Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 17, 2009

The Honorable Jim Pitts Opinion No. GA-0722
Chair, Committee on Appropriations
Texas House of Representatives Re: Whether the phrase "cut of a county road" in
Post Office Box 2910 Local Government Code section 240.907 includes
Austin, Texas 78768-2910 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.' 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., RS. (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).

lSee Request Letter at 1 (Jan. 12,2009) available at http://www.texasattomeygeneral.gov).

2Local Government Code section 240.907 was adopted by House Bill 1610. See Act of May 29,2005, 79th
Leg., R.S., ch. 957, § 1,2005 Tex. Gen. Laws 3227.
The Honorable Jim Pitts - Page 2 (GA-0722)

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 FFP. Operating Partners, L.P. v. Duenez, 237
S.W.3d 680,683 (Tex. 2007); Tex. Dep't ofTransp. v. City ofSunset 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'TCODEANN. § 311.011
(Vernon 2005). In section 240.907, "a cut of a county road means the act of excavating or cutting
the surface ofa county road." TEx. Loc. GOV'TCODEANN. § 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) ("lobject,"
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 (defmition 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.
The Honorable Jim Pitts - Page 3 (GA-0722)

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.

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