Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 7, 2018

The Honorable Joseph C. Pickett Opinion No. KP-0197
Chair, Committee on Environmental Regulation
Texas House of Representatives Re: Whether Proposition 1 and Proposit~on
Post Office Box 2910 7 funds may be used.on toll projects ·
Austin, Texas 78768-2910 (RQ-0192-KP)

Dear Representative Pickett:

You request an opinion regarding whether the Texas Transportation Commission
("Commission") may us~ Proposition 1 and Proposition 7 funds on toll projects. 1

Proposition 1 refers to a constitutional amendment proposed by the Legislatute in 2013 and
approved by the voters in 2014. 2 That constitutional amendment revised article III, section 49-g
of the Texas Constitution to require the Comptroller to transfer to the state highway fund revenue
received from oil production taxes above a certain amount. · See TEX. CONST. art. III, § 49-g( c).
Relevant to your request, that section provides: "Revenue transferred to the state highway fund
under this subsection may be used only for constructing, maintaining, and acquiring rights-of-way
for public roadways other than toll roads." Id. (emphasis added).

Proposition 7 similarly refers to a constitutional amendment proposed by the Legislatur~
and approved by the voters in 2015. 3 That constitutional amendment adopted article VIII, section
7-c of the Texas Constitution, which requires the Comptroller to transfer to the state highway fund
up to $2.5 billion in general sales tax proceeds in excess of $28 billion. Id. art. VIII, § 7-c(a). It
also requires the Comptroller to transfer to the state highway fund thirty-five percent of the net
revenue above $5 billion derived from the tax imposed on the sale, use, or rental of a motor .vehicle.
Id. art. VIII, § 7-c(b). That section restricts the use of the money transferred:

Money deposited to the credit of the state highway fund under this
section may be appropriated only to:

1
See Letter from Honorable Joseph C. Pickett, Chair, House Comm. on Envtl. Regulation, to Honorable Ken
Paxton, Tex. Att'y Gen. at 1 (Nov. 9, 2017), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter").
2
See Tex. S.J. Res. 1, 83d Leg., 3d C.S., 2013 Tex. Gen. Laws 5049, 5049-50.

3
See Tex. S.J. Res. 5, 84th Leg., R.S., 2015 Tex. Gen. Laws 5414, 5415-16 ..
The Honorable Joseph C. Pickett - Page 2 (KP-0197)

(1) construct, maintain, or acquire rights-of-way for public
roadways other than toll roads; or

(2) repay the principal of and interest on general obligation bonds
issued as authorized by Section 49-p, Article III, of this
constitution.

Id. art. VIII, § 7-c(c) (emphasis added).

Thus, in proposing each of these constitutional amendments, the Legislature plainly
expressed its intent that the Commission not use the money transferred to the state highway fund
under Proposition 1 or Proposition 7 on toll roads. Id. art. III, § 49-g(c); id. art. VIII, § 7-c(c).
Furthermore, the language approved by the voters at each election acknowledged that any funds
transferred pursuant to Propositions 1 and 7 would not be used on "toll roads." 4

Addressing your question requires a construction of the term "toll roads." Texas courts r
construe constitutional provisions in the same manner as they construe statutes. Harris Cty. Hosp.
Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). The guiding rule is to discern
and give effect to the intent of the provision's drafters. Id. Courts rely heavily on the literal text
of a constitutional provision to give effect to its plain language. Id.; Doody v. Ameriquest Mortg.
Co., 49 S.W.3d 342, 344 (Tex. 2001).

The relevant constitutional provisions do not define "toll road," nor has the Legislature
defined the term for purposes of the Transportation Code. If the plain language of a constitutional
provision is clear and unambiguous, courts give the language of the provision its common
everyday meaning. City of Rockwall v. Hughe_s, 246 S.W.3d 621, 625-26 (Tex. 2008); State v.
Shumake, 199 S.W.3d 279,284 (Tex. 2006). The common understanding of the term "toll road"
is "a road for the use of which a toll is collected." WEBSTER'S THIRD NEW INT'L DICTIONARY
2405 (2002). Thus, the Commission may not spend state highway funds received under
Propositions 1 and 7 to fund any road for the use of which a toll is collected. Construing the term
"toll road" becomes more complicated, however, due to the realities of toll roads today.

4
The language approved by the voters through Proposition I stated:
The constitutional amendment providing for the use and dedication of certain
money transferred to the state highway fund to assist in the completion of
transportation construction, maintenance, and rehabilitation projects, not to
include toll roads.

Tex. S.J. Res. I, 83d Leg., 3d C.S., 2013 Tex. Gen. Laws 5049, 5050 (emphasis added). The language approved by
the voters through Proposition 7 stated:
The constitutional amendment dedicating certain sales and use tax revenue and
motor vehicle sales, use, and rental tax revenue to the state highway fund to
provide funding for nontolled roads and the reduction of certain transportation-
related debt.

Tex. S.J. Res. 5, 84th Leg., R.S., 2015 Tex. Gen. Laws 5414, 5416 (emphasis added).
The Honorable Joseph C. Pickett---:- Page 3 (KP-0197)

Throughout Texas, many roads are tolled for portions of their route but not their entirety. In
addition, some lanes of a road may be tolled while others are not. The constitutional provisions
restricting the use of funds do not directly address whether the Commission may use the funds on
roads that have both tolled and non-tolled components. Further, we find no caselaw interpreting
the term "toll road," nor do Texas statutes define the term. The common definition of "toll road"
fails to clarify whether a toll road includes a non-tolled portion or lane of a road that also contains
tolls. Accordingly, we cannot determine whether a court would construe Propositions 1 and 7 to
allow those monies to be used for "toll projects" when those provisions refer to "toll roads."

Unquestionably, the Commission may not withdraw Proposition 1 and Proposition 7 funds
from the state highway fund and place them into a general fund for a partially tolled project with
no mechanism for ensuring that it spends the funds as constitutionally required, that is, only on
non-tolled roads. 5 In your request, you explain that the Commission has "projects that have both
tolled and non-tolled components," and you indicate it is "using Prop 1 and Prop 7 monies along
with other funding" to fund these projects. Request Letter at 1. After you submitted your request,
however, the Commission reversed course and voted to remove the tolled components from several
of its long-term construction projects. 6 Until the Legislature and the voters have an opportunity to
clarify their intent regarding the appropriate use of Proposition 1 and Proposition 7 funds, the
Commission has chosen to delay using the funds on projects with tolled components.

5
There is an indication that the Commission, at least with regard to one project, can provide "separate tracking
for all the non-tolled elements," and that it is "able to account for that separately and demonstrate to the public that[it
is] not using any of the Prop 1 or 7 ... money for a toll project." See Brief from C. Brian Cassidy, Locke Lord, LLP,
Counsel to Cent. Tex. Reg'I Mobility Auth. at 5 (Dec. 12, 2017) (on file with the Op. Comm.) (quoting Tex. Transp.
Comm'n Meeting (Oct. 26, 2017) (statement of J. Bruce Bugg, Jr., Chairman, Tex. Transp. Comm'n)). Whether the
Commission possesses the ability to track funds accordingly, and whether the Commission does so, are fact questions
beyond the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0046 (2015) at 4 (noting that
whether funds are spent in accordance with what the voters approved involves questions of fact that cannot be
answered in the opinion process).
6
SeeTex. Transp. Comm'n Meeting (Nov. 16, 2017) (statement of J. Bruce Bugg, Jr., Chairman, Tex. Transp.
Comm'n).
The Honorable Joseph C. Pickett - Page 4 (KP-0197)

SUMMARY

The Texas Transportation Commission may not spend state
highway funds received pursuant to Propositions 1 and 7 to fund any
toll road. Furthermore, the Commission may not withdraw
Proposition 1 and Proposition 7 funds from the state highway fund
and place them into a general fund for a partially tolled project with
no mechanism for ensuring that it spends the funds as
constitutionally required. The absence of a definition of "toll road"
in the constitutional provisions, statutes, or caselaw leaves us unable
to determine whether the Commission may use Proposition 1 and
Proposition 7 monies on non-tolled portions of toll projects.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee