOC. GOV’T CODE ANN. § 240.907(b) (Vernon 2005) (emphasis added). The fee may not exceed $500, and it “is in addition to any other charge the county is authorized to impose to repair damage to the road because of the cut.” Id.
§ 240.907(c)(1), (3).
Page 2
Courts will determine and give effect to the Legislature’s intent as expressed by the plain and common meaning of the statute’s words See F.F.P. Operating Partners, L.P. v. Duenez, 237 S. W.3d 680, 683
(Tex. 2007); Tex. Dep `t of Tramp, v. City of Sunset Valley, 146 S.W.3d 637,642 (Tex. 2004). “Words and phrases shall be read in context and construed according to the rules of grammar and common usage,” and words or phrases that have acquired a technical or particular meaning by legislative definition shall be construed accordingly. TEX. GOV’TCODE ANN. § 311.011 (Vernon 2005). In section 240.907, “a cut of a county road means the act of excavating or cutting the surface of a county road.” TEX. LOC. GOV’T CODE ANN. § 240.907(a) (Vernon 2005) (emphasis added). In this definition, both “excavating” and “cutting” have “surface of a county road” as their object. See MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 855 (11th ed. 2004) (“Object,” definition 5(a), means a noun “denoting the goal or result of the action of a verb”). The word “cut” has been defined as “to divide into parts with an edged tool,” while “excavate” has been defined as “to form a cavity or hole in.” Id. at 308 (definition 3(b)(1)), 434 (definition 1). Section 240.907 thus applies to activities that sever the road surface. See generally Tex. Att’y Gen. Op. No. MW-189 (1980) at 1 (addressing the power of a municipal utility district to make open cuts across county roads for water lines instead of being restricted to boring under the roads). The language of the statute does not apply to activities that do not open up the surface of the road. We conclude that Local Government Code section 240.907 does not authorize counties to impose a fee on a person or other entity for activities that bore or tunnel under a county road without opening up the surface of the road.
Page 3
SUMMARY
Texas Local Government Code section 240.907 authorizes counties to impose a fee not to exceed $500 on a person or entity for each cut of a county road during or as an incident to the installation, maintenance, or repair of a person’s or entity’s facilities or properties. A county may impose the section 240.907 fee for the activities of excavating or cutting the surface of a county road but not for activities that bore or tunnel under a county road without cutting the road surface.
Very truly yours,
GREG ABBOTT Attorney Cfeneral of Texas
ANDREW WEBER First Assistant Attorney General
JONATHAN K. FRELS Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
Susan L. Garrison Assistant Attorney General, Opinion Committee
Page 1