Utilities may place facilities in state-owned rail right-of-way, but must notify the department; the department can set location and require relocation.
Sec. 91.105. PLACEMENT OF UTILITY FACILITIES, LINES, AND EQUIPMENT. (a) A utility has the same right to place its facilities, lines, or equipment in, over, or across right-of-way that is part of a state-owned rail facility as the utility has with respect to the right-of-way of a state highway under Chapter 181, Utilities Code. A utility shall notify the department of the utility's intention to exercise authority over right-of-way that is part of state-owned rail facilities. (b) On receipt of notice under Subsection (a), the department may designate the location in the right-of-way where the utility may place its facilities, lines, or equipment. (c) The department may require a utility to relocate the utility's facilities, lines, or equipment, at the utility's expense, to allow for the expansion or relocation of rail facilities owned by the state. A relocation under this subsection must be accomplished pursuant to Subsections (e)-(j). The department shall pay for the cost of the relocation. If a utility facility is replaced, the cost of replacement is limited to an amount equal to the cost of replacing the facility with a comparable facility, less the net salvage value of the replaced facility. (d) A utility may use and operate a facility required to be relocated under this section at the new location for the same period and on the same terms as the utility had the right to do at the previous location of the facility. (e) If the department determines that a public utility facility must be relocated, the utility and the department shall negotiate in good faith to establish reasonable terms and conditions concerning the responsibilities of the parties with regard to sharing of information about the project and the planning and implementation of any necessary relocation of a public utility facility. (f) The department shall use its best efforts to provide an affected utility with plans and drawings of the project that are sufficient to enable the utility to develop plans for, and determine the cost of, the necessary relocation of the public utility facility. If the department and the affected utility enter into an agreement after negotiations under Subsection (e), the terms and conditions of the agreement govern the relocation of public utility facilities covered by the agreement. (g) If the department and an affected utility do not enter into an agreement under Subsection (e), the department shall provide to the affected utility: (1) written notice of the department's determination that the public utility facility must be removed; (2) a final plan for relocation of the public utility facility; and (3) reasonable terms and conditions for an agreement with the utility for the relocation of the public utility facility. (h) Not later than the 90th day after the date a utility receives the notice from the department, including the plan and agreement terms and conditions under Subsection (g), the utility shall enter into an agreement with the department that provides for the relocation. (i) If the utility fails to enter into an agreement within the 90-day period under Subsection (h), the department may relocate the public utility facility at the sole cost and expense of the utility less any reimbursement of costs that would have been payable to the utility under applicable law. A relocation by the department under this subsection shall be conducted in full compliance with applicable law, using standard equipment and construction practices compatible with the utility's existing facilities, and in a manner that minimizes disruption of utility service. (j) The 90-day period under Subsection (h) may be extended: (1) by mutual agreement between the department and the utility; or (2) for any period during which the utility is negotiating in good faith with the department to relocate its facility. Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21, 2003.