TLC: Transportation Code Proposed Chapters

81C444(2) JTS

SUBTITLE C. RAILROADS GENERALLY

CHAPTER 111. REGULATION BY TEXAS DEPARTMENT OF TRANSPORTATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 111.001. DEFINITION OF PERSON ........................ 2

Sec. 111.002. POWER AND AUTHORITY ......................... 2

Sec. 111.003. TRANSFER OF RAILROAD AUTHORITY .............. 3

Sec. 111.004. REFERENCE TO RAILROAD COMMISSION ............ 4

[Sections 111.005-111.050 reserved for expansion]

SUBCHAPTER B. REGULATION OF RAILROADS BY DEPARTMENT

Sec. 111.051. INSPECTION OF BOOKS AND PAPERS; PENALTY ..... 5

Sec. 111.052. INFORMATION SOLICITED BY DEPARTMENT ......... 7

Sec. 111.053. REFUSAL TO ANSWER BY RAILROAD COMPANY

OFFICER OR EMPLOYEE; CRIMINAL PENALTY ..... 8

Sec. 111.054. REFUSAL TO ANSWER BY RAILROAD COMPANY;

PENALTY .................................. 10

Sec. 111.055. WITNESSES .................................. 10

Sec. 111.056. DEPOSITIONS ................................ 14

Sec. 111.058. SUITS FOR PENALTY .......................... 15

[Sections 111.059-111.100 reserved for expansion]

SUBCHAPTER C. DEPARTMENT SAFETY REGULATION

Sec. 111.101. IMPLEMENTATION OF FEDERAL SAFETY LAWS;

FEES ..................................... 16

Sec. 111.102. HAZARDOUS MATERIALS INSPECTIONS ............ 18

Sec. 111.103. HAZARDOUS MATERIALS; PACKING AND

TRANSPORTATION ........................... 19

Sec. 111.104. HAZARDOUS MATERIALS; REPORTS ............... 20

SUBTITLE C. RAILROADS GENERALLY

CHAPTER 111. REGULATION BY TEXAS DEPARTMENT OF TRANSPORTATION

SUBCHAPTER A. GENERAL PROVISIONS

Revised Law

Sec. 111.001. DEFINITION OF PERSON. For each provision in this chapter added April 1, 2011, as part of the revision of former Title 112, Revised Statutes:

(1) "person" includes a corporation, as provided by Section 312.011, Government Code; and

(2) the definition of "person" assigned by Section 311.005, Government Code, does not apply. (New.)

Revisor's Note

To ensure that no substantive change is made by the revision of the term "person" as used in Title 112, Revised Statutes, the revised law adds a provision stating that, for the purposes of the provisions of Title 112, Revised Statutes, revised in this chapter, "person" includes a corporation, as provided by Section 312.011, Government Code, and the definition of "person" in Section 311.005, Government Code, does not apply. Section 312.011(10), Government Code, which applies to Title 112, provides that "person" includes a corporation. Section 311.005(2), Government Code (Code Construction Act), which applies to the Transportation Code, defines "person" to include a "corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity."

Revised Law

Sec. 111.002. POWER AND AUTHORITY. To the extent not preempted by federal law, the department:

(1) has power and authority over:

(A) railroads, including suburban, belt, and terminal railroads;

(B) public wharves, docks, piers, elevators, warehouses, sheds, tracks, and other property used in connection with railroads; and

(C) persons, associations, and private or municipal corporations that own or operate a railroad, or a wharf, dock, pier, elevator, warehouse, shed, track, or other property used in connection with a railroad; and

(2) shall govern and regulate those railroads, persons, associations, and corporations and prevent abuses in the conduct of their business. (V.A.C.S. Art. 6445, Subsec. (a).)

Source Law

Art. 6445. (a) To the extent not preempted by federal law, the Texas Department of Transportation:

(1) has power and authority over:

(A) railroads, including suburban, belt and terminal railroads;

(B) public wharves, docks, piers, elevators, warehouses, sheds, tracks and other property used in connection with railroads; and

(C) persons, associations and corporations, private or municipal, owning or operating a railroad, or a wharf, dock, pier, elevator, warehouse, shed, track or other property used in connection with a railroad; and

(2) shall govern and regulate those railroads, persons, associations and corporations and prevent abuses in the conduct of their business.

Revisor's Note

Subsection (a), V.A.C.S. Article 6445, refers to the Texas Department of Transportation. Section 81.001, Transportation Code, defines "department" to mean the Texas Department of Transportation for the purposes of Title 5, Transportation Code.

Revised Law

Sec. 111.003. TRANSFER OF RAILROAD AUTHORITY. On October 1, 2005, all powers and duties of the Railroad Commission of Texas that related primarily to railroads and the regulation of railroads and that existed on that date were transferred to the department, as provided by Chapter 281, Acts of the 79th Legislature, Regular Session, 2005. (V.A.C.S. Art. 6445, Subsec. (b).)

Source Law

(b) All powers and duties of the Railroad Commission of Texas that relate primarily to railroads and the regulation of railroads are transferred to the Texas Department of Transportation.

Revised Law

Sec. 111.004. REFERENCE TO RAILROAD COMMISSION. Any reference in law to the Railroad Commission of Texas that relates primarily to railroads and the regulation of railroads means the department. (V.A.C.S. Art. 6445, Subsec. (c).)

Source Law

(c) A reference in law to the Railroad Commission of Texas that relates primarily to railroads and the regulation of railroads means the Texas Department of Transportation.

Revisor's Note

Subsection (c), V.A.C.S. Article 6445, states that a reference in law to the Railroad Commission of Texas that relates primarily to railroads and the regulation of railroads means the Texas Department of Transportation. Throughout Title 5, the revised law substitutes references to the Texas Department of Transportation for references to the Railroad Commission of Texas in the context of railroads and their regulation.

Revisor's Note

(End of Subchapter)

V.A.C.S. Article 6446 provides that the railroad commission has the authority to perform acts and duties imposed on it by Title 112, Revised Statutes, and that railroads, persons, corporations, and associations subject to the commission's control are subject to the penalties provided by law for failure to comply with the commission's rules, orders, directions, or requirements. The revised law omits the provisions because the specific provisions of Title 112, Revised Statutes, codified in this code as this subtitle and Subtitle D and codified in the Natural Resources Code in Subchapters B, C, and D, Chapter 81, Natural Resources Code, are sufficient by their own terms to authorize an agency's actions or to subject persons under the agency's jurisdiction to liability under the appropriate circumstances. The omitted law reads:

Art. 6446. The Railroad Commission of Texas is hereby vested with full power and authority to do and perform each act and duty authorized, directed or imposed upon it by the provisions of this title, and all railroads, persons, corporations, and associations subject to the control of the Commission shall be subject to the penalties prescribed by law for failure to comply with the rules, orders, directions or requirements of said Commission as severally provided in this title.

[Sections 111.005-111.050 reserved for expansion]

SUBCHAPTER B. REGULATION OF RAILROADS BY DEPARTMENT

Revised Law

Sec. 111.051. INSPECTION OF BOOKS AND PAPERS; PENALTY. (a) A member of the commission or a person authorized in writing by a member of the commission under the hand and seal of the department may:

(1) inspect the books and papers of a railroad company; and

(2) examine under oath a railroad company officer, agent, or employee in relation to the business and affairs of the company.

(b) A railroad company that refuses to permit an examination of the company's books and papers under Subsection (a) is liable to the state, for each violation, for a penalty of not less than $125 or more than $500 for each day the company fails or refuses to permit the examination.

(c) An officer, agent, or employee of a railroad company who possesses or controls any book or paper of the company commits an offense if, after proper demand, the officer, agent, or employee fails or refuses to exhibit, to any member of the commission or any person authorized to investigate, the book or paper. An offense under this subsection is a misdemeanor punishable by a fine of not less than $125 or more than $500. (V.A.C.S. Arts. 6464, 6465, 6559i-1.)

Source Law

Art. 6464. The Commissioners or either of them, or such persons as they may authorize in writing under the hand and seal of the Commission, shall have the right at any time to inspect the books and papers of any railroad company and to examine under oath any officer, agent or employé of such railroad in relation to the business and affairs of the same.

Art. 6465. If any railroad shall refuse to permit such examination of its books and papers, such railroad company shall, for each offense, pay to the State of Texas not less than one hundred and twenty-five nor more than five hundred dollars for each day it shall so fail or refuse.

Art. 6559i-1. Any officer, agent or employé of any railroad company who shall, upon proper demand, fail or refuse to exhibit to any member of the Railroad Commission of Texas or any person authorized to investigate the same, any book or paper of such railroad company, which is in the possession or under the control of such officer, agent, or employé, shall be fined not less than one hundred and twenty-five dollars nor more than five hundred dollars.

Revisor's Note

(1) V.A.C.S. Article 6464 refers to "[t]he Commissioners or either of them," meaning the individual members of the governing body of the Railroad Commission of Texas. The revised law substitutes a reference to the individual members of the Texas Transportation Commission (defined for the purposes of the revised law as "the commission"), the governing body of the Texas Department of Transportation, since that agency assumed the powers and duties of the Railroad Commission of Texas under Subsection (b), V.A.C.S. Article 6445.

(2) V.A.C.S. Article 6464 states that the commission may inspect and examine a railroad company "at any time." The revised law omits the quoted language because the authority to take an action implies the authority to do so at any time.

(3) V.A.C.S. Article 6559i-1 provides a penalty for railroad company officers, agents, and employees who refuse to permit the Railroad Commission of Texas to examine the company's books and papers. The revised law clarifies that the conduct is a misdemeanor criminal offense. Article 6559i-1 was transferred to its current designation from Article 1684, Vernon's Annotated Penal Code, by authority of Chapter 399, Acts of the 63rd Legislature, Regular Session, 1973, which enacted the Texas Penal Code. Article 47, Vernon's Annotated Penal Code, which applied to Article 1684 before its transfer, stated that "[an] offense is an act or omission … to which is annexed … any punishment prescribed by this Code" and that every offense that was not "punishable by death or confinement in the penitentiary" was considered a misdemeanor. Section 5 of Chapter 399 provided that the transfer of articles from the old penal code to new locations in Texas statutes was to be done "without altering the meaning or effect" of the unrepealed statutes. Accordingly, the revised law classifies this conduct as a misdemeanor criminal offense and conforms the language to the way offenses punishable by a fine are described by the Penal Code.

Revised Law

Sec. 111.052. INFORMATION SOLICITED BY DEPARTMENT. (a) The department shall as often as necessary provide each railroad company a questionnaire designed to elicit all information concerning the railroad.

(b) A railroad company receiving a questionnaire under Subsection (a) shall properly fill out the questionnaire and answer each question fully and correctly. A railroad company that is unable to answer a question shall give satisfactory reason for the inability to answer.

(c) A railroad company shall return the completed questionnaire, sworn to by the proper officer of the company, to the department not later than the 30th day after the date the company received the questionnaire. (V.A.C.S. Art. 6467.)

Source Law

Art. 6467. The Commission shall as often as necessary furnish each railroad company suitable blanks with questions formed so as to elicit all information concerning such railroads. Any railroad company receiving such blanks shall cause them to be properly filled out so as to answer fully and correctly each question therein propounded, and if they are unable to answer any question therein propounded, they shall give satisfactory reason for their failure; and the answers duly sworn to by the proper officer of the company, shall be returned to the Commission within thirty days from the receipt thereof.

Revisor's Note

V.A.C.S. Article 6467 requires that information provided by a railroad be "duly sworn to by the proper officer of the company." The revised law omits "duly" because it does not add to the clear meaning of the law.

Revised Law

Sec. 111.053. REFUSAL TO ANSWER BY RAILROAD COMPANY OFFICER OR EMPLOYEE; CRIMINAL PENALTY. (a) An officer or employee of a railroad company commits an offense if the officer or employee:

(1) fails or refuses to fill out and return a questionnaire to the department as required by law;

(2) fails or refuses to answer any question in a questionnaire;

(3) gives a false answer to any question in a questionnaire if the answer to the question is within the officer's or employee's knowledge; or

(4) evades the answer to any question in a questionnaire.

(b) An offense under this section is a misdemeanor punishable by a fine of $500 for each day that the officer or employee violates this section after the date the questionnaire is due to the department. (V.A.C.S. Art. 6559i-2.)

Source Law

Art. 6559i-2. If any officer or employé of a railroad company shall fail or refuse to fill out and return any blanks to said Railroad Commission as provided by law, or fail or refuse to answer any question therein propounded, or give a false answer to any such question, where the fact inquired of is within his knowledge, or shall evade the answer to any such question, such person shall be fined five hundred dollars for each day he shall fail to perform such duty, after the expiration of the time allowed by law to so answer.

Revisor's Note

V.A.C.S. Article 6559i-2 imposes a fine on a railroad company officer or employee who fails to provide certain information to the Railroad Commission of Texas. The revised law clarifies that the conduct is a misdemeanor criminal offense. Article 6559i-2 was transferred to its current designation from Article 1685, Vernon's Annotated Penal Code, by authority of Chapter 399, Acts of the 63rd Legislature, Regular Session, 1973, which enacted the Texas Penal Code. Article 47, Vernon's Annotated Penal Code, which applied to Article 1685 before its transfer, stated that "[an] offense is an act or omission … to which is annexed … any punishment prescribed by this Code" and that every offense that was not "punishable by death or confinement in the penitentiary" was considered a misdemeanor. Section 5 of Chapter 399 provided that the transfer of articles from the old penal code to new locations in Texas statutes was to be done "without altering the meaning or effect" of the unrepealed statutes. Accordingly, the revised law classifies the conduct as a misdemeanor criminal offense and conforms the language to the way offenses punishable by a fine are described by the Penal Code.

Revised Law

Sec. 111.054. REFUSAL TO ANSWER BY RAILROAD COMPANY; PENALTY. (a) A railroad company is liable to the state for a penalty of $500 if:

(1) an officer or employee of the company:

(A) fails or refuses to fill out and return a questionnaire under Section 111.052;

(B) fails or refuses to answer a question in a questionnaire under Section 111.052;

(C) gives a false answer to a question in a questionnaire under Section 111.052 and the fact inquired of is within the officer's or employee's knowledge; or

(D) evades the answer to such a question in a questionnaire under Section 111.052; and

(2) it appears that the officer or employee acted in obedience to the company's direction, permission, or request in the officer's or employee's failure, refusal, or evasion.

(b) The department may prescribe a system of bookkeeping to be observed by each railroad company that receives a questionnaire under Section 111.052, under the penalties of Subsection (a). (V.A.C.S. Art. 6468.)

Source Law

Art. 6468. If any officer or employé of a railroad shall fail or refuse to fill out and return any blanks as above required, or fail or refuse to answer any questions therein propounded, or shall give a false answer to any such questions where the fact inquired of is within his knowledge, or shall evade the answer to any such questions, a penalty of five hundred dollars shall be recovered from the company by the State when it appears that such persons acted in obedience to its direction, permission or request in his failure, evasion or refusal. Said Commission shall have the power to prescribe a system of book-keeping to be observed by each railroad subject hereto, under the penalties prescribed in this article.

Revised Law

Sec. 111.055. WITNESSES. (a) This section applies only to the extent that it does not conflict with Chapter 2001, Government Code.

(b) In an examination or investigation under this chapter, the department may compel the attendance of witnesses and may issue subpoenas for witnesses in accordance with rules prescribed by the department. The officer to whom process is directed shall serve it.

(c) A witness who appears before the department by order of the department at a place outside the county where the witness resides is entitled to receive for the witness's attendance:

(1) $1 for each day; and

(2) three cents for each mile the witness travels, by the nearest practical route, in going to and returning from that place.

(d) On the presentation of proper vouchers, sworn to by the witness and approved by the department, the comptroller shall pay the witness the amount to which the witness is entitled.

(e) A witness is not entitled to fees or mileage if, when summoned at the request of a railroad, the witness:

(1) is directly or indirectly interested in the railroad;

(2) is in any way interested in stock, a bond, a mortgage, or a security, or the earnings of the railroad; or

(3) was an officer, agent, or employee of the railroad.

(f) A witness furnished with free transportation may not receive pay for the distance the witness travels on the free transportation.

(g) The department may issue an attachment as in civil cases for a witness who fails or refuses to obey a subpoena and may compel the witness to appear before the department and testify on a matter as the department requires.

(h) If a witness, after being summoned, fails or refuses to attend or to answer a question asked of the witness that the witness would be required to answer if in court, the department may fine and imprison the witness for contempt in the same manner that a judge of the district court might do under similar circumstances.

(i) The claim that testimony might tend to incriminate the person giving the testimony does not excuse a witness from testifying, but the evidence or testimony may not be used against the witness in a criminal trial. (New; V.A.C.S. Art. 6471.)

Source Law

Art. 6471. In any examination or investigation provided in this chapter, the Commission is authorized and empowered to compel the attendance of witnesses, and may issue subpoenas for witnesses by such rules as they may prescribe, and such process shall be served by the officer to whom it may be directed. Each witness who shall appear before the Commission by order of the Commission, at a place outside the county of his residence, shall receive for his attendance one dollar per day and three cents per mile traveled by the nearest practical route, in going to and returning from the place of meeting of the Commission, which shall be paid by the Comptroller upon the presentation of proper vouchers, sworn to by the witness, and approved by the Commission. No witness shall be entitled to fees or mileage who is directly or indirectly interested in a railroad, or who is in anywise interested in any stock, bond, mortgage, security or earnings of such road, or was an officer, agent or employé of such road when summoned at the instance of such railroad. No witness furnished with free transportation shall receive pay for the distance he may travel on such free transportation. The Commission may issue an attachment as in civil cases, for a witness who fails or refuses to obey a subpoena, and compel him to attend before the Commission and give his testimony upon such matter as shall be lawfully required by them. If a witness, after being duly summoned, shall fail or refuse to attend or to answer any question propounded to him, and which he would be required to answer if in court, the Commission may fine and imprison such witness for contempt, in the same manner that a judge of the district court might do under similar circumstances. The claim that any such testimony might tend to criminate the person giving it shall not excuse a witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.

Revisor's Note

(1) V.A.C.S. Article 6471 addresses the appearance and reimbursement of witnesses who participate in an examination or investigation by the Railroad Commission of Texas. The revised law adds a provision clarifying that Article 6471 is only effective to the extent that it does not conflict with the Texas administrative procedure law, Chapter 2001, Government Code. The original enactment of the Administrative Procedure and Texas Register Act, Chapter 61, Acts of the 64th Legislature, Regular Session, 1975, repeals all conflicting law. Because the enactment of Article 6471 predates the administrative procedure law, the provisions of Article 6471 that conflict with that law are repealed.

(2) V.A.C.S. Article 6471 refers to an examination or investigation under "this chapter," meaning Chapter 11, Title 111. Revised Statutes. Although Article 6471 is not explicitly limited to witnesses participating in an examination and investigation of a railroad, the revised law limits the provision's application to an examination or investigation of a railroad and does not apply the provision to an examination or investigation associated with the railroad commission's regulation of the oil and gas industry. Subsequent to the enactment of the 1891 statute that was revised in 1925 as Article 6471, the legislature enacted Section 10, Chapter 14, Acts of the 36th Legislature, 3rd Called Session, 1920, which specifically addressed the appearance of witnesses in an investigation or examination associated with the oil and gas industry, leaving Article 6471 to apply only to the railroad commission's regulation of railroads.

(3) V.A.C.S. Article 6471 refers to a witness's giving testimony on a matter as "lawfully" required by the railroad commission. The revised law omits "lawfully" as unnecessary because the word does not add to the clear meaning of the law. A person need not comply with an unlawful order. That article also provides for a penalty if a witness, after being "duly" summoned, fails or refuses to attend or to answer a question that the witness would be required to answer if in court. The revised law omits "duly" as unnecessary for the same reason.

Revised Law

Sec. 111.056. DEPOSITIONS. (a) The department may in its discretion issue process to take the testimony of a witness by a written or oral deposition instead of compelling the personal attendance of the witness.

(b) An officer executing process issued under a provision of this subtitle or Subtitle D may charge a fee as determined by the department, not to exceed fees prescribed by law for similar services. (V.A.C.S. Art. 6472.)

Source Law

Art. 6472. The Commission may in its discretion issue proper process and take written or oral depositions instead of compelling personal attendance of witnesses. The fees of an officer executing any process issued under the provisions of this title shall be such as the Commission may allow, not to exceed fees as prescribed by law for similar services.

Revisor's Note

V.A.C.S. Article 6472 refers to process issued under the provisions of "this title," meaning Title 112, Revised Statutes. Throughout this subtitle, the revised law substitutes references to "this subtitle or Subtitle D" for references to Title 112 that relate to railroads because the provisions of that title relating to railroads have been codified in those locations.

Revised Law

Sec. 111.057. PENALTY NOT OTHERWISE PROVIDED. A railway company doing business in this state is liable to the state for a penalty of not more than $5,000 each time the railway company:

(1) violates any provision of this subtitle or Subtitle D or fails or refuses to perform any duty imposed upon it for which a penalty has not been provided by law; or

(2) fails, neglects, or refuses to obey any requirement, order, judgment, or decree of the department. (V.A.C.S. Art. 6476.)

Source Law

Art. 6476. If any railway company doing business in this State shall violate any provision of this title, or shall do any act herein prohibited, or shall fail or refuse to perform any duty enjoined upon it for which a penalty has not been provided by law or shall fail, neglect or refuse to obey any lawful requirement, order, judgment or decree made by the Commission, for every such act of violation it shall pay to the State of Texas a penalty of not more than five thousand dollars.

Revisor's Note

(1) V.A.C.S. Article 6476 provides a penalty for a railway company if the company "shall violate any provision of this title, or shall do any act herein prohibited." The revised law omits "shall do any act herein prohibited" because performing an act prohibited by the title would be a violation of a provision of the title.

(2) V.A.C.S. Article 6476 refers to "lawful requirement, order, judgment or decree." The revised law omits the reference to "lawful" for the reason stated in Revisor's Note (3) to Section 111.055.

Revised Law

Sec. 111.058. SUITS FOR PENALTY. (a) The attorney general, or an attorney acting under the direction of the attorney general, may bring suit in the name of the state to recover a penalty provided under this chapter that is recoverable by the state in:

(1) Travis County; or

(2) any county in or through which the railroad runs.

(b) The attorney bringing a suit under this section is entitled to receive:

(1) a fee to be paid by the state of $50 for each penalty recovered and collected by the attorney; and

(2) 10 percent of the amount collected.

(c) In all suits arising under this chapter or Section 112.003, the rules of evidence shall be the same as in ordinary civil actions, except as otherwise provided by this chapter. (V.A.C.S. Art. 6477 (part).)

Source Law

Art. 6477. All of the penalties herein provided, except as provided in Article 6475, recoverable by the State shall be recovered and suits thereon shall be brought by the Attorney General or under his direction in the name of the State of Texas, in Travis County, or in any county into or through which such railroad may run; and the attorney bringing such suit shall receive a fee to be paid by the State of fifty dollars for each penalty recovered and collected by him, and ten percent of the amount collected. In all suits arising under this chapter, the rules of evidence shall be the same as in ordinary civil actions, except as otherwise herein provided… .

Revisor's Note

(1) V.A.C.S. Article 6477 establishes venue for the state to recover from a railroad the penalties provided "herein," meaning Chapter 11, Title 112, "except as provided in Article 6475." The revised law omits the quoted exception because Article 6475 (codified as Section 112.003) addresses damages recoverable from a railroad as opposed to a penalty against a railroad, so the exception is unnecessary.

(2) V.A.C.S. Article 6477 requires fines and penalties recovered by the state under Chapter 11, Title 112, Revised Statutes, to be paid into the state treasury. The revised law omits the provision as unnecessary because under Section 404.094, Government Code, all fines and penalties received by a state agency are required to be deposited in the state treasury. The omitted law reads:

Art. 6477… . All fines and penalties recovered by the State under this chapter shall be paid into the State Treasury; provided … .

[Sections 111.059-111.100 reserved for expansion]

SUBCHAPTER C. DEPARTMENT SAFETY REGULATION

Revised Law

Sec. 111.101. IMPLEMENTATION OF FEDERAL SAFETY LAWS; FEES. (a) The department may perform any act, adopt any rules, and issue any orders as permitted by the Federal Railroad Safety Act of 1970, originally codified as 45 U.S.C. Sections 421, 431 et seq. and recodified in 1994 as 49 U.S.C. Sections 20101-20117, 20131, 20133-20141, 20143, 21301, 21302, 21304, 21311, 24902, and 24905 and Sections 4(b)(1), (i), and (t) of Pub. L. No. 103-272.

(b) The department by rule shall:

(1) adopt reasonable fees to be assessed annually against railroads operating within the state; and

(2) establish the method by which the fees are calculated and assessed.

(c) The total amount of fees estimated to be collected by rules adopted by the department under this section may not exceed the amount estimated by the department to be necessary to recover the costs of administering the department's rail safety program.

(d) In adopting a fee structure, the department may consider the gross ton miles for railroad operations within this state for each railroad operating in the state to provide for the equitable allocation among railroads of the cost of administering the department's rail safety program.

(e) A fee collected under this section shall be deposited to the credit of the general revenue fund to be used for the rail safety program. (V.A.C.S. Art. 6448a.)

Source Law

Art. 6448a

Sec. 1. The Railroad Commission of Texas is hereby authorized to perform any act and issue any rules and orders as permitted by the Federal Railroad Safety Act of 1970 (45 U.S.C.A. 431 et seq.).

Sec. 2. (a) The Railroad Commission of Texas by rule shall adopt reasonable fees to be assessed annually against railroads operating within the state.

(b) The commission by rule shall establish the method by which the fees are calculated and assessed.

(c) The total amount of fees estimated to be collected by rules adopted by the commission under this section may not exceed the amount estimated by the commission to be necessary to recover the costs of administering the commission's rail safety program.

(d) In adopting a fee structure, the commission may consider the gross ton miles for railroad operations within the State of Texas for each railroad operating in the state to provide for the equitable allocation among railroads of the cost of administering the commission's rail safety program.

(e) A fee collected under this section shall be deposited to the credit of the general revenue fund to be used for the rail safety program.

Revisor's Note

(1) V.A.C.S. Article 6448a allows the railroad commission to "issue any rules." The revised law substitutes "adopt" for "issue" in the context of rules for consistency with terminology used in the Texas administrative procedure law, Chapter 2001, Government Code, and specifically Subchapter B of that chapter, which addresses rulemaking by state agencies.

(2) V.A.C.S. Article 6448a refers to "the Federal Railroad Safety Act of 1970." That law, along with other federal railroad laws, was recodified in 1994 by Pub. L. No. 103-272 in Subtitle 5 of Title 49, United States Code. The revised law cites the recodified sections of the Federal Railroad Safety Act of 1970 as identified in the definition of "Federal railroad safety laws" in 49 C.F.R. Section 209.3.

Revised Law

Sec. 111.102. HAZARDOUS MATERIALS INSPECTIONS. (a) The department may enter private property on which a railroad facility that is connected to but not a part of a general railroad system of transportation is located at a reasonable time and in a reasonable manner to perform an inspection, investigation, or surveillance of facilities, equipment, records, and operations relating to the packaging, loading, or transportation of hazardous materials to determine whether the railroad facility complies with the applicable safety requirements of this chapter or a rule adopted under this chapter.

(b) In performing an inspection under this section, the department may not require a railroad facility owner or operator to alter or cease rail operations.

(c) Any inspection, investigation, or surveillance performed on the site of a manufacturing facility shall be performed in compliance with the safety rules of the facility, including a rule regarding security clearance at the front gate if appropriate. (V.A.C.S. Art. 6448b.)

Source Law

Art. 6448b

Sec. 1. The Railroad Commission of Texas may enter private property on which a railroad facility that is connected to but not a part of a general railroad system of transportation is located at a reasonable time and in a reasonable manner to perform an inspection, investigation, or surveillance of facilities, equipment, records, and operations relating to the packaging, loading, or transportation of hazardous materials to determine whether the railroad facility complies with the applicable safety requirements of this chapter or rules adopted under this chapter.

Sec. 2. In performing an inspection under this article, the commission may not require a railroad facility owner or operator to alter or cease rail operations.

Sec. 3. Any inspection, investigation, or surveillance performed on the site of a manufacturing facility shall be performed in compliance with the safety rules or regulations of the facility, including security clearance at the front gate if appropriate.

Revisor's Note

Section 3, V.A.C.S. Article 6448b, refers to "rules or regulations." The revised law omits the reference to "regulations" because Section 311.005, Government Code (Code Construction Act), defines "rule" to include "regulation."

Revised Law

Sec. 111.103. HAZARDOUS MATERIALS; PACKING AND TRANSPORTATION. (a) Except as provided by Subsection (b), the department by rule may adopt any requirement that:

(1) relates to the safe packing or transportation of hazardous materials; and

(2) is consistent with Chapter 51, Title 49, United States Code, or regulations adopted under that law.

(b) The department may not adopt a requirement for the transportation of hazardous materials by vessel or by aircraft.

Source Law

Art. 6492a. (a) Except as provided by Subsection (b) of this section, the Railroad Commission of Texas may by rule adopt any requirement that relates to the safe packing or transportation of hazardous materials and that is consistent with Chapter 27, Title 49, United States Code, or regulations adopted under that law.

(b) The commission may not adopt a requirement for the transportation of hazardous materials by vessel or by aircraft.

Revisor's Note

(1) V.A.C.S. Article 6492a was enacted into law by the legislature but was not added to or made a part of Title 112, Revised Statutes, by legislative action. Definitions, penalties, and other references that are derived from Title 112, Revised Statutes, and that are generally applicable to "this subtitle" or "this chapter" should be examined carefully to determine whether they applied specifically to Article 6492a and, therefore, Section 111.103.

(2) Subsection (a), V.A.C.S. Article 6492a, allows the Railroad Commission of Texas to adopt rules relating to the safe packing or transportation of hazardous materials that are consistent with Chapter 27, Title 49, United States Code. The federal statutes relating to the safe packing or transportation of hazardous materials in that chapter were recodified without substantive change in 1994 by Pub. L. No. 103-272 as Chapter 51, Title 49, United States Code.

Revised Law

Sec. 111.104. HAZARDOUS MATERIALS; REPORTS. (a) In this section, "hazardous material" means any substance the transportation of which by railroad is included within the coverage of rail car placarding requirements of regulations adopted by the United States Department of Transportation and published in Title 49, Code of Federal Regulations.

(b) A railroad company that transports hazardous materials in or through this state shall file with the department a copy of each hazardous materials incident report that the company files with the United States Department of Transportation under 49 C.F.R. Section 171.16. The copy must be filed not later than the 15th day after the date the incident that forms the basis of the report is discovered.

(c) Not later than April 1 of each year, a railroad company that transports hazardous materials in or through the state shall provide to the department:

(1) a map depicting the location of each railroad main line and branch line that the company owns, leases, or operates in the state;

(2) a map delineating the geographical limits of the company operating divisions or districts and identifying the principal operating officer for the company in each operating division or district;

(3) a primary and secondary telephone number for the company dispatcher responsible for train operations in each operating division or district;

(4) a list of each type of hazardous material by hazard class and the quantity of the material transported over each railroad line owned, leased, or operated by the company during the preceding year; and

(5) the name and address of the company employee in charge of training persons to handle an incident related to hazardous materials.

(d) For the purposes of Subsection (c)(4), "hazard class" means any one of the following, as defined by 49 C.F.R. Part 173, or, with respect to hazardous waste, listed as a substance subject to 40 C.F.R. Part 262:

(1) radioactive material;

(2) explosives, Class A;

(3) explosives, Class B;

(4) poison A;

(5) poison B;

(6) flammable gas;

(7) nonflammable gas;

(8) flammable liquid;

(9) oxidizer;

(10) flammable solid;

(11) corrosive material;

(12) combustible liquid;

(13) etiologic agent;

(14) other regulated material (ORM); or

(15) hazardous waste.

(e) If a substance fits the definition of more than one hazard class, the substance must be classified in accordance with the sequence stated in 49 C.F.R. Section 173.2a.

(f) The department shall compile information submitted to the department under this section for distribution to local emergency management agencies located in jurisdictions containing reported railroad operations.

(g) At least once each year the division of emergency management of the office of the governor shall distribute the information compiled by the department to the appropriate officials for inclusion in local emergency management plans established under Subchapter E, Chapter 418, Government Code. (V.A.C.S. Art. 6419c.)

Source Law

Art. 6419c

Sec. 1. In this Act:

(1) "Commission" means the Railroad Commission of Texas.

(2) "Emergency management program" means an emergency management program established under Subchapter E, Chapter 418, Government Code.

(3) "Division of emergency management" means the division of emergency management of the office of the governor.

(4) "Hazardous material" means any substance the transportation by railroad of which is included within the coverage of rail car placarding requirements of regulations adopted by the federal Department of Transportation and published in Title 49, Code of Federal Regulations.

Sec. 2. (a) A railroad company that transports hazardous materials in or through the state shall file with the commission a copy of each hazardous materials incident report that the company files with the federal Department of Transportation in accordance with 49 C.F.R. 171.16, not later than the 15th day after the date that the incident that forms the basis of the report is discovered.

(b) Not later than April 1 of each year, a railroad company that transports hazardous materials in or through the state shall provide to the commission:

(1) a map depicting the location of each railroad main line and branch line that the company owns, leases, or operates in the state;

(2) a map delineating the geographical limits of the railroad company operating divisions or districts and the principal operating officer for the railroad company in each operating division or district;

(3) a primary and secondary telephone number for the railroad company dispatcher responsible for train operations in each operating division or district;

(4) a list of each type of hazardous material by hazard class and the quantity of the material transported over each railroad line owned, leased, or operated by the railroad company during the preceding year; and

(5) the name and address of the railroad company employee in charge of training persons to handle an incident related to hazardous materials.

(c) For the purposes of Subdivision (4) of Subsection (b) of this section, "hazard class" means any one of the following, as defined by 49 C.F.R. 173, or, with respect to hazardous waste, listed as a substance subject to 40 C.F.R. 262:

(1) radioactive material;

(2) explosives, Class A;

(3) explosives, Class B;

(4) poison A;

(5) poison B;

(6) flammable gas;

(7) nonflammable gas;

(8) flammable liquid;

(9) oxidizer;

(10) flammable solid;

(11) corrosive material;

(12) combustible liquid;

(13) etiologic agent;

(14) other regulated material (ORM); or

(15) hazardous waste.

(d) If a substance fits the definitions of more than one hazard class, the substance must be classified in accordance with the sequence stated in 49 C.F.R. 173.2.

Sec. 3. (a) The commission shall compile information submitted to the commission under this Act for distribution to local emergency management agencies located in jurisdictions containing reported railroad operations.

(b) At least once each year the division of emergency management shall distribute the information compiled by the commission to the appropriate officials for inclusion in local emergency management plans.

Revisor's Note

(1) V.A.C.S. Article 6419c was enacted into law by the legislature but was not added to or made a part of Title 112, Revised Statutes, by legislative action. Definitions, penalties, and other references that are derived from Title 112 and that are generally applicable to "this subtitle" or "this chapter" should be examined carefully to determine whether they applied specifically to Article 6419c and, therefore, Section 111.104.

(2) Section 1(1), V.A.C.S. Article 6419c, defines "commission" as the Railroad Commission of Texas. The revised law omits the definition as unnecessary for the reason stated in the revisor's note to Section 111.004.

(3) Section 2(d), V.A.C.S. Article 6419c, states that if a substance fits the definition of more than one hazard class, the substance must be classified in accordance with the sequence stated in 49 C.F.R. Section 173.2. The revised law substitutes a reference to 49 C.F.R. Section 173.2a because that is the current citation for the federal regulation addressing the classification of a material having more than one hazard.

(4) Section 3(b), V.A.C.S. Article 6419c, refers to "emergency management plans." The revised law adds "established under Subchapter E, Chapter 418, Government Code" because it appears from the context of the article that the reference is to an emergency management plan under that subchapter. Section 1(2) of Article 6419c defines "emergency management program" as an emergency management program under Subchapter E, Chapter 418, Government Code. Although the term "emergency management program" is not used in Article 6419c, an emergency management plan is part of an emergency management program and is also established under Subchapter E, Chapter 418, Government Code.

CHAPTER 112. POWERS AND DUTIES OF RAILROADS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 112.001. DEFINITION OF PERSON ....................... 26

Sec. 112.002. GENERAL RIGHTS OF RAILROADS ................ 27

Sec. 112.003. DAMAGES .................................... 28

[Sections 112.004-112.050 reserved for expansion]

SUBCHAPTER B. ACQUISITION AND USE OF PROPERTY BY RAILROAD OR OF RAILROAD

Sec. 112.051. ENTRY ONTO PRIVATE PROPERTY ................ 29

Sec. 112.052. ACQUISITION OF PROPERTY FOR CHANGE,

RELOCATION, OR ABANDONMENT OF RAILROAD

LINE ..................................... 30

Sec. 112.053. CONDEMNATION OF PROPERTY: WHEN RAILROAD

AND OWNER DISAGREE ....................... 31

Sec. 112.054. CONDEMNATION OF PROPERTY: CERTAIN

TERMINAL SWITCHING RAILROADS ............. 33

Sec. 112.055. RIGHT-OF-WAY ACQUIRED BY CONDEMNATION ...... 34

Sec. 112.056. CONDEMNATION OF PROPERTY FOR CERTAIN

ROADS .................................... 34

Sec. 112.057. CONSTRUCTION ON OR NEAR CERTAIN

WATERWAYS OR ROADS ....................... 35

Sec. 112.058. INTERSECTION OF RAIL LINE AND ROAD OR

STREET ................................... 36

Sec. 112.059. CROSSINGS OF PUBLIC ROADS .................. 36

Sec. 112.060. CONVERSION OF PROPERTY IN CUSTODY OF

RAILROAD COMPANY ......................... 38

Sec. 112.061. SUIT INVOLVING RAILROAD COMPANY PROPERTY ... 40

Sec. 112.062. RAILROAD COMPANY PROPERTY SUBJECT TO EXECUTION;

CHARACTERIZATION OF ROLLING STOCK ........ 41

[Sections 112.063-112.100 reserved for expansion]

SUBCHAPTER C. SAFETY

Sec. 112.101. CATTLE GUARDS .............................. 41

Sec. 112.102. LIABILITY FOR DEATH OR INJURY TO STOCK ..... 42

Sec. 112.103. DUTY TO STOP AND RENDER AID; OFFENSE ....... 43

[Sections 112.104-112.150 reserved for expansion]

SUBCHAPTER D. LIABILITY FOR INJURIES TO EMPLOYEES

Sec. 112.151. APPLICABILITY OF SUBCHAPTER ................ 44

Sec. 112.152. LIABILITY GENERALLY FOR INJURY TO OR

DEATH OF EMPLOYEE ........................ 45

Sec. 112.153. CONTRIBUTORY NEGLIGENCE .................... 46

Sec. 112.154. ASSUMED RISK ............................... 48

Sec. 112.155. CERTAIN PROVISIONS VOID .................... 50

Sec. 112.156. LIABILITY OFFSET ........................... 51

Sec. 112.157. CONSTRUCTION OF CERTAIN SECTIONS ........... 51

Sec. 112.158. INJURY TO FELLOW SERVANT ................... 52

[Sections 112.159-112.200 reserved for expansion]

SUBCHAPTER E. STRUCTURES AND MATERIALS NEAR RAILROAD OR RAILWAY

Sec. 112.201. HEIGHT OF STRUCTURES OVER TRACKS ........... 54

Sec. 112.202. DISTANCE OF STRUCTURES AND MATERIALS FROM

TRACKS ................................... 54

Sec. 112.203. EXCEPTION .................................. 55

Sec. 112.204. RULES ...................................... 57

Sec. 112.205. WAIVER OF PROVISION ........................ 57

Sec. 112.206. CIVIL PENALTY .............................. 58

CHAPTER 112. POWERS AND DUTIES OF RAILROADS

SUBCHAPTER A. GENERAL PROVISIONS

Revised Law

Sec. 112.001. DEFINITION OF PERSON. For each provision in this chapter added April 1, 2011, as part of the revision of former Title 112, Revised Statutes:

(1) "person" includes a corporation, as provided by Section 312.011, Government Code; and

(2) the definition of "person" assigned by Section 311.005, Government Code, does not apply. (New.)

Revisor's Note

Revised Law

Sec. 112.002. GENERAL RIGHTS OF RAILROADS. (a) A railroad company has the right to succession.

(b) A railroad company may:

(1) sue, be sued, plead, and be impleaded in its corporate name;

(2) have and use a seal and alter the seal at will;

(3) receive and convey persons and property on its railway by any mechanical power, including the use of steam;

(4) regulate the time and manner in which, and the compensation for which, passengers and property are transported, subject to the provisions of law;

(5) exercise the power of eminent domain for the purposes prescribed by this title or Subtitle D;

(6) purchase, hold, and use all property as necessary for the construction and use of its railway, stations, and other accommodations necessary to accomplish company objectives, and convey that property when no longer required for railway use; and

(7) take, hold, and use property granted to the company to aid in the construction and use of its railway, and convey that property in a manner consistent with the terms of the grant when the property is no longer required for railway use. (V.A.C.S. Art. 6341.)

Source Law

Art. 6341. Railroad corporations shall have the following other rights:

1. To have succession, and in their corporate name may sue and be sued, plead and be impleaded.

2. To have and use a seal, which it may alter at pleasure.

3. To receive and convey persons and property on its railway by the power and force of steam, or by any mechanical power.

4. To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor, subject to the provisions of law.

5. Of eminent domain for the purposes prescribed in this title.

6. To purchase, hold and use all such real estate and other property as may be necessary for the construction and use of its railway, stations and other accommodations necessary to accomplish the objects of its incorporation, and to convey the same when no longer required for the use of such railway.

7. To take, hold and use such voluntary grants of real estate and other property as shall be made to it in aid of the construction and use of its railway, and to convey the same when no longer required for the uses of such railway, in any manner not incompatible with the terms of the original grant.

Revisor's Note

V.A.C.S. Article 6341 refers to "real estate and other property." The revised law omits the reference to "real estate" because under Section 311.005, Government Code (Code Construction Act), "property" includes both real and personal property.

Revised Law

Sec. 112.003. DAMAGES. A railroad subject to this subtitle or Subtitle D is liable to a person, firm, or corporation injured for the damages resulting from:

(1) a prohibited or unlawful act or thing that the railroad does or causes or allows to be done; or

(2) failure of the railroad to perform an act the railroad is required to perform under this subtitle or Subtitle D. (V.A.C.S. Art. 6475.)

Source Law

Art. 6475. If any railroad subject to this title shall do, cause or permit to be done any matter, act or thing prohibited or declared to be unlawful, or shall omit to do any act, matter or thing herein required to be done by it, such railroad shall be liable to the person or persons, firm or corporation injured thereby for the damages sustained in consequence of such violation.

Revisor's Note

(1) V.A.C.S. Article 6475 refers to a "matter, act or thing" done, caused, or permitted to be done by a railroad. The revised law omits the reference to "matter" because, in the context of this phrase, "matter" is included in the meaning of "act or thing."

(2) V.A.C.S. Article 6475 refers to an "act, matter or thing" that a railroad is required but omits to do. The revised law omits the references to "matter" and "thing" because in the context of this phrase, "matter" and "thing" are included within the meaning of "act."

(3) V.A.C.S. Article 6475 refers to "person or persons." The revised law omits the reference to "persons" because under Section 311.012(b), Government Code (Code Construction Act), a reference to the singular includes the plural.

[Sections 112.004-112.050 reserved for expansion]

SUBCHAPTER B. ACQUISITION AND USE OF PROPERTY BY RAILROAD OR OF RAILROAD

Revised Law

Sec. 112.051. ENTRY ONTO PRIVATE PROPERTY. (a) A railroad company is entitled to make an examination and survey for the company's proposed railway, to be performed as necessary to select the most advantageous route for the proposed railway, and, subject to Subsection (c), may enter on the lands or waters of any person or corporation for that purpose.

(b) A railroad company is responsible for any damages arising from an examination or survey under this section.

(c) Except for the purposes of performing a lineal survey, a railroad company may not enter on private real property for the purpose of condemning the property or any material on the property for any purpose until the company agrees with and pays the owner of the property all damages that may be caused to the owner's property by the condemnation of the property and by the construction of the company's road. (V.A.C.S. Arts. 6318, 6337.)

Source Law

Art. 6318. Every railroad corporation shall have the right to cause such examination and survey for its proposed railway to be made as may be necessary to the selection of the most advantageous route, and for such purpose may enter upon the lands or waters of any person or corporation, but subject to responsibility for all damages that may be occasioned thereby.

Art. 6337. No railroad company shall enter upon, except for a lineal survey, any real estate whatever, the same being private property, for the purpose of taking and condemning the same, or any material thereon, for any purpose whatever, until the said company shall agree with and pay the owner thereof all damages that may be caused to the lands and property of said owner by the condemnation of said real estate and property, and by the construction of such road.

Revisor's Note

(1) V.A.C.S. Article 6337 refers to the "taking and condemning" of property. The revised law omits "taking" because, in the context of the source law, the meaning of that term is included in the meaning of "condemning."

(2) V.A.C.S. Article 6337 refers to damages caused to "lands and property." The revised law omits the reference to "lands" because the meaning of that term is included in the meaning of "property."

Revised Law

Sec. 112.052. ACQUISITION OF PROPERTY FOR CHANGE, RELOCATION, OR ABANDONMENT OF RAILROAD LINE. (a) Subject to Subsection (b), a railroad company or a receiver of a railroad that changes, relocates, or abandons a line of railroad in this state may acquire by condemnation or otherwise land for:

(1) right-of-way;

(2) depot grounds;

(3) shops;

(4) roundhouses;

(5) water supply sites;

(6) sidings;

(7) switches;

(8) spurs; or

(9) any other purpose connected with or necessary to the building or operating of the line of railroad, as changed, relocated, or abandoned.

(b) Property acquired under this section must be declared for and charged with public use. (V.A.C.S. Art. 6351.)

Source Law

Art. 6351. A railroad corporation or a receiver of a railroad that changes, relocates, or abandons a line of railroad in this State may acquire by condemnation or otherwise all lands for right of way, depot grounds, shops, roundhouses, water supply sites, sidings, switches, spurs or any other purposes connected with or necessary to the building, operating or running of the railroad, as changed, relocated or abandoned; provided that property acquired under this article is declared for and charged with public use.

Revisor's Note

V.A.C.S. Article 6351 refers to the "operating or running" of a railroad. The revised law omits "running" because the meaning of that term is included in the meaning of "operating."

Revised Law

Sec. 112.053. CONDEMNATION OF PROPERTY: WHEN RAILROAD COMPANY AND OWNER DISAGREE. (a) A railroad company may acquire property by condemnation if the company cannot agree with the owner for the purchase of the property and the property is required for any of the following purposes:

(1) the incorporation of the railroad;

(2) the transaction of company business;

(3) depots, station buildings, and machine and repair shops;

(4) the construction of reservoirs for the water supply;

(5) the right-of-way, or new or additional right-of-way;

(6) a change or relocation;

(7) a roadbed;

(8) the shortening of a line;

(9) the reduction of grades;

(10) the double tracking of the railroad or the construction and operation of tracks; or

(11) any other purpose connected with or necessary to the building, operating, or running of the railroad.

(b) A railroad company may not, under this section, condemn property that is located more than two miles from the company's right-of-way. (V.A.C.S. Art. 6336.)

Source Law

Art. 6336. (a) A railroad corporation may acquire property by condemnation if the corporation cannot agree with the owner for the purchase of the property and the property is required for the following purposes:

(1) the incorporation of the railroad;

(2) the transaction of railroad corporation business;

(3) depots, station buildings, and machine and repair shops;

(4) the construction of reservoirs for the water supply;

(5) the right of way, or new or additional right of way;

(6) a change or relocation;

(7) a road bed;

(8) shortening a line;

(9) reducing grades;

(10) double tracking the railroad or constructing and operating tracks; or

(11) any other purpose connected with or necessary to the building, operating, or running of the railroad.

(b) A railroad corporation may not condemn property under this article that is located more than two miles from the right of way of the railroad corporation.

Revised Law

Sec. 112.054. CONDEMNATION OF PROPERTY: CERTAIN TERMINAL SWITCHING RAILROADS. (a) This section applies only to the condemnation of property for a terminal switching railroad that:

(1) handles fewer than 10,000 but more than 3,000 carloads a year; and

(2) operates in a single county that:

(A) has a population of 110,000 or more;

(B) is not adjacent to the Texas border; and

(b) The power to condemn property given to a railroad company under this subtitle or Subtitle D, including Section 112.052 or 112.053, does not apply to any property used for or designated under local zoning regulations for residential use unless the use of the condemned property is authorized under or in conformity with local zoning or development regulations. (V.A.C.S. Art. 6336a.)

Source Law

Art. 6336a. (a) This article applies only to the condemnation of property for a terminal switching railroad handling fewer than 10,000 but more than 3,000 carloads a year that operates in a single county with a population of 110,000 or more that is not adjacent to the Texas border and does not contain a portion of a national forest.

(b) The power to condemn property given to a railroad company under this title, including Articles 6316a, 6336, and 6351, does not apply to any property used for or designated under local zoning regulations for residential use unless the use of the condemned property is authorized under or in conformity with local zoning or development regulations.

Revisor's Note

V.A.C.S. Article 6336a refers to a railroad company's power to condemn property under Title 112, Revised Statutes, including Article 6316a. The revised law omits the reference to Article 6316a because that article was repealed by Chapter 1115, Acts of the 80th Legislature, Regular Session, 2007.

Revised Law

Sec. 112.055. RIGHT-OF-WAY ACQUIRED BY CONDEMNATION. (a) A right-of-way that a railway company in this state acquires by condemnation does not include a fee simple estate in public or private land.

(b) A right-of-way that a railway company acquires by condemnation is not lost on forfeiture or expiration of the railway company's charter. The right-of-way remains subject to an extension of the charter or the grant of a new charter, and a new condemnation of the way is not required. (V.A.C.S. Art. 6339.)

Source Law

Art. 6339. The right of way secured by condemnation to any railway company in this State shall not be construed to include the fee simple estate in lands, either public or private, nor shall the same be lost by forfeiture or expiration of the charter, but shall remain subject to an extension of the charter or the grant of a new charter over the same way without a new condemnation.

Revised Law

Sec. 112.056. CONDEMNATION OF PROPERTY FOR CERTAIN ROADS. (a) Subject to Subsection (b), a corporation created to build, maintain, and operate a line of railroads to a mine, gin, quarry, manufacturing plant, or mill may acquire by condemnation land necessary for the right-of-way for a road connecting the mine, gin, quarry, manufacturing plant, or mill to the nearest line of railroad.

(b) The corporation may condemn property under this section only if the corporation declares itself a public highway and common carrier, placing the road under the control of the department. (V.A.C.S. Art. 6550.)

Source Law

Art. 6550. Corporations created to build, maintain and operate a line of railroads to mines, gins, quarries, manufacturing plants, and mills, shall have the right to condemn land necessary for the right of way for such road from and between such mines, gin, quarry, manufacturing plant or mill and the nearest line of railroad, provided, that no such corporation shall have said right of eminent domain until it shall declare itself a public highway and common carrier, thus placing said road under the control of the Railroad Commission.

Revised Law

Sec. 112.057. CONSTRUCTION ON OR NEAR CERTAIN WATERWAYS OR ROADS. (a) A railroad company may construct the company's road across, along, or on any stream of water, water course, street, highway, turnpike, or canal where the route of the company's railway intersects or touches the stream, water course, street, highway, turnpike, or canal.

(b) The railroad company shall:

(1) restore the stream, water course, street, highway, turnpike, or canal to its former state or to a state in which its usefulness is not unnecessarily impaired; and

(2) keep the crossing in repair. (V.A.C.S. Art. 6320.)

Source Law

Art. 6320. Such corporation shall have the right to construct its road across, along, or upon any stream of water, water course, street, highway, plank road, turnpike, or canal when the route of said railway shall intersect or touch; but such corporation shall restore the stream, water course, street, highway, plank road, turnpike, or canal thus intersected or touched, to its former state, or to such state as not to unnecessarily impair its usefulness, and shall keep such crossing in repair.

Revisor's Note

(1) V.A.C.S. Article 6320 refers to "[such] corporation," referring to a "railroad corporation." The revised law substitutes a reference to "railroad company" for the reference to "corporation" for the reason stated in the revisor's note to Section 81.002.

(2) V.A.C.S. Article 6320 refers to a "plank road" among other types of roads and ways. The revised law omits the reference to a "plank road" because that type of road, common in the United States in the first half of the 19th century, is obsolete, and a way previously covered by a plank road, if still in use, would be covered by another type of surface.

Revised Law

Sec. 112.058. INTERSECTION OF RAIL LINE AND ROAD OR STREET. Sections 112.051, 112.053, 112.054, 112.055, 112.057, 112.059, and 112.061 do not affect a law that requires a railroad company to provide a proper crossing at each intersection of a road or street. (V.A.C.S. Art. 6326.)

Source Law

Art. 6326. Nothing in this chapter shall be construed to affect the law requiring railroad companies to provide proper crossings at intersection of all roads and streets.

Revised Law

Sec. 112.059. CROSSINGS OF PUBLIC ROADS. (a) Each railroad company in this state shall place and keep the portion of the company's roadbed and right-of-way over or across which a public county road runs in proper condition for the use of the traveling public.

(b) A railroad company is liable for a penalty of $10 for each week the company does not comply with the requirements of this section if:

(1) the overseer of a public road gives written notice to the company's person responsible for maintaining the area where the work is needed; and

(2) the company fails to complete the work or repairs within 30 days after the date written notice is given under Subdivision (1).

(c) A county attorney, on the making of an affidavit of the facts by any person, shall immediately institute a suit against the railroad company to recover the penalty provided by this section. A county attorney's wilful failure or refusal to comply with this subsection is sufficient cause for the county attorney to be removed from office unless it is evident that the suit could not have been maintained.

(d) A proceeding under this section shall be conducted in the name of the county and in the same manner as a proceeding in a civil suit.

(e) A county attorney is entitled to a fee of $10, taxed as costs, for each suit maintained by the county attorney under this section. If two or more penalties are sought in the same suit only one fee may be recovered under this subsection.

(f) If the county is cast in the suit, the county may not be charged costs.

(g) A penalty collected under this section shall be deposited in the road and bridge fund of the county in which the suit is brought. (V.A.C.S. Art. 6327.)

Source Law

Art. 6327. Every railroad company in this State shall place and keep that portion of its roadbed and right of way, over or across which any public county road may run, in proper condition for the use of the traveling public, and in case of its failure to do so for thirty days after written notice given to the section boss of the section where such work or repairs are needed by the overseer of such public road, it shall be liable to a penalty of ten dollars for each week such railroad company may fail or neglect to comply with the requirements of this article. Such penalty shall go to the road and bridge fund of the county in which the suit is brought; and the county attorney, upon the making of an affidavit of the facts by any person, shall at once institute against the company violating any provision of this article suit in the proper court to recover such penalty or penalties, and his wilful failure or refusal to do so shall be sufficient cause for his removal from office, unless it is evident that such suit could not have been maintained. The proceedings under this article shall be conducted in the same manner as civil suits. The county attorney attending to such suits shall be entitled to a fee in each case of ten dollars, to be taxed as costs; provided, that when two or more penalties are sought to be recovered in the same suit, but one such fee shall be allowed. Such suits shall be conducted in the name of the county, and if the county be cast in the suit no costs shall be charged against it.

Revisor's Note

(1) V.A.C.S. Article 6327 refers to a "section boss" of a "section" of a railroad where work or repairs are needed. Because the term "section boss" is no longer commonly used in the railroad business, the revised law substitutes language generically describing the person referred to in the source law as a "section boss" according to the function performed by that person as "the company's person responsible for maintaining the area" where the work or repairs are needed.

(2) V.A.C.S. Article 6327 requires a county attorney to file a suit "in the proper court" under certain circumstances. The revised law omits the quoted language as unnecessary because a suit may only be brought in a court, and the general laws of civil jurisdiction determine which courts have jurisdiction over a matter. For example, see Sections 24.007-24.011, Government Code, for the general jurisdiction of district courts.

Revised Law

Sec. 112.060. CONVERSION OF PROPERTY IN CUSTODY OF RAILROAD COMPANY. (a) A railroad company in this state or a receiver of a railroad company in this state may not confiscate or otherwise convert to the company's or receiver's own use, in whole or in substantial part, a carload shipment of any article or commodity of freight traffic received by the company or receiver for transportation and delivery without the express consent of the owner or consignee of the shipment.

(b) An act of an agent, officer, or employee of a railroad company or receiver under this section that is within the apparent scope of the agent's, officer's, or employee's duties or authority with respect to the confiscation or conversion is considered to be an act of the company or receiver.

(c) This section does not apply to a conversion of freight that has been damaged or intermingled with other freight in wrecks, or to refused or unclaimed freight, that the railroad is unable to deliver.

(d) A railroad company or receiver that violates this section is subject to:

(1) a penalty in favor of the state of not less than $125 or more than $500; and

(2) an additional penalty in favor of the owner or consignee of the converted shipment equal to twice the amount of the purchase price of the converted shipment. (V.A.C.S. Arts. 6366, 6367.)

Source Law

Art. 6366. No railroad company or receiver thereof, in this State shall confiscate, or otherwise convert to its own use, any carload shipment or substantial portion of any such carload shipment of any article or commodity of freight traffic received by it, or them, for transportation and delivery, without the express consent of the owner or consignee thereof, and the acts of the agents, officers and employés of such carrier or receiver within the apparent scope of their duties or authority with respect to such conversion or confiscation shall be deemed to be the acts of such railway company, receiver or other carrier. The provisions of this article shall not apply to conversion of freight where the same has been damaged or intermingled with other freight in wrecks, nor to refused or unclaimed freight, the delivery of which the railroad is unable to effect.

Art. 6367. In addition to all other remedies or penalties that may be provided by law therefor, the violation of any provision of the preceding article shall subject the railway company, or receiver or other common carrier so offending to a penalty of not less than one hundred and twenty-five nor more than five hundred dollars in favor of the State of Texas, and a further penalty of twice the amount of the purchase price of the converted shipment in favor of the owner or consignee thereof.

Revisor's Note

(1) V.A.C.S. Article 6366 prohibits the conversion of a carload shipment by a "railroad company or receiver thereof." The article later states that an act of the agents, officers, and employees of "such carrier or receiver" within the scope of that person's duties or authority relating to the shipment are considered the acts of the "railway company, receiver or other carrier." The revised law substitutes "railroad company or receiver" for "such carrier or receiver" and "railway company, receiver or other carrier" for consistency within the provision and since the provision prohibits the conversion of shipments only by a railroad company or a railroad company's receiver.

(2) V.A.C.S. Article 6367 provides a penalty for certain violations "[i]n addition to all other remedies or penalties that may be provided by law therefor." The revised law omits the quoted language as unnecessary because an accepted general principle of statutory construction requires a statute to be given cumulative effect with other statutes unless the statute provides otherwise or unless the statutes are in conflict.

(3) V.A.C.S. Article 6367 imposes a penalty on a "railway company, or receiver or other common carrier" that violates Article 6366. The revised law substitutes "railroad company or receiver" for the quoted language since Article 6366 prohibits the conversion of shipments only by a railroad company or a railroad company's receiver.

Revised Law

Sec. 112.061. SUIT INVOLVING RAILROAD COMPANY PROPERTY. (a) If a railroad company is sued for property occupied by the company for railroad purposes or for damages to property occupied by the company for railroad purposes, the court in which the suit is pending may determine all matters in dispute between the parties, including the condemnation of the property, on petition or cross bill by the defendant requesting that remedy.

(b) A plea for condemnation under Subsection (a) is considered an admission of the plaintiff's title to the property. (V.A.C.S. Art. 6338.)

Source Law

Art. 6338. When any railroad company is sued for any property occupied by it for railroad purposes, or for damages thereto, the court in which such suit is pending may determine all matters in dispute between the parties, including the condemnation of the property, upon petition or cross bill, asking such remedy by defendant, but the plea for condemnation shall be an admission of the plaintiff's title to such property.

Revised Law

Sec. 112.062. RAILROAD COMPANY PROPERTY SUBJECT TO EXECUTION; CHARACTERIZATION OF ROLLING STOCK. (a) All or any part of a railroad company's real and personal property is subject to execution and sale in the same manner as the property of individuals.

(b) No portion of a railroad company's real or personal property is exempt from execution and sale.

(c) The rolling stock and all other movable property belonging to a railroad company is considered personal property. (V.A.C.S. Art. 6420.)

Source Law

Art. 6420. The rolling stock and all other movable property belonging to any railroad company or corporation shall be considered personal property. Its real and personal property or any part thereof shall be liable to execution and sale in the same manner as the property of individuals, and no such property shall be exempt from execution and sale.

[Sections 112.063-112.100 reserved for expansion]

SUBCHAPTER C. SAFETY

Revised Law

Sec. 112.101. CATTLE GUARDS. (a) A railroad company whose railroad passes through a field or enclosure shall place and keep in good repair a good and sufficient cattle guard or stop at each location the railroad enters the field or enclosure.

(b) If a field or enclosure through which a railway passes is enlarged or extended, or the owner of any land over which a railway runs clears and opens a field so as to include the track of a railway, the railroad company shall place and keep in repair good and sufficient cattle guards or stops at the margins of the extended enclosures or fields or the new fields.

(c) A cattle guard or stop required by this section shall be constructed and kept in repair to protect the fields and enclosures from the depredations of stock of any kind.

(d) If a railroad company fails to construct and keep in repair a cattle guard or stop required by this section, the owner of the enclosure or field may:

(1) have the required cattle guards or stops placed at the proper places and kept in repair; and

(2) recover from the company the costs of constructing or repairing the required cattle guards or stops, unless it is shown that the enlargement or extension was made capriciously and with intent to annoy and molest the company.

(e) A railroad company that neglects to construct or keep in repair a proper cattle guard or stop as required by this section is liable to a party injured by the neglect for all damages that may result from the neglect. The injured party may seek to recover the damages by filing suit. (V.A.C.S. Art. 6400.)

Source Law

Art. 6400. Every railroad company whose railroad passes through a field or inclosure, shall place a good and sufficient cattle-guard or stop at the points of entering such field or inclosure, and keep them in good repair. If such field or inclosure shall be enlarged or extended, or the owner of any land over which a railway runs shall clear and open a field so as to embrace the track of a railway, such railroad company shall place good and sufficient cattle-guards or stops at the margins of such extended inclosures or fields or such new fields and keep the same in repair. Such cattle-guards or stops shall be so constructed and kept in repair as to protect such fields and inclosures from the depredations of stock of every description. If such company fails to construct and keep in repair such cattle-guards and stops, the owner of such inclosure or field may have such cattle-guards and stops placed at the proper places and kept in repair, and may recover the costs thereof from such railroad company, unless it be shown that said enlargement or extension was made capriciously and with intent to annoy and molest such company. If any company neglects to construct the proper cattle-guards and stops and keep the same in repair as required in this article, such company shall be liable to the party injured by such neglect for all damages that may result from such neglect, to be recovered by suit.

Revised Law

Sec. 112.102. LIABILITY FOR DEATH OR INJURY TO STOCK. (a) Subject to Subsection (b), a railroad company is liable to the owner for the value of all stock killed or injured by the company's locomotives and cars operating over the company's railways, regardless of whether the county or subdivision of a county in which the death or injury occurs has, under Subchapter B or D, Chapter 143, Agriculture Code, prohibited certain animals from running at large.

(b) A railroad company that fences its railway is liable only for injury to stock that results from a want of ordinary care. (V.A.C.S. Art. 6402.)

Source Law

Art. 6402. Each railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle. If said company fence its road it shall only be liable for injury resulting from a want of ordinary care.

Revisor's Note

V.A.C.S. Article 6402 refers to "the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle." The prohibition of the running at large of horses, mules, jacks, and jennets has been codified as Subchapter B, Chapter 143, Agriculture Code, and the prohibition of the running at large of cattle has been codified in Subchapter D of the same chapter. The revised law is drafted accordingly. The revised law substitutes "certain animals" for the list of specific animals for simplicity, and because the law prohibiting horses, mules, jacks, and jennets from running at large was amended in 1953 to include prohibitions against other animals running at large.

Revised Law

Sec. 112.103. DUTY TO STOP AND RENDER AID; OFFENSE. (a) In this section, "operator" means the person assigned by a railroad company to be responsible for the operation of a train.

(b) An operator who is involved, while operating a locomotive, in an accident resulting in injury to or death of a person or damage to a vehicle that is driven or attended by a person shall immediately stop the locomotive at the scene of the accident.

(c) The operator shall render to a person injured in the accident reasonable assistance, including transporting, or the making of arrangements for transporting, the person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if the injured person requests transportation.

(d) A person who violates this section commits an offense. An offense under this subsection is a Class C misdemeanor. (V.A.C.S. Art. 6419b; New.)

Source Law

Art. 6419b

Sec. 1. The person assigned by a railroad corporation to be responsible for the operation of the train who is involved, while operating a locomotive, in an accident resulting in injury to or death of any person or damage to any vehicle that is driven or attended by a person shall immediately stop the locomotive at the scene of the accident.

Sec. 2. The person responsible for the operation of the train shall render to any person injured in the accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of the person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if the carrying is requested by the injured person.

Sec. 3. A person who violates this article commits an offense. An offense under this article is a Class C misdemeanor.

Revisor's Note

The definition of "operator" is added to the revised law for drafting convenience and to avoid frequent, unnecessary repetition of the substance of the definition.

[Sections 112.104-112.150 reserved for expansion]

SUBCHAPTER D. LIABILITY FOR INJURIES TO EMPLOYEES

Revised Law

Sec. 112.151. APPLICABILITY OF SUBCHAPTER. Notwithstanding any other law, this subchapter does not apply to the portion of a person's, receiver's, or corporation's operations that:

(1) consists solely of the fabrication, manufacture, repair, or storage of rail rolling stock; or

(2) uses rail cars solely as a part of its own internal manufacturing or production process. (V.A.C.S. Art. 6432A.)

Source Law

Art. 6432A. Notwithstanding any other law, this chapter applies to any person, receiver, or corporation except for the portion of the operations of the person, receiver, or corporation that:

(1) consists solely of the fabrication, manufacture, repair, or storage of rail rolling stock; or

(2) uses rail cars solely as a part of its own internal manufacturing or production process.

Revised Law

Sec. 112.152. LIABILITY GENERALLY FOR INJURY TO OR DEATH OF EMPLOYEE. (a) A corporation, receiver, or other person operating a railroad in this state is liable for damages to a person who, while employed by the railroad operator, is injured as a result of:

(1) the negligence of an officer, agent, or employee of the railroad operator; or

(2) any defect or insufficiency due to the railroad operator's negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

(b) If an employee dies as a result of the negligence, defect, or insufficiency described by Subsection (a), the railroad operator is liable to the employee's personal representative for the benefit of the employee's surviving spouse and children and the employee's parents or, if the employee is not survived by a spouse, child, or parent, to the employee's next of kin who is dependent on the employee.

(c) Damages recovered under Subsection (b) are not liable for the debts of the deceased and shall be divided among the persons entitled to the benefit of the action who are living, in shares the fact finder considers proper.

(d) An action under Subsection (b) may be brought without administration by all parties entitled to damages under that subsection, or by any one or more of those parties, for the benefit of all of those parties. If all parties entitled to recover are not before the court, the action may proceed for the benefit of the parties who are before the court. (V.A.C.S. Art. 6439.)

Source Law

Art. 6439. Every corporation, receiver, or other person, operating any railroad in this State, shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad, or in case of death of such employé, to his or her personal representative for the benefit of the surviving widow and children, or husband and children, and mother and father of the deceased, and, if none, then of the next kin dependent upon such employé for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier; or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. The amount recovered shall not be liable for debts of deceased and shall be divided among the persons entitled to the benefit of the action or such of them as shall be alive, in such shares as the jury, or court trying the case without a jury, shall deem proper. In case of the death of such employé, the action may be brought without administration by all the parties entitled thereto, or by any one or more of them, for the benefit of all, and, if all parties be not before the court, the action may proceed for the benefit of such of said parties as are before the court.

Revisor's Note

V.A.C.S. Article 6439 refers to division of damages in shares determined by "the jury, or court trying the case without a jury." The revised law substitutes "fact finder" for the quoted language because that term describes the role of the jury or, if a trial is held without a jury, of the judge trying the case.

Revised Law

Sec. 112.153. CONTRIBUTORY NEGLIGENCE. (a) In an action under Section 112.152, the employee's contributory negligence is not a bar to recovery but the fact finder shall reduce the employee's damages in proportion to the amount of contributory negligence attributable to the employee.

(b) An employee may not be found contributorily negligent in a case in which the railroad operator's violation of a statute enacted for the safety of employees contributed to the employee's injury or death. (V.A.C.S. Art. 6440.)

Source Law

Art. 6440. In all actions brought against any such common carrier or railroad under or by virtue of any provision of the foregoing article and the three succeeding articles to recover damages for personal injuries to an employé, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé; provided, that no such employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violations by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.

Revisor's Note

(1) V.A.C.S. Article 6440 refers to an action "against any such common carrier or railroad" brought under "the foregoing article [V.A.C.S. Article 6439] and the three succeeding articles [V.A.C.S. Articles 6441, 6442, and 6443]." The revised law references only Section 112.152, the section in which Article 6439 is revised, because Article 6439 is the only one of the listed provisions under which the action may be brought.

(2) V.A.C.S. Article 6440 refers to an action against a "common carrier." Throughout this subchapter, in the context of liability under Article 6439, the revised law omits references to "common carrier" and substitutes references to "railroad operator" because under Section 2, Article X, Texas Constitution, railroads (referred to in this subchapter as "railroad operators") are declared to be "common carriers" and the action under Article 6439 may be brought only against a railroad operator and not any other type of common carrier.

(3) V.A.C.S. Article 6440 refers to a diminishment of damages "by the jury." The revised law substitutes "fact finder" for the reference to the jury for accuracy because, as indicated by Article 6439, revised as Section 112.152, under which the action would be brought, the action might not be before a jury, in which case the court would be the fact finder and would determine the measure of damages.

Revised Law

Sec. 112.154. ASSUMED RISK. (a) The plea of assumed risk is not available as a bar to recovery of damages in a suit brought in a court in this state against a corporation, receiver, or other person operating a railroad, interurban railway, or street railway in this state for the recovery of damages for the death of or personal injury to an employee caused by the wrong or negligence of the railroad or railway operator. An employee assumes the ordinary risk incident to the employee's employment but does not assume the risk resulting from any negligence of the employee's employer, regardless of whether the negligence is known to the employee.

(b) If in a suit described by Subsection (a) it is alleged and proven that the deceased or injured employee was negligent in continuing in the service of the railroad or railway operator in view of the risk, dangers, and hazards of which the employee knew or must necessarily have known, in the ordinary performance of the employee's duties, that fact does not bar the employee's recovery, but is considered contributory negligence. If contributory negligence described by this subsection proximately caused or contributed to the cause of the death or injury, the damages recoverable by the employee or the employee's heirs or representatives shall be reduced only in proportion to the amount of negligence attributable to the employee.

(c) An employee of a railway company who is injured while engaged in the operation of a train in this state that is propelled by two or more engines is not considered to have assumed the risk of that injury if the injury is a result of the operation of two or more engines on the train rather than one.

(d) In an action against a railroad operator under Section 112.152, an employee may not be held to have assumed the risk of the employee's employment in a case in which the railroad operator's violation of a statute enacted for the safety of employees contributed to the employee's injury or death. (V.A.C.S. Arts. 6437, 6438, 6441.)

Source Law

Art. 6437. The plea of assumed risk shall not be available as a bar to recovery of damages in any suit brought in any court of this State against any corporation, receiver or other person, operating any railroad, interurban railway or street railway in this State for the recovery of damages for the death or personal injury of any employé or servant caused by the wrong or negligence of such person, corporation or receiver; it being contemplated that while the employé does assume the ordinary risk incident to his employment he does not assume the risk resulting from any negligence on the part of his employer, though known to him.

Where, however, in any such suit, it is alleged and proven that such deceased or injured employé was chargeable with negligence in continuing in the service of any such corporation, receiver or person above named in view of the risk, dangers and hazards of which he knew or must necessarily have known, in the ordinary performance of his duties, such fact shall not operate to defeat recovery, but the same shall be treated and considered as constituting contributory negligence, and if proximately causing or contributing to cause the death or injury in question, it shall have the effect of diminishing the amount of damages recoverable by such employé, or his heirs or representatives in case of the employé's death, only in proportion to the amount of negligence so attributable to such employé.

Art. 6438. Employés of railway companies employed by said companies in the operation of trains within this State, propelled by two or more engines, shall not be held to assume the risk, if any there be, incident to their employment; provided, they be injured while engaged in the operation of such trains and that such injury was occasioned by reason of the operation of two or more engines on such train instead of one.

Art. 6441. In any action brought against any common carrier under or by virtue of any provision of the two preceding articles to recover damages for injuries to or the death of any of its employés, such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.

Revisor's Note

(1) V.A.C.S. Article 6437 refers to "any employé or servant." The revised law omits "servant" as unnecessary because that term is included in the meaning of "employee." Similar changes have been made throughout this subchapter.

(2) V.A.C.S. Article 6441 refers to an action brought under one of the "two preceding articles [V.A.C.S. Articles 6439 and 6440]." The revised law refers only to the section in which Article 6439 is revised because Article 6439 is the only one of the listed provisions under which the action may be brought.

Revised Law

Sec. 112.155. CERTAIN PROVISIONS VOID. A provision of a contract, rule, or device the purpose of which is to exempt a railroad operator from liability under Section 112.152 is void to the extent of the purported exemption. (V.A.C.S. Art. 6442 (part).)

Source Law

Art. 6442. Any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by the three preceding articles shall to that extent be void; provided, that, … .

Revisor's Note

(1) V.A.C.S. Article 6442 refers to the "purpose or intent" of a "contract, rule, regulation or device." The revised law omits "intent" as unnecessary because the meaning of that term is included in the meaning of "purpose." The revised law also omits "regulation," because under Section 311.005(5), Government Code (Code Construction Act), "rule" includes "regulation."

(2) V.A.C.S. Article 6442 refers to an exemption from liability created by V.A.C.S. Articles 6439, 6440, and 6441. The revised law refers only to Section 112.152, the section in which Article 6439 is revised, because Article 6439 is the only one of the listed provisions under which liability is created.

Revised Law

Sec. 112.156. LIABILITY OFFSET. In an action against a railroad operator under Section 112.152, the railroad operator may offset the railroad operator's liability by the amount of the railroad operator's contribution or payment to any insurance, relief benefit, or indemnity from which benefits have been paid to the injured employee or another person entitled to the benefits as a result of the injury or death that is the subject of the action. (V.A.C.S. Art. 6442 (part).)

Source Law

Art. 6442. … in any action brought against any such common carrier by virtue of said articles, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit or indemnity that may have been paid to the injured employé, or the person entitled thereto, on account of the injury or death for which said action was brought.

Revised Law

Sec. 112.157. CONSTRUCTION OF CERTAIN SECTIONS. (a) Sections 112.152, 112.153, 112.154(d), 112.155, and 112.156 do not:

(1) limit the duty or liability of a railroad operator or impair the rights of an employee under the Revised Statutes of 1925; or

(2) affect a right of action under another law of this state.

(b) Except as provided by Section 112.151, a section listed in Subsection (a) controls over any other provision of the Revised Statutes of 1925 with which it conflicts. (V.A.C.S. Art. 6443.)

Source Law

Art. 6443. Nothing in the provisions of the four preceding articles shall be held to limit the duty or liability of common carriers, or to impair the rights of employés, under other articles of these Statutes, but, in case of conflict, these articles shall prevail; and nothing in said articles shall affect the right of action under any law of this State.

Revisor's Note

V.A.C.S. Article 6443 refers to duties, liabilities, and rights under "other articles of these Statutes," meaning the Revised Statutes of 1925, in which Article 6443 is included. Therefore, the revised law substitutes "the Revised Statutes of 1925" for the quoted language.

Revised Law

Sec. 112.158. INJURY TO FELLOW SERVANT. (a) This section applies only to a corporation, receiver, or other person that controls or operates a railroad or street railway the line of which is located wholly or partly in this state.

(b) An entity described by Subsection (a) is liable for damages sustained by an employee of the entity while the employee is engaged in the work of operating the cars, locomotives, or trains of the entity as a result of the negligence of any other employee of the entity, regardless of whether the negligent employee and the employee who sustained the damages are considered fellow servants.

(c) Persons who are engaged in the common service of an entity described by Subsection (a) are considered fellow servants only if the persons are:

(1) employed in the same grade of employment;

(2) doing the same character of work or service; and

(3) working together at the same time and place and at the same piece of work for a common purpose.

(d) A person engaged in the service of an entity described by Subsection (a) is considered a vice principal of that entity if the person is entrusted by the entity with the authority of superintendence, control, or command of the other employees of the entity, with the authority to direct any other employee in the performance of any duty of the employee.

(e) A vice principal of an entity described by Subsection (a) is not considered a fellow servant with other employees of the entity.

(f) A contract between an employer and employee that limits the employer's liability under this section in the event of the death of or injury to the employee or setting damages that may be recovered under this section is not valid or binding.

(g) This section does not impair or diminish the defense of contributory negligence if the injury of the employee is proximately caused by the employee's own contributory negligence. (V.A.C.S. Arts. 6432, 6433, 6434, 6435, 6436.)

Source Law

Art. 6432. Every person, receiver, or corporation operating a railroad or street railway, the line of which shall be situated in whole or in part in this State, shall be liable for all damages sustained by any servant or employé thereof while engaged in the work of operating the cars, locomotives or trains of such person, receiver, or corporation, by reason of the negligence of any other servant or employé of such person, receiver or corporation, and the fact that such servants or employés were fellow-servants with each other shall not impair or destroy such liability.

Art. 6433. All persons engaged in the service of any person, receiver, or corporation controlling or operating a railroad or street railway, the line of which shall be situated in whole or in part in this State, who are intrusted by such person, receiver, or corporation with the authority of superintendence, control or command of the other servants or employés, of such person, receiver, or corporation, with the authority to direct any other employé in the performance of any duty of such employé, are vice-principals of such person, receiver, or corporation, and are not fellow-servants with their co-employés.

Art. 6434. All persons who are engaged in the common service of such person, receiver, or corporation controlling or operating a railroad or street railway, and who while so employed are in the same grade of employment and are doing the same character of work or service, and are working together at the same time and place, and at the same piece of work and to a common purpose, are fellow-servants with each other. Employés who do not come within the provisions of this article shall not be considered fellow-servants.

Art. 6435. No contract made between the employer and employé based upon the contingency of death or injury of the employé and limiting the liability of the employer under the preceding articles of this chapter, or fixing damages to be recovered, shall be valid or binding.

Art. 6436. Nothing in the preceding articles of this chapter shall be held to impair or diminish the defense of contributory negligence when the injury of the servant or employé is caused proximately by his own contributory negligence, except as otherwise provided in this chapter.

[Sections 112.159-112.200 reserved for expansion]

SUBCHAPTER E. STRUCTURES AND MATERIALS NEAR RAILROAD OR RAILWAY

Revised Law

Sec. 112.201. HEIGHT OF STRUCTURES OVER TRACKS. (a) In this section, "structure" includes a bridge, viaduct, overheadway, footbridge, or wire.

(b) The bottom of the lowest sill, girder, or crossbeam or the lowest downward projection of a structure built by the state, a county or municipality, or a railroad company or other corporation, firm, partnership, or individual over the tracks of a railway or railroad shall be placed at least 22 feet above the top of the rails of the tracks.

(c) A roof projection built from a loading platform along a railroad main track, siding track, spur, or switch shall be at least 22 feet above the rails of the track. (V.A.C.S. Arts. 6559a (part), 6559c (part).)

Source Law

Art. 6559a. All bridges, viaducts, overheadways, foot bridges, wires or other structures … built over the tracks of a railway, or over the tracks of railroads, by the State, or by a county, municipality, a railroad company or other corporation, firm, partnership, or natural person, shall be placed not less than twenty-two (22) feet in the clear from the top of the rails of such track or tracks to such structure or wire, or to the bottom of the lowest sill, girder or crossbeam, the lowest downward projection on the bridge, viaduct, overheadway, or footbridge or other structure.

Art. 6559c. All roof projections … constructed from any loading platform along any railroad main track, or spur, switch, or siding track shall be not less than twenty-two (22) feet above the rails of such track, and … .

Revisor's Note

V.A.C.S. Article 6559a refers to a "natural person." The revised law substitutes "individual" for "natural person" because the terms are synonymous and "individual" is more commonly used.

Revised Law

Sec. 112.202. DISTANCE OF STRUCTURES AND MATERIALS FROM TRACKS. (a) A loading platform, house, fence, or other structure built, and lumber, wood, or other material placed, along a railroad in this state, either on or near the right-of-way of a main line or on or near a spur, switch, or siding of the railroad, shall be built or placed so that the nearest edge of the platform, the wall of the building, or the material is at least 8-1/2 feet from the center of the main line, spur, switch, or siding.

(b) The edge of a roof projection from a loading platform along a railroad main track, siding track, spur, or switch shall be at least 8-1/2 feet horizontally from the center of the track. (V.A.C.S. Arts. 6559b (part), 6559c (part).)

Source Law

Art. 6559b. All loading platforms and all houses and structures, and all fences, and all lumber, wood and other materials … built, placed or stored along the railroads of this State, either on or near the right of way of the main lines, or on or near any spur, switch or siding of any such railroad, shall be so built, constructed, or placed that there shall be not less than eight and one-half (8-1/2) feet space from the center of such main line, spur, switch or siding to the nearest edge of the platform, or to the wall of the building, or to the lumber, wood, or other material.

Art. 6559c. All roof projections … constructed from any loading platform along any railroad main track, or spur, switch, or siding track shall be … the other edge of said roof projection shall be not less than eight and one-half (8-1/2) feet horizontally from the center of said track.

Revisor's Note

V.A.C.S. Article 6559b refers to materials "placed or stored" and to a structure "built, [or] constructed." The revised law omits the reference to "stored," because "stored" is included within the meaning of "placed," and omits the reference to "constructed" because "constructed" is included within the meaning of "built."

Revised Law

Sec. 112.203. EXCEPTION. Sections 112.201 and 112.202 do not apply to:

(1) a structure that had been built or was in the course of construction on June 18, 1925, or for the building of which material had been purchased on that date as provided by a prior contract or plan; or

(2) material that had been placed on June 18, 1925, or purchased for placing on that date as provided by a prior contract or plan. (V.A.C.S. Arts. 6559a (part), 6559b (part), 6559c (part), 6559d.)

Source Law

Art. 6559a. [All bridges, viaducts, overheadways, foot bridges, wires or other structures] hereafter [built] … .

Art. 6559b. [All loading platforms and all houses and structures, and all fences, and all lumber, wood and other materials] hereafter [built, placed or stored] … .

Art. 6559c. [All roof projections] hereafter [constructed] … .

Art. 6559d. The provisions of this Act shall not apply to nor prevent the building, placing, constructing or completing of structures or other things enumerated in Sections One, Two and Three, when same are being built, placed, or are in the courses of construction at the time this Act takes effect, or if material has been purchased for such placing, building, or construction at the time this Act takes effect, pursuant to prior contracts or plans.

Revisor's Note

(1) V.A.C.S. Articles 6559a, 6559b, and 6559c apply only to actions that occur "hereafter," meaning after the effective date of the articles. V.A.C.S. Article 6559d provides that those articles do not apply to actions occurring "at the time this Act takes effect." All of the articles were adopted by Chapter 11, General Laws, Acts of the 39th Legislature, Regular Session, 1925, and took effect 90 days after that legislature adjourned on March 19, 1925. Thus the articles took effect on June 18, 1925, and the revised law is drafted accordingly.

(2) V.A.C.S. Article 6559d refers to the "building" and "constructing" of structures. The revised law omits the reference to "constructing" because "constructing" is included within the meaning of "building."

Revised Law

Sec. 112.204. RULES. The department shall adopt rules in accordance with this subchapter. (V.A.C.S. Art. 6559f (part).)

Source Law

Art. 6559f. It is hereby made the duty of the Railroad Commission to promulgate rules and regulations in accordance with this Act… .

Revisor's Note

V.A.C.S. Article 6559f refers to "rules and regulations." The revised law omits the reference to "regulations" because under Section 311.005(5), Government Code (Code Construction Act), a rule is defined to include a regulation.

Revised Law

Sec. 112.205. WAIVER OF PROVISION. (a) On filing of an application and after notice to the attorney general, the department may, for good cause shown, issue an order permitting a railroad company or other corporation, firm, partnership, or individual or a county or municipality to deviate from a provision of this subchapter.

(b) An action in accordance with an order issued under this section is not considered to violate this subchapter. (V.A.C.S. Art. 6559f (part).)

Source Law

Art. 6559f. … It is further provided that upon application regularly made and filed, and after notice to the Attorney General, the Railroad Commission may, for good cause shown, permit any railway company or other corporation, firm, partnership, or person, or any county or municipality to deviate from the terms of this Act in accordance with an order of the Commission made and entered; and in such event the corporation, firm, partnership, or person acting in accordance with the order of the Railroad Commission so made shall not be deemed to have violated this Act.

Revisor's Note

(1) V.A.C.S. Article 6559f refers to an application "regularly made and filed." The revised law omits the reference to "made" because, in context, "made" is included within the meaning of "filed," and omits "regularly" because an application that is filed "irregularly" would not be consistent with law and therefore would not be considered filed.

(2) V.A.C.S. Article 6559f allows the Railroad Commission of Texas to grant a waiver from the terms of Chapter 11, General Laws, Acts of the 39th Legislature, Regular Session, 1925, which is codified as this subchapter, to "any railway company or other corporation, firm, partnership, or person." The revised law substitutes "a railroad company or other corporation, firm, partnership, or individual" for the quoted language for consistency with the language used in Section 112.201, which identifies the entities to which the prohibitions of this subchapter apply.

Revised Law

Sec. 112.206. CIVIL PENALTY. (a) The attorney general shall immediately bring an action against a railroad company or other corporation, firm, partnership, or individual who violates this subchapter to collect a civil penalty in an amount of not less than $100 or more than $1,000 for each violation. Each day that a violation continues is a separate violation.

(b) The attorney general may bring a single action for multiple violations by the same corporation, firm, partnership, or individual. (V.A.C.S. Art. 6559e.)

Source Law

Art. 6559e. If any railway company or other corporation, firm, partnership, or person shall hereafter erect any structure or wire in violation of any provision of this Act, or shall hereafter in any manner violate any provision of this Act, it shall be the duty of the Attorney General immediately to file a suit in court of competent jurisdiction, to collect a penalty, which is hereby prescribed of not less than one hundred ($100.00) dollars nor more than one thousand ($1,000.00) dollars for each violation of this Act; and the Attorney General may, in his discretion, sue in one proceeding for all violations of this Act by any one railway company or other corporation, firm, partnership or person. Provided further, that the said penalty shall accrue for each day such structure, wire, lumber, wood or other material is permitted to remain in violation of this Act, and each day same is permitted to remain, constitutes a separate violation of this Act.

Revisor's Note

(1) V.A.C.S. Article 6559e refers to a "railway company or other corporation, firm, partnership, or person" who violates a provision of Chapter 11, General Laws, Acts of the 39th Legislature, Regular Session, 1925, which is codified as this subchapter. The revised law substitutes "railroad company or other corporation, firm, partnership, or individual" for the quoted language for the reason stated in Revisor's Note (2) to Section 112.205 of this code.

(2) V.A.C.S. Article 6559e requires the attorney general to sue certain entities if an entity "shall … erect any structure or wire in violation of any provision of this Act, or shall … in any manner violate any provision of this Act." The revised law omits "shall … erect any structure or wire in violation of any provision of this Act," because the specific violations described by that language are included within the meaning of "shall … in any manner violate any provision of this Act."

(3) V.A.C.S. Article 6559e refers to suit in a "court of competent jurisdiction." The revised law omits the quoted language as unnecessary because a suit may be filed only in a court and the general laws of civil jurisdiction determine which courts have jurisdiction over the matter. For example, see Sections 24.007-24.011, Government Code, for the general jurisdiction of district courts.

(4) V.A.C.S. Article 6559e provides that "said penalty shall accrue for each day such structure, wire, lumber, wood or other material is permitted to remain in violation of this Act, and each day same is permitted to remain, constitutes a separate violation of this Act." The revised law substitutes "[e]ach day that a violation continues is a separate violation" for the quoted language to avoid unnecessary repetition of the substance of the violation.

CHAPTER 113. ENGINEER'S OPERATOR PERMIT AND TRAIN OPERATOR PERMIT

Sec. 113.001. ISSUANCE OF PERMIT ......................... 60

Sec. 113.002. PERMIT REQUIRED ............................ 61

Sec. 113.003. FORM OF PERMIT ............................. 61

Sec. 113.004. PROOF OF IDENTIFICATION .................... 62

Sec. 113.005. RECORD OF ACCIDENT OR VIOLATION ............ 63

CHAPTER 113. ENGINEER'S OPERATOR PERMIT AND TRAIN OPERATOR PERMIT

Revised Law

Sec. 113.001. ISSUANCE OF PERMIT. (a) A railroad company shall issue an engineer's operator permit to each person whom the company employs to operate or permits to operate a railroad locomotive in this state.

(b) A railroad company shall issue a train operator permit to each person:

(1) whom the company employs to operate or permits to operate a train in this state; and

(2) who has not been issued an engineer's operator permit. (V.A.C.S. Art. 6419a, Secs. 1(a) (part), (b) (part).)

Source Law

Art. 6419a

Sec. 1. (a) A railroad company shall issue to each person that it employs to operate or permits to operate a railroad locomotive in this state an engineer's operator permit… .

(b) A railroad company shall issue to each person that it employs to operate or permits to operate a train in this state, other than a person issued a permit under Subsection (a) of this section, a trainman's permit… .

Revisor's Note

Section 1(b), V.A.C.S. Article 6419a, refers to a "trainman's permit." Throughout this chapter the revised law substitutes "train operator permit" for "trainman's permit" to more accurately express the nature of the permit and to avoid use of a gender-based term.

Revised Law

Sec. 113.002. PERMIT REQUIRED. (a) A person operating a railroad locomotive in this state shall have in the person's immediate possession an engineer's operator permit issued under this chapter.

(b) A person operating a train in this state, other than a person issued a permit under Section 113.001(a), shall have in the person's immediate possession a train operator permit issued under this chapter. (V.A.C.S. Art. 6419a, Sec. 2.)

Source Law

Sec. 2. (a) A person operating a railroad locomotive in this state shall have in his or her immediate possession an engineer's operator permit issued under this Act.

(b) A person operating a train in this state, other than a person issued a permit under Section 1(a) of this Act, shall have in his or her immediate possession a trainman's permit issued under this Act.

Revisor's Note

Section 2(b), V.A.C.S. Article 6419a, refers to a "permit under Section 1(a) of this Act." Section 1(a) is revised in pertinent part as Section 113.001(a) of this code and provides for issuance of an engineer's operator permit. The revised law is drafted accordingly.

Revised Law

Sec. 113.003. FORM OF PERMIT. A permit issued under this chapter must include the permit holder's name, address, physical description, photograph, and date of birth. (V.A.C.S. Art. 6419a, Secs. 1(a) (part), (b) (part).)

Source Law

(a) … A permit must include the engineer's name, address, physical description, photograph, and date of birth.

(b) … A permit must include the trainman's name, address, physical description, photograph, and date of birth.

Revised Law

Sec. 113.004. PROOF OF IDENTIFICATION. If a peace officer requires a person to show proof of identification in connection with the person's operation of a railroad locomotive or train, the person:

(1) shall display the person's permit issued under this chapter; and

(2) may not be required to display a driver's license issued under Chapter 521 or commercial driver's license issued under Chapter 522. (V.A.C.S. Art. 6419a, Sec. 3.)

Source Law

Sec. 3. A person who operates a railroad locomotive or train and who is required by a peace officer to show proof of identification in connection with the person's operation of a locomotive or train shall display the person's permit issued under this Act and may not be required to display an operator's, commercial operator's, or chauffeur's driver's license issued under Chapter 173, Acts of the 47th Legislature, Regular Session, 1941, as amended (Article 6687b, Vernon's Texas Civil Statutes).

Revisor's Note

Section 3, V.A.C.S. Article 6419a, refers to "an operator's, commercial operator's, or chauffeur's driver's license issued under Chapter 173, Acts of the 47th Legislature, Regular Session, 1941, as amended (Article 6687b, Vernon's Texas Civil Statutes)." In 1983, Article 6687b was amended to abolish operator, commercial operator, and chauffeur's licenses and to provide for the issuance of driver's licenses, including Class A and Class B driver's licenses, which were required to operate certain commercial motor vehicles. In 1989, the legislature adopted Article 6687b-2, Revised Statutes, to provide for the issuance of commercial driver's licenses. Chapter 165, Acts of the 74th Legislature, Regular Session, 1995, codified Articles 6687b and 6687b-2 as Chapters 521 and 522, Transportation Code, respectively. Throughout this chapter, the revised law is drafted accordingly.

Revised Law

Sec. 113.005. RECORD OF ACCIDENT OR VIOLATION. If a person operating a railroad locomotive or train is involved in an accident with another train or a motor vehicle or is arrested for violation of a law relating to the person's operation of a railroad locomotive or train:

(1) the number of or other identifying information on the person's driver's license or commercial driver's license may not be included in any report of the accident or violation; and

(2) the person's involvement in the accident or violation may not be recorded in the person's individual driving record maintained by the Department of Public Safety. (V.A.C.S. Art. 6419a, Sec. 4.)

Source Law

Sec. 4. If a person operating a railroad locomotive or train is involved in an accident with another train or a motor vehicle or is arrested for violation of a law relating to the person's operation of a locomotive or train, the number or other identifying information about the person's operator's, commercial operator's, or chauffeur's driver's license may not be included in any report of the accident or violation, and the person's involvement in the accident or violation may not be recorded in the person's individual driving record maintained by the Department of Public Safety.

Revisor's Note

(End of Chapter)

V.A.C.S. Article 6419a was enacted into law by the legislature but was not added to or made a part of Title 112, Revised Statutes, by legislative action. Definitions, penalties, and other references that are derived from V.A.C.S. Title 112 and that are generally applicable to "this subtitle" or "this chapter" should be examined carefully to determine whether they applied specifically to Article 6492a and, therefore, to Chapter 113.


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