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829 i
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Glenn CapEa
Oounty Attorney
sb3on county
Mason, Texas
Dear Sisr
the Stats
you"r*fer W88 pror5ul-
gate& by the S on; evidently under a
supposed &rant o ed in Seation~ 8 0r drt-
Code or Texas, a8 amend-
506, Aota or 1941, 47th
perttaent parts 0r wh&h
Rate ma Speed 0r vehiom3.
unlawful. ror any person to oper-
otor or other vehlele upon the
Texas at a rote or speed in ex-
(60) milea an hour aur%ng the day-
time, or to drive ox operate a motor or other
vehiole at a rate of speed in exoess of fifty-rive’
Honorable Glenn Cams, Page 2
(551 miles per hour during the nighttke, or drive
or operate n motor
. _ .m. - or other
- vehicle within the
corporate iiats or an incorporated oity or town,
or within or through any town or village not in-
oor rated, at a greater rate of speed than thirty
(3Cfoniles par hour; provided, that it &al.1 bo
unlawful to drive or operuto upon said public high-
ways a oonmerolal motor vehicle, truck-traotor,
trailer, or semitrailer as defined in this Aot
at a rate or speed in exoess or forty-rive (451
sidles per hour during the nighttime. Trovided
further, that it shall be unlawful to operate any
motor vehiole engaged in this State in the busi-
ness 0r transporting paosengers for oompensation
or hire on any highway, road, or thoroughrare not
privately owned between cities, towns, and villages
at a rate of speed in exoeas of dirty-five (55)'
mlles'per hour.
uWaytims aa used In thie hot shall mean a . ..'
hali hourbe~fore sunrise to a half'hour after sun-
set, and nighttime shall man at any other hour.
"'Provided further that no person shall drive
a vehiole on a highway at a speed Greater than is
reasonable and prudent under ths oonditions then
existing, having regard to the aatual ana potential
hazards when approaching and crossing an lnterseo-
tion or a railway grade orossing, when approaching
and soing around a ourve, when approaohing a hill
orest, when traveling upon any narrow or winding
roadway, or when speoial hazard exists with respeot
to pedestrians or other trafflo or by reason of
weather or highway oonditions;.and speed shall be
so oontrollsd as szy be necessary to avoid collid-
ing with any person, vehlole, or other oonveyanoe
on or enteri,ng the highway in oomplianoe with legal
requirements and the duty of all persons to use
auf3 oare.
*'The State Blghway Conmission shall have the
power and authority upon the basis of an englneer-
ing and traffia investigation to detsruine and fix
the maximum, reasonable and prudent speed at any
road or highway interscotions, railway Grade oross-
ings, ourvea, hills, or upon any other part of a
Xonorable Glenn Cappa, Page 3
h&way leas than the maximum hereinbefore rired
by thls’Aot, taking ‘into oonslderation the width
and condition of the pavement and other oiroum-
atanoes on suoh portion of said highway as well
as the usual traffio thereon. That whenever the
State Highway Commission shall determine and rlr
the rate of epeed at any said point u~ponany high-
way at a less rate of speed than the maximumhereln-
berore set forth in this Aot and shall deolare the
~maxlmum,reasonable and prudent speed limit thereat
by proper order or the Comuisslon entered on its
mlnutea, suah rate of speed shall become effective
and operative at aald point on said highways when
appropriate signs .&loin& notloe thereof are ereated
.I ‘,
under the order of the Commission at suoh inter-
seotion or portion of the hi&way.
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The order of ‘the State fllghway Commlselon,flxing
_
the general ‘35 mile per, hour speed Uaft, was pawesed Septen+
ber 22, 1942, imd is as Zollower
*An engineer& Lana traffia lnvestlgation and
survey of the Texas Highway System having been made,
the a0dsd0n finds that malntenanoe equipment,
materials and supplies neoessary to maintain and
prolong the life of the system in Its present con-
dition are beooming increasingly difficult to ob-
tain because of priorities and other resfrlotions
of the Federal GOVernmenti that most of the high-
ways oomprlsing the system are vital to the national
delense and should be preserved In the best possible
menner for auah use; that a reduction of the maxi-
mum speed or motor vehiolee using suoh highways will
dearease the wear and tear upon road surfaoes and
at the same time per&t the safe operation of ve-
hieles with worn tires whlah oannot be raplaaed.
“It 1s therefore ordered by the Coamtission upon
the basis of such engineering, and .traffio investiga-
tlon and survey, the t the maximum reasonable and
prudent speed of motor vehiales on all highways aom-
prising the State highway System, outside the limits
of inoorporated cities and towns, be reduoed to a
.
HOnWable Glenll CappSi Page 4
speed not In exoess of 35 miles per hour, and the
State Highway ,%gIneer Is auth0ri20a and ~direated .
to prooeed with the emotion of appropriate sims
showing the uaxInua reasonable and prudent speed
on all highways oon~IsIn(~ the State Ei.#way E.ystm,
outside the limits of Inoorporated oities and towns,
as not eroeeding 35 miles per hour.”
From a careful reading of the above statutory pro-
vision granting the l&&may ComissIon thb authority to de-
termine what me mtimum reasonable and prudeut speeds upon
oertaln seotious and pointa of the Terns highways, we are-In+
pressed with the belief that the wording of the statute Itself
does not shoe an Intention to g.ive the Ilighway Comission eu-
thority to establish a hew speed 1Fmit of general anulicetion
on all the nany thousands of miles of State iii&ways, but
rather Inhioates a ooatrary intent. The obvious In~tent of
the grant Is to empower the Com.mIssIOn to do what the Legis-
lature Itself could not praotioably do: to Ceternine md fix
mrixInumsafe speed limits (below the general~maxfaun limits)
at partioular “road ,or highway Intersections, reilway grade
orossi~s, curves, hIl1f.P or upon my other pertioular seo-
tion of highway whioh, because of predeteminod ‘looal--not
general--oondltIons, might present e.xtraordInary hazards to
twf fro saf sty.
But the quoted order of the Commission goes beyond
the authority granted,,~ and in effeot, attempts to repeal a
general penal IJ%Wpassed by the Legislature, md substitute
in Its plaoe en order passed by an admInIstretIve board. .
While we reaognize the patriotio notioes whioh im-
pellod Its paseage yet It Is our opinion that ~said order of
the State Highway 6ommIssIon, fixing the mexinua speed limit
oh all highways oonprisInS the State Highway system at 35
miles per hour, is in exoess of the ComiesIonrs authority
and therefore imtilid. The Legislature la now In sooaion and
om nake suoh changes as It deems desirable.
ale express no opinion oonoerning the oonatitution-
alitg of the delegation of authority oontained In saIia Seotion
6, nor Is this opinion to be oonstrued 3s passfnf, upon the
legality of other orders of the State EIghwey Co~~5.ssIon fir-
Honorable Glenn Capps, Page 5 .
ing the maximum speed 13.1&tupon pertIouXar motions OS the
State Ri~hways at 35 miles per hour.
Yours very truly
ATTO~GEEVSI1ALOF TEXAS
ATTOXWEY
G- C'S TEbi
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