Untitled Texas Attorney General Opinion

Honorable Ben Atwell Chairman Interim State and Local Tax Committee, and House Standing Revenue and Taxation Committee 1002 Dallas Federal Savings Bldg. Dallas, Texas Opinion No. C-783 Re: Whether an increase in the motor fuel tax may be used to remove billboards and junkyards from land adjacent to certain highways or to screen from view said junkyards. Dear Mr. Atwell: You ask our opinion as to 11 whether or not a one cent increase in the'gasoline tax (i.e..,the'3/b allotted to highways under tne Constitution) could be used to comply with the terms of the Federal Highway Beautification Act of 1965.” Our opinion is that no portion of the tax now imposed on gasoline by the present provisions of Chapter 9 of Title 122-A, Taxation-General, Vernon's Civil Statutes, or any increase of that tax, may be used to comply with any of the provisions of the Federal Highway Beautificat~ionAct of 1965 which provide for either, 1) the removal of signs, displays and devices from land adjoining certain highways and -3754- Honorable Ben Atwell, Page 2 (c-783) which land is outside of the right-of-way of said highways, or 2) the screening from view from said highways of outdoor junkyards situated on land out- side of the right-of-way of said highways by screening done on land outside of said right-of-way, or the removal of such junk- yards situated on land outside of the right- of-way of said highways. The Federal Highway Beautification Act of 1965 was approv,ed October 22, 1965. It is Public Law 89-285, 79 Stat. 1028, and is comprehended within Title 23, U.S.C.A., Highways. Among other provisions, it provides that Federal- aid highway funds apportioned on or after January 1, 1968, to any State which the Secretary determines has not made provision for effective control of: ~1) ll. . . the erection and maintenance along the Interstate System and the primary system of outdoor advertising signs, displays, and devices which are within six hundred and sixty feet of the nearest edge of the right- of-way and visible from the main traveled way of the system, . . ." and, 2) ‘I. . . the establishment and maintenance along the Interstate System and the primary system of outdoor junkyards, which are with- in one thousand feet of the nearest edge of the right-of-way and visible from the main traveled way of the system, . . .' shall be reduced by 10 per centum of the amounts which such States would otherwise have received from the Federal govern- ment under Section 104 of said Title 23. Sections 131b and 136b, Title 23. The term "effective control" relative to outdoor signs, displays and devices means the removal of all of them within the prescribed distance, except those which conform to the standards promulgated by the Secretary; this term as related to outdoor junkyards means the removal or screening from view -3755- . . . I. Honorable Ben Atwell, Page 3 (C-783) from the highway of those out of doors within the prescribed distance. The Secretary is the Secretary of Commerce. 23 U.S.C.A. Sec. 101(a). The purposes for which the revenues from the-Texas motor fuel (gasoline) tax now imposed by Chapter 9 of Title 122-A, J Taxation-General, Vernon's Civil Statutes, may be used, together with the allocation of such revenues, are stated in Article VIII, Section 7-a of our state Constitution which reads as follows: "Subject to legislative appropriation, allocation and direction, all net revenues re- maining after payment of all refunds allowed by law and expenses of collection derived from motor vehicle registration fees, and all taxes, except gross production and ad valorem taxes, on motor fuels and lubricants used to propel motor vehicles over public roadways, shall be used for the sole purpose of acquiring rights- of-way, constructing,maintaining, and policing, such public roadways, and for the administra- tion of such laws as may be prescribed by the ‘Legislaturepertaining to the supervision of traffic and safety on such roads; and for trie payment of the principal and interest on county and road district bonds or warrants voted or issued prior to January 2, 1939 and declared eligible prior to January 2, 1945, for payment out of the County and Road District Highway Fund under existin law; provided, however, that one-fourth (t ) of such net rev- enue from the motor fuel tax shall be allocated to the Available School Fund; and, provided, however, that the net revenue derived by counties from motor vehicle registration fees shall never be less than the maximum amounts allowed to be retained by each County and the percentage allowed to be retained by each County under the laws in effect on January 1, 1945. Nothing contained herein shall be con- strued as authorizing the pledging of the State's credit for any purpose." (Emphasis added) We do not find a statutory definition of a highway right-of-way, but such right is generally held to be the mere right to pass over the land of another. Right-of-Way -3756- Honorable Ben Atwell, Page 4 (c-783) City Oil, Gas & Mfg. Co., 106 Tex. 94, (1913) * B 0Iton v. Byck 611 Co., 114 S.W. Civ. A;p. 1936 dlsm.); Words and Phrases, Permanent Edition, "Rigi&%%ay", Vol. 37A, p. 410 et seq. A highway roadway is defined in Article 67old Section 13(c), Vernon's Civil Statutes, as follows: way i~~~~ve~~a~~~~,ne;r;ha~rp~~~~~~r~~yau~:~h70r vehicular travel. In Che event a highway in- cludes two (2) or more separate roadways the term 'roadway' as used herein shall refer to any such roadway separately but not to all such roadways collectively." This seems to be the generally accepted definition. Words and Phrases, Permanent Edition, "Roadway", Vol. 37A, pp. 525-528. In State v. City of Austin, 160 Tex. 348, 331 S.W. 2d 737, 741 (1960) the Court reiterated the holding of prior decisions whirein it held that, I,, . . the main purposes of roads and streets are for travel and transportation. . . ." Pursuant to Article VIII, Section 7-a of our Consti- tution that portion of the net revenue allocated for high- way purposes which might be applied in any conceivable manner to the Federal Highway Beautification Program, may be used only for, (1) acquiring rights-of-way, (2) constructing, maintaining, and policing such public roadways, and (3) administration of such laws as may be prescribed by the Legislature pertaining to the supervision of traffic and safety on such roads. This Section of our Constitution was adopted in 1946. This was just after the end of World War II, when our nation was still in the throes of recovery from that war. -3757- Honorable Ben Atwell, Page 5 (C-783) We do not believe that the people of this State who adopted this provision at that time contemplated that the revenue derived from the motor vehicle registration fees and taxes on motor fuel and lubricants be used in the beautification of land adjoining the highways. The applicable rule of constitutional construction Is stated in River Oaks Garden Club v. City of Houston, 370 S.W.2d 851, 854, (Tex. Sup. 'Lgb3) as follows: "The fundamental rule for the government of courts in the interpretation or construc- tion of a Constitution is to give effect to the intent of the people who adopted it." We do not perceive how any of the above authorized classes of expenditures authorized by our Constitution can be construed to include either the removal of signs, displays, and devices or junkyards from lands adjacent to our State highways and which are outside of the high- way rights-of-way and which comprise no portion of our State highway system, or how such classes of expenditures can be construed to authorize the screening from view from said highways of outdoor junkyards situated on land out- side of the right-of-way of said highways by screening done on land outside of the right-of-way. Opinion C-595 (1965) of the present Attorney General made certain holdings relating to the authority of the State Highway Department to purchase interests in strips of land necessary for the restoration, preservation and enhancement of the scenic beauty adjacent to Federal-aid highways in Texas. That opinion does not consider, in any aspect, the source of the monies available for such acquisitions, which is the subject of this present opinion. SUMMARY The provisions of Article VIII, Section 7-a of our State Constitution prohibit the'use of any of the net revenues allocable thereunder to highway usage to either, 1) the removal of signs, displays and devices from land adjoining certain highways and which land is outside of the right-of-way of said highways, or -3758- Honorable Ben Atwell, Page 6 (c-783) 2) the screening from view from said highways of outdoor junk- yards situated on land outside of the right-of-way of said highways by ,screeningdone on land outside of said right- of-way, or the removal of such junkyards situated on land outside of the right-of- way of said highways. Yours very truly, WAGGONER CARR Attorney General By: WEA/fb APPROVED: OPIRION COMMITTEE W.z.s[Eert, Chairman James McCoy W. 0. Shults Marietta Payne William Colburn Carroll Graham APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright -3759-