NEY GENERAL
OF TEXAS

February 4, 1966

Honorable D.,C. Greer State Highway Engineer Texas Highway Department Austin, Texas 78701 Opinion No. C-595

Re:Whether the Texas Highway Department has the authority to utilize certain Federal aid funds, allocated to Texas under Public Law 89-285, for the acquisition of interests inand improvement of strips of land necessary for the restoration, preservation and enhancement of the scenic beauty adjacent to Federalaidhighways. ,DearMr. Greer:

You have requested an opinion of this office concerning the authority of the Texas Highway Department to utilize certain Federal aid funds, tobe allocated toTexas under Public Law 89-285. Inyour request you refer toTitle III of Public Law 89-285 which amends Section 319 ofTitle 23,United States Code. You also state that Texas statutes “...provide for the cooperative endeavor between the State of Texas and the United States Government in the utilization of Federal-aid funds for the development of thehighway system."
Public Law 89-285 is captioned "Anact to provide for scenic development and roadbeautification of the Federal-aid highway system." This act isknown as the Highway Beautification Act of 1965. Title III of this actprovides that "the secretary may approve as apart of the construction of Federal-aid highways the costs of landscape and roadside development

...I(Subsection b of Title III further provides inpart that:

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"Anamount equivalent to 3per centum of the funds apportioned to a State for Federal-aid highways for any fiscal year shall be allocated to that State out of funds appropriated under authority of this subsection, which shall be used for landscape and roadside development within thehicthwavriqht-of-wav and for acquisition of interests inand improvement of strips of land necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to such highwavs, including acquisition and development ofpublicly owned and controlled rest and recreation areas and sanitary and other facilities within or adjacent to thehiqhwav riqht-of-way reasonably necessary to accommodate the traveling public, without being matched by the State

..." (Emphasis added.).

It should be noted that the uses forwhich Congress appropriated funds inTitle III are as follows: (1)for landscape and roadside development within thehishwav risht-of-wav, (2)for acquisition of interests inand improvement of strips of land necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to suchhiqhwavs, and for (3)acquisition and development ofpublicly owned and controlled restand recreation areas and sanitary and other facilities within or adjacent to the hiqhwav riqht-of-way reasonably necessary to accommodate the traveling public. The monies allocated under the provisions of Title III are, therefore, tobe expended inpart within existing right-of-way and inpart outside existing rightof-way on lands,adiacentto such right-of-way.

Your opinion request is limited to the second mentioned use in subsection (b)of Title III of Public Law 89-285, namely, "acquisition of interests inand improvement of strips of land necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to suchhighways..." You request our opinion, in other words, on'~theauthority of the Texas Highway Department toutilize these Federal-aid funds for the acquisition

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of interests inand improvement of strips of land necessary for the restoration, preservation and enhancement of scenic beauty adjacent to rights-of-way of Federal Aid Highways inTexas.

The people of Texas in Section 24'ofArticle 16 of the Constitution of Texas have conferred the power and imposed the duty upon the Legislature to provide forpublic roads in the State of Texas. The Legislature, therefore, has theprimary and plenary power to control~and regulate public roads: but the Legislature may delegate that authority. Texas Hiqhwav Commission
v. El Paso Bldq. and Const. Trades Council, 149Tex. 348, 234 S.W.2d 857 (1951);State v. Citv ofAustin, 160Tex. 348, 331 S.W.2d 737 (1960).

The Articles inChapter 1of Title 116 ofVernon's Civil Statutes contain most of the civil statutes of Texas pertaining to the authority delegate~dby the Legislature'to the State Highway Department in regard to State highways. Article 6673, Vernon's Civil Statutes, provides that the State Highway Commission "isauthorized to take over andmaintain thevarious state highways inTexas

...(I

InArticle 6674w-3 ofTitle 116,Vernon's Civil Statutes, entitled "Acquisition of property," the Legislature conferred upon the State Highway Commission, inaddition to other powers conferred by law, certain powers of purchase and condemnation forhighway purposes. Subsection l(a) ofArticle 6674w-3, which delegates the powers ofpurchase, isquoted as follows:

II

... Any land in fee simple or any lesser estate or interest therein;'anv property riqhts of anykind or character including,, but not limited to, riqhts of ingress and eqress and reservation riqhts in landwhich restrict orprohibit the addinq of new, or addition to ormodification of existinq improvements on such land, or subdividinq the same: and any timber, earth, stone, gravel, or other material: which'the State Hiqhwav Commission may in its judqment determine tobe necessary or convenient to any State Hiqhwav tobe

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constructed, reconstructed, maintained, widened, straightened or lengthened includins, but not limited to, any land, property riohts ormaterials deemed by theState Hishwav Commission necessary or convenient for the purpose ofprotecting any State Highway; draining any State Highway: diverting streams or rivers or any other,watercourse from the right ofway of any State Highway; storing materials and equipment used in'the construction and maintenance of State Highways: constructing and operating warehouses and otherbuildings and facilities used in connection with the construction, maintenance, and operation of State Highways: laying out, construction, and maintenance of roadside parks: and any other purpose related to the laying out, construction, improvement, maintenance, beautification, preservation and operation of State Hishwavs. mav be purchased bv the State Hiqhwav Commission in the name of the State ofTexas, on such terms and conditions and in suchmanner as the Hiqhway Commission may deem proper." (Emphasis added)

Does Subsection l(a) ofArticle 6674w-3 contain legislative authorization to the Department topurchase interests in strips of land adjacent tohighway right-of-way?

The cardinal rule of statutory construction is to ascertain and give effect to the legislative intent. Subsection 6 of Arti,&e 10,Vernon's Civil Statutes: State v. Shoppers World, Inc.380 S-1 2d 107 !(Tex;Siipi1964). When the legislative intent of a statute isplain and itsmeaning ispatent, there isno need for resort to aids of statutory construction. ,FireAssn. of Philadelphia
v. Love, 101Tex. 376, 108 S.W. 158 (1908);Fox v. Burqess, 157 Tex

_292, 302 S.W.2d 404 (1957).The Court's only duty in such a situation is to observe and enforce the statute. Gilmore v.Waples, 108Tex. 167, 188 S.W. 1037 (1916).

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Hon. D. c. Greer, page 5 (C-595)

Subsection l(a) ofArticle 6674w-3 does not plainly say that the Department may purchase interest in strips of land adjacent tohighway right-of-way. The'statute isvague and in doubt on this point. It is, therefore, necessary to resort to aids and rules of statutory construction to ascertain the legislative intent. ~Cannon'sAdm. v.Vauqhn, 12Tex. 399, at 402 (1854):Kay v. Schneider, 110Tex. 369, 221 S.W.880 at 884 (1920); State v. Shoppers World, Inc., supra.
Subsection l(a) ofArticle 6674w-3 isa complex statutory sentence which has three subjects separated by semicolons. These three subjects describe three categories of itemswhich the State Highway Commission may purchase. These phrases are followed by an adjective clause modifying the compound subject of the sentence. This dependent clause ("whichthe State Highway Commission may ...") limits the powers of purchase delegated by imposing the requirement that the State Highway Commission determine (1)that the item isnecessary or convenient to any State Highway and (2)that the itembe necessary or convenient for any one of a series of specified purposes. This adjective clause is then followed by theverb and object of the sentence, towit: "maybe purchased by the State Highway Commission in the name of the State of Texas, on such terms and conditions and in suchmanner as the Highway Commission may deem proper."

The three subjects describe three different types or categories ofproperty that may be purchased by the Department: the three subjects do not overlap in their scope of description. To read the statute otherwise would violate a rule of statutory construction which requires that each sentence, clause, phrase andword be given effect ifreasonably possible. Spence v. Fenchler, 107Tex. 443, 180 S.W. 597 at 601 (1916);EddinsWalcher Butane Co. v. Calvert, 156Tex. 587, 298 S.W.2d 93 at 96 (1957); Perkins v. State, 162Tex. 456, 367 S.W.2d 140 at 146 (1963). It ispresumed that each phrase was inserted for
a definite purpose, and the statute should not be construed so as to result in the omission of aphrase from the statute. Perkins v. State, supra: Moore v. Commissioners! Court of Bell County, 175 S.W. 849 at 851 (Tex.Civ.App. 1916 error dism.)

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Hon. D. c.Greer, page 6 (C-595)

The first subject grants the Department sufficient power topurchase all lands in fee simple or any lesser estate therein, such as an easement, necessary for right-of-way for State Highways. The third subject grants the Department the power to purchase materials necessary for State Highways. Obviously the Legislature intended that theDepartment be empowered topurchase materials located outside existing orproposed right-of-way proper.

The second subject grants the Department the power to purchase "anyproperty rights of anykind or character including, but not limited to, rights of ingress and egress and reservation rights in landwhich restrict orprohibit the adding ofnew, or addition to ormodification of existing improvements on such land,
or subdividing the same." The Legislature thus intended to grant to theDepartment thepower topurchase "property rights" in land outside existing rights-of-way.

Since the first subject grants sufficient power topurchase all lands necessary for rights-of-way, the Legislature must have had inmind a different purpose inadding the second subject. Also, the specific kinds and character of property rights mentioned inthe second subject clearly refer to interests in land outside of existing rights-of-way, such as (1)rights of ingress and egress and (2)reservation rights 

### in landwhich (a)restrict or prohibit the adding ofnew, or addition to ormodification of existing improvements on such land, or (b)restrict orprohibit subdividing the same. The phrase "including, but not limited to" isa legislative instruction prohibiting the application of the rule of construction known as "ejusdem generis" defined and applied in Stanford v. Butler, 142Tex. 692, 181 S.W.2d 269, 272 (1944). The general terms are, therefore, tobe accorded their full scope ofmeaning without being limited to thekinds and character of property rights specifically mentioned.

The grant ofpower topurchase property rights outside existing rights-of-way isnot limited inkind or character, but the grant of power is limited to aHighway Commission determination that the property right tobe purchased isnecessary or convenient to State Highways for one of anumber of enumerated purposes. In the adjective clause enumerating the purposes forwhich purchases may be made, the Legislature included the purpose of "beautification" of State Highways.

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Hon.,D. C. Greer, page 7(C-595)

The Legislature did not define theword "beautification" in the statute. There isno indication, however, that theword is used as a term of trade or art. The Legislature is, therefore, presumed tohave intended the common meaning or"ordinary signification“ of theword. Subsection 1 ofArticle 10, Vernon's Civil Statutes;Turner v. Cross, 83 Tex. 218, 18 S.W.578, 579 (1892);Eddins-WalcherButane Co. v. Calvert, supra; Tm P.R. CO. v.,Railroad Comm., 105Tex. 386, 150 S.W. 878 (1912): State ex rel.Walton v.Yturria, 109Tex. 220, 204 S.W. 315 at 316 (1918). "Beautification" isnot an easily defined term; the scope of the term itself isvague. It isproper to consult a dictionary to ascertain the ordinary significance or common usage of theword. Eddins-Walcher Butane Companv v. Calvert, supra; Texas & P.R. Co.v. Railroad Comm., 105T&x. 386 150 S.W. 878 (1912);Board of Insurance Comm'rs v. Duncan, 174 S.W.2d 326, 328 (Tex.Civ. App. 1943, error ref.)

"Beautification" isdefined inWebster's Seventh New Collesiate Dictionary (Springfield, Mass.: G. & C. Merriam Company, Publisher, 1963), as "the act orprocess ofbeautifying." The same dictionary defines "beautify" as "tomake beautiful or addbeauty to." "Beauty"was defined in the same dictionary as "the quality or aggregate of qualities in aperson or thing that gives pleasure to the senses orpleasurably exalts themind
or spirit." The purchase of interest in strips of land adjacent tohighways to enhance scenic beauty would add beauty--in the ordinary significance of theword--to highways: the purchase oft interest in such strips of land adjacent tohighways, therefore, falls within the purpose ofbeautification expressly mentioned in Subsection l(a) ofArticle 6614w-3. The,Legislature in Subsection l(b) ofArticle 6674w-3 delegated to the State Highway Department certain authority to acquire property by exercise of the power of eminent domain. The language of Subsection l(b) isnot similar to the language of Subsection l(a) in several important ways. The clause enumerating thepurposes forwhich thepower of eminent domain may be exercised does not mention "beautification." Subsection l(b) does not, therefore, expressly authorize the State Highway Department to acquire property forbeautification of,State Highways by exercise of the power of eminent domain.

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Hon.,D. C.Gfeer, page 8 (C-595)

Ithas been said that I'...the power of eminent domain must'be conferred by the Legislature, either expressly orby necessary implication, andwill not be gathered from doubtful inferences.' Coastal State Gas Producinq Company v. Paqe, 158 Tex. 151, 309 S.W.2d 828, 831 (1958). The State Highway Department does not need to acquire property forbeautification of State Highways by the exercise of the power of eminent domain in order to carry out the purposes ofArticle 6674~ as demonstrated by the fact that the Department has operated under theAct since 1957 without exercising such power for such purpose. There is, therefore, no necessary implication of agrant of authority to condemn property forbeautification of State Highways.

Article 6672,~Vernon's Civil Statutes, requires that, "Any funds forpublic road construction in this State appropriated by the Federal Government shallbe expended by and under the supervision of the Department only upon apart of the system of State Highways."

In conclusion, the State Highway Commission may acquire by purchase, but not by condemnation, in the name of the State of Texas, on such terms and conditions and in suchmanner as the Highway Commission may deem proper, interests in strips of land necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to State Highways, deemed by the State Highway Commission necessary or convenient for the purpose of beautification of State Highways. The State Highway Commission may achieve the beautification of State Highways by widening existing rights-of-way to incorporate such strips of land necessary for the restoration, preservation, and enhancenant of scenic beauty; or the State Highway Commission may purchase interest in strips of land adjacent to State Highways for thebeautification of suchhighways without:alteration of the existing lines of rights-of-way. Monies allocated to the State of Texas under the provisions of Title III of Public~Law 89-285, however, must be expended by the Department only on those Federal-aid highways which are apart of the system of State Highways.

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SUMMARY

The Texas Highway Department isauthorized by virtue ofArticle 6674w-3, Vernon's Civil Statutes, topurchase interests in strips of land necessary for the restoration, preservation and enhancement of the scenic beauty adjacent to Federal-aid Highways inTexas which are a part of the system of State Highways.

Yours very truly,

WAGGONER CARR Attorney General

RAS:tv;me

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman Carroll Graham William Hemphill John Banks Roger Tyler

APPROVED FOR THEATTORNEY GENERAL BY: T. B.Wright BY 1 fzG.LQk,L Richard A. Shannon Assistant Attorney General

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