February 13, 1975
The Honorable B. L. DeBerry Opinion No. H- 525
State Highway Engineer
Texas Highway Department Re: Authority of State High-
11th & Brazes way Department to make ex-
Austin, Texas 78701 penditures requested to
qualify for projects under
23 U.S. C. sec. 405.
Dear Mr. DeBerry:
You have requested our opinion as to whether the Highway
Department can expend State highway funds pursuant to article 6674d-1,
V. T. C. S., in order to qualify for and secure federal funds pursuant to
23 U.S. C. sec. 405. You advise that the roadways to be covered are
basically city streets and county roads which are not part of the state
highway system of Texas.
The peeltinent provisions of 23 U.S. C. sec. 405, are as follows:
(a) The Federal-aid safer roads demonstration
program shall consist of all public roads or segments
thereof not on a Federal-aid system needing improve-
ments to correct safety hazards selected or designated
by each State subject to the approval of the Secretary.
(b) . . . including projects to improve highway
marking and signing, to eliminate roadside obstacles,
to eliminate hazards at railroad-highway grade crossings
and to correct high-hazard locations, identified by
accident reporting, traffic records and hazards analysis
systems . . . .
. . . .
p. 2368
The Honorable B. L. DeBerry page 2 (H-525)
(d) For the purposes of this section, the term
“public road” means any road under the jurisdiction
of and maintained by a public authority and open to
public travel and which is not on a Federal-aid
system.
Article 6674d-1, V. T. C. S., provides:
From and after the effective date of this Act,
all moneys appropriated by the Congress of the
United States and allocated by the Secretary of
Agriculture of the United States to the State High-
way Department for expenditure on roads not on the
system of State Highways, may be expended by and
through the State Highway Department in conjunction
with the Bureau of Public Roads, for the improvement
of such roads and said Federal Funds may be matched,
or supplemented by such amounts of State funds as may
be necessary for proper construction and prosecution
of the work . State funds shall not be used exclusively
for the construction of roads not on the System of
State Highways, the expenditure of State funds on said
roads being limited to cost of construction and
engineering, overhead and other costs on which the ap-
plication of Federal Funds is prohibited or impractical.
(Emphasis added)
Article 6672, V. T. C. S., provides:
Any funds for public road construction in this
State appropriated by the Federal Government shall
be expended by and under the supervision of the
Department only upon a part of the system of State
Highways. (Emphasis added)
Article 6674d-1 repealed any statute in conflict to the extent of such
conflict. Acts 1939, 46th Leg., p. 579. Since article 6672 was passed in
p. 2369
The Honorable B. L. DeBerry page 3 (H-525)
1917, it has therefore been modified by 6674d-1 and no longer prohibits
the use of state funds to match or supplement federal grants for roads
not on the system of State highways.
Article 8, section 7a, of the Texas Constitution states:
Subject to legislative appropriation, allo-
cation 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
productions 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 adminis-
tration of such laws as may be prescribed by the
Legislature pertaining to the supervision of traffic
and safety on such roads: and for the payment of the
principal and interest on county and road district
bonds or warrants voted or issued prior to Janua,ry 2,
1939, and declar’ed eligible prior to January 2, 1945,
for payment out of the County and Road District Highway
Fund under existing law; provided, however, that one-
fourth (l/4) of such net revenue 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
construed as authorizing the pledging of the State’s
credit for any purpose. (Emphasis added)
This section requires certain revenues to be expended only for
“public roadways. ‘I Since 23 U. S. C. sec. 405 applies only to “public
roads or segments thereof, ” expenditures of State funds pursuant to
p. 2370
The Honorable B. L. DeBerry page 4 (H-525)
article 6674d-1 for the purpose of supplementing these federal funds are
consistent with article 8, section 7a of the Texas Constitution.
SUMMARY
Article 6674d-1 provides the State Highway
Department authority to expend State funds to
supplement or match federal funds received
pursuant to 23 U.S. C. sec. 405.
Very truly yours,
OHN L. HILL
General of Texas
-k--04/
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
p. 2371