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 

in and improvement of strips 

of land necessary for the 

restoration, preservation and 

enhancement of the scenic 

beauty adjacent to Federalaid highways. 

,Dear Mr. Greer: 

You have requested an opinion of this office concerning the 

authority of the Texas Highway Department to utilize certain 

Federal aid funds, to be allocated to Texas under Public Law 

89-285. In your request you refer to Title III of Public Law 

89-285 which amends Section 319 of Title 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 the highway system." 

Public Law 89-285 is captioned "An act to provide for 

scenic development and road beautification of the Federal-aid 

highway system." This act is known as the Highway Beautification 

Act of 1965. Title III of this act provides that "the secretary 

may approve as a part of the construction of Federal-aid highways 

the costs of landscape and roadside development . ..I( Subsection b 

of Title III further provides in part that: 

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Hon. D. C. Greer, page 2 (C-595) 

"An amount equivalent to 3 per 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 

the hicthwav riqht-of-wav and for acquisition of 

interests in and improvement of strips of land 

necessary for the restoration, preservation, and 

enhancement of scenic beauty adjacent to such 

highwavs, including acquisition and development 

of publicly owned and controlled rest and 

recreation areas and sanitary and other facilities 

within or adjacent to the hiqhwav 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 for which Congress appropriated funds in Title III are as follows: (1) for landscape and 

roadside development within the hishwav risht-of-wav, (2) for 

acquisition of interests in and improvement of strips of land 

necessary for the restoration, preservation, and enhancement of 

scenic beauty adjacent to such hiqhwavs, and for (3) acquisition 

and development of publicly 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, to be expended in part 

within existing right-of-way and in part outside existing rightof-way on lands ,adiacent to 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 in and improvement of strips of land 

necessary for the restoration, preservation, and enhancement of 

scenic beauty adjacent to such highways..." You request our 

opinion, in other words, on'~the authority of the Texas Highway 

Department to utilize these Federal-aid funds for the acquisition 

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Eon.,D.,C. Greer, page 3 (C-595) 

of interests in and improvement of strips of land necessary for 

the restoration, preservation and enhancement of scenic beauty 

adjacent to rights-of-way of Federal Aid Highways in Texas. 

The people of Texas in Section 24'of Article 16 of the 

Constitution of Texas have conferred the power and imposed the 

duty upon the Legislature to provide for public roads in the 

State of Texas. The Legislature, therefore, has the primary 

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, 149 Tex. 348, 234 

S.W.2d 857 (1951); State v. Citv of Austin, 160 Tex. 348, 331 

S.W.2d 737 (1960). 

The Articles in Chapter 1 of Title 116 of Vernon's Civil 

Statutes contain most of the civil statutes of Texas pertaining 

to the authority delegate~d by the Legislature'to the State 

Highway Department in regard to State highways. Article 6673, 

Vernon's Civil Statutes, provides that the State Highway 

Commission "is authorized to take over and maintain the various 

state highways in Texas . ..(I 

In Article 6674w-3 of Title 116, Vernon's Civil Statutes, 

entitled "Acquisition of property," the Legislature conferred 

upon the State Highway Commission, in addition to other powers 

conferred by law, certain powers of purchase and condemnation 

for highway purposes. Subsection l(a) of Article 6674w-3, 

which delegates the powers of purchase, is quoted as follows: 

II . . . Any land in fee simple or any lesser 

estate or interest therein;'anv property 

riqhts of any kind or character including,, 

but not limited to, riqhts of ingress and 

eqress and reservation riqhts in land which 

restrict or prohibit the addinq of new, or 

addition to or modification 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 to be necessary 

or convenient to any State Hiqhwav to be 

-2873- 
Hon. D. C. Greer,,page 4 (C-595) 

constructed, reconstructed, maintained, widened, 

straightened or lengthened includins, but not 

limited to, any land, property riohts or materials 

deemed by the State Hishwav Commission necessary 

or convenient for the purpose of protecting any 

State Highway; draining any State Highway: diverting 

streams or rivers or any other,watercourse from 

the right of way of any State Highway; storing 

materials and equipment used in' the construction 

and maintenance of State Highways: constructing 

and operating warehouses and other buildings 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 of Texas, on such terms and conditions and 

in such manner as the Hiqhway Commission may deem 

proper." (Emphasis added) 

Does Subsection l(a) of Article 6674w-3 contain legislative 

authorization to the Department to purchase interests in strips 

of land adjacent to highway 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 

is plain and its meaning is patent, there is no need for resort 

to aids of statutory construction. ,Fire Assn. of Philadelphia 

v. Love, 101 Tex. 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, 

108 Tex. 167, 188 S.W. 1037 (1916). 

-2874- 
. 

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

Subsection l(a) of Article 6674w-3 does not plainly say 

that the Department may purchase interest in strips of land 

adjacent to highway right-of-way. The'statute is vague 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's Adm. v. Vauqhn, 12 Tex. 399, at 402 

(1854): Kay v. Schneider, 110 Tex. 369, 221 S.W.880 at 884 (1920); 

State v. Shoppers World, Inc., supra. 

Subsection l(a) of Article 6674w-3 is a complex statutory 

sentence which has three subjects separated by semicolons. 

These three subjects describe three categories of items which the 

State Highway Commission may purchase. These phrases are followed 

by an adjective clause modifying the compound subject of the 

sentence. This dependent clause ("which the State Highway 

Commission may . . . ") limits the powers of purchase delegated by 

imposing the requirement that the State Highway Commission 

determine (1) that the item is necessary or convenient to any 

State Highway and (2) that the item be necessary or convenient 

for any one of a series of specified purposes. This adjective 

clause is then followed by the verb and object of the sentence, 

to wit: "may be purchased by the State Highway Commission in 

the name of the State of Texas, on such terms and conditions and 

in such manner as the Highway Commission may deem proper." 

The three subjects describe three different types or 

categories of property 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 

and word be given effect if reasonably possible. Spence v. 

Fenchler, 107 Tex. 443, 180 S.W. 597 at 601 (1916); EddinsWalcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93 at 

96 (1957); Perkins v. State, 162 Tex. 456, 367 S.W.2d 140 at 

146 (1963). It is presumed that each phrase was inserted for 

a definite purpose, and the statute should not be construed so 

as to result in the omission of a phrase 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 

to purchase 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 the Department be empowered to purchase 

materials located outside existing or proposed right-of-way proper. 

The second subject grants the Department the power to 

purchase "any property rights of any kind or character including, 

but not limited to, rights of ingress and egress and reservation 

rights in land which restrict or prohibit the adding of new, or 

addition to or modification of existing improvements on such land, 

or subdividing the same." The Legislature thus intended to 

grant to the Department the power to purchase "property rights" in 

land outside existing rights-of-way. 

Since the first subject grants sufficient power to purchase 

all lands necessary for rights-of-way, the Legislature must have 

had in mind a different purpose in adding the second subject. 

Also, the specific kinds and character of property rights mentioned 

in the 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 land which (a) restrict or prohibit 

the adding of new, or addition to or modification of existing 

improvements on such land, or (b) restrict or prohibit subdividing 

the same. The phrase "including, but not limited to" is a legislative instruction prohibiting the application of the rule of 

construction known as "ejusdem generis" defined and applied in 

Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 272 (1944). 

The general terms are, therefore, to be accorded their full scope 

of meaning without being limited to the kinds and character of 

property rights specifically mentioned. 

The grant of power to purchase property rights outside 

existing rights-of-way is not limited in kind or character, but 

the grant of power is limited to a Highway Commission determination 

that the property right to be purchased is necessary or convenient 

to State Highways for one of a number of enumerated purposes. In 

the adjective clause enumerating the purposes for which purchases 

may be made, the Legislature included the purpose of "beautification" 

of State Highways. 

-2876- 
. ., 

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

The Legislature did not define the word "beautification" in 

the statute. There is no indication, however, that the word is 

used as a term of trade or art. The Legislature is, therefore, 

presumed to have intended the common meaning or"ordinary 

signification“ of the word. Subsection 1 of Article 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., 105 Tex. 386, 150 S.W. 878 (1912): 

State ex rel. Walton v. Yturria, 109 Tex. 220, 204 S.W. 315 at 

316 (1918). "Beautification" is not an easily defined term; 

the scope of the term itself is vague. It is proper to 

consult a dictionary to ascertain the ordinary significance or 

common usage of the word. Eddins-Walcher Butane Companv v. 

Calvert, supra; Texas & P.R. Co. v. Railroad Comm., 105 T&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" is defined in Webster's Seventh New 

Collesiate Dictionary (Springfield, Mass.: G. & C. Merriam 

Company, Publisher, 1963), as "the act or process of beautifying." 

The same dictionary defines "beautify" as "to make beautiful or 

add beauty to." "Beauty" was defined in the same dictionary as 

"the quality or aggregate of qualities in a person or thing 

that gives pleasure to the senses or pleasurably exalts the mind 

or spirit." The purchase of interest in strips of land adjacent 

to highways to enhance scenic beauty would add beauty--in the 

ordinary significance of the word--to highways: the purchase oft 

interest in such strips of land adjacent to highways, therefore, 

falls within the purpose of beautification expressly mentioned 

in Subsection l(a) of Article 6614w-3. 

The,Legislature in Subsection l(b) of Article 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) is not similar to the language of 

Subsection l(a) in several important ways. The clause enumerating 

the purposes for which the power 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 for beautification of,State Highways by exercise 

of the power of eminent domain. 

-2877- 
1.. 

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

It has been said that I'... the power of eminent domain 

must'be conferred by the Legislature, either expressly or by 

necessary implication, and will 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 for beautification of State 

Highways by the exercise of the power of eminent domain in order 

to carry out the purposes of Article 6674~ as demonstrated by the 

fact that the Department has operated under the Act since 1957 

without exercising such power for such purpose. There is, therefore, no necessary implication of a grant of authority to condemn 

property for beautification of State Highways. 

Article 6672,~Vernon's Civil Statutes, requires that, "Any 

funds forpublic 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." 

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 such manner 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 the beautification 

of such highways 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 a part of the system of State Highways. 

-2878- 
Hon. D. C. Greer, page g (C-595) 

SUMMARY 

The Texas Highway Department is authorized 

by virtue of Article 6674w-3, Vernon's Civil 

Statutes, 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 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 THE ATTORNEY GENERAL 

BY: T. B. Wright 

BY 1 

fzG.LQk,L 

Richard A. Shannon 

Assistant Attorney General 

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