THE AITORNEY GENERAL
OFTEXAS
April 11, 1962
Hon. D. C. Greer Opinion NO. ~-1306
State Highway Engineer
Texas Hi hway Department Re : Whether the Highway De-
Austin 1f+, Texas partment has the authority
to purchase, erect and
maintain certain highway
markers pursuant to High-
way Commission Minute
Order No. 50806, and
DearMr. Greer: related question.
You have asked this office to render an opinion as
to whether or not the Highway Department has the authority to
purchase, erect and maintain certain hi hwa markers pursll,ant
to Highway Commission Minute Order NO. 508otk You have fur-
ther asked whether or not Section 79 of Article VIII, Texas
Constitution, would present any bar to utilizing Highway Fund
moneys in carrying out the proposed program.
Relevant portions of Highway Commission Minute
Order No. 50806 are set forth below:
"WHEREAS, signs marking points of interest
and potential destination are an integral and
necessary part of a modern highway; and
4,. . .
"WHEREAS, our system of roadside parks and
turnouts have proven to be a factor in the reduc-
tion of accidents by providing a safe place for
drivers to park, relax, stretch and otherwise
avoid the effects of driver fatigue; and
"WHEREAS, the erection of the aforementioned
markers In roadside parks and turnouts would
discourage stopping on the shoulders of the high-
ways near such points and would encourage more
drivers to -ton and relax in such ~8rks anA
turnouts thereby furthering the cause of safety
on our highways;
Hon. D. C. Greer, page 2 (WW-1306)
"NOW, THEREFORE, BE IT ORDERED that the
State Highway Commission hereby finds and deter-
mines that such markers should be erected, that
when such markers are erected they will cons-
titute an integral part of the highway system
which is necessary to provide adequate and
satisfactory service to a great portion of
the traveling public and that they will
contribute toward safer use of the highways.
. . .
From the foregoing it can be seen that the Texas
Highway Commission has made an administrative finding of
record, to the effect that the highway markers here under
discussion will constitute an integral part of the highway
and that they will contribute toward safer use of
%z%!ghways.
Article 6674d, Vernon's Civil Statutes, states in
part:
"Ali further improvement of said State
Highway System with Federal aid shall be made
under the exclusive and direct control of the
State Highway Department and with appropriations
made by the Legislature out of the State Highway
Fund. . . .'
Article 6674a defines "improvement" as including
"construction, reconstruction or maintenance, or partial con-
struction, reconstruction or maintenance and the making of
all necessary plans and surveys preliminary thereto."
By entry of the Minute Order, the Texas Highway
Commission expressed its view that the contemplated marker
program was an "improvement" to the highway system of the
State of Texas, and that the markers would become an integral
part of the system, contributing materially to the safety of
drivers using the highways of Texas. We may not dispute that
finding. The reason is amply stated by Chief Justice
McClendon of the Austin Court of Civil Ap eals in Johnson
v. Fernuson, 55 S.W. 26 153 (Civ.App. 1932P :
.
Hon. D. C.,Greer, page 3 (~~-1306)
"In matters of judgment touching the
Highway Commiss1onez.s'Sunctions, theirs,
and not ~thatof another, is supreme. Cer-
tainly their acts other than those of a
purely ministerial nature should not be
stayed at the hands of the courts, and the
Important functions of the department thereby
impeded or impaired, except upon verified
allegations of fact showing unequivocally
that they are exceeding the bounds of their
legal authority: Their acts in the exercise
of an honest discretion must be respected
when untainted by fraud . . .or such abuse
of discretion as under the authorities
would avoid the same.('
The General Appropriation Act of the 57th Legislature,
under the heading HIGHWAY DEPARTMENT, provides, in Item
13:
'For all other operating expenses involved
in establishing, planning, constructing, and
maintainlng a system of State Highways as con-
templated and set forth in Chapter I1 Title 116,
Revised Civil Statutes of 1925 . . .
It is thus clear that the Legislature, In making an appro-
priation for the Highway Department, has not attempted to
spell out the precise purposes for which the moneys may be
used. This function is left for the Highway Commission.
And if the Highway Commission, in its discretion, determines
that a particular type of highway marker is a proper lm-
provement to the highway system of Texas, that determination
must stand, barring a proper appeal to the courts.
There is, of course, one other ground upon which
the proposed expenditure may be challenged, and that is un-
constitutionality. Article VIII, Section 7a, of the Texas
Constitution, contains the following provisions:
"Subject to legislative appropriation, al-
location and direction, all net revenues remaining
after payment of all refunds allowed by law and
expenses of collection derived from motor vehicle
registration fees, and all taxes. except gross
Hon. D. C. Greer, page 4 (~~-1306)
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, main-
taining and policing such public roadways, and
for the administration of such laws as may be
prescribed by the Legislature pertaining to the
supervision of traffic, and safety on such roads."
No other Constitutional provision appears to bear upon the
particular type of expenditure here under examination.
As has already been mentioned, in Minute Order
No. 50806 the State Highway Commission found that such
markers will constitute an integral part of the highway
system which is necessary to provide adequate and satis-
factory service. It is the opinion of this office that
the word "integral" as used in the finding, operates to
bring the proposed expenditure within the provisions of
Section 7a of Article VIII, Texas Constitution. The ra-
tionale of Johnson v. Ferguson, supra, would control,
regarding the force of an administrative finding by the
Highway Commissioners. Neither Section 7a of Article
VIII, nor any other provision of the Texas Constitution
prohibits carrying out the proposed program with money in
the Highway Fund.
SUMMARY
Under the findings contain"4 in Minute
Order No. 508~6 of the State Highway
Commission, the Commission has author-
ity to purchase, erect and maintain
certain highway markers as integral
parts of the highway system of the State
of Texas, out of the general approprl-
ation for the State Highway Department
Neither Section 7a of Article VIII; nor
any other provision of the Texas Cons-
Hen. D. C. Greer, page 5 (~~-1306)
titution, would prohibit the Highway
Department from carrying out the pro-
posed program with money In the High-
way Fund.
Very truly yours,
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
:XVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.