Honorable Ben Atwell

Chairman Interim State and Local Tax Committee, and House Standing Revenue and Taxation Committee 1002 Dallas Federal Savings Bldg. Dallas, Texas OpinionNo. C-783
Re: Whether an increase in themotor fuel taxmay be used to removebillboards and junkyards from land adjacent to certainhighways or to screen from view said junkyards.
Dear Mr. Atwell:

You ask our opinion as to 11 whether or not a one cent increase in the'gasoline tax (i.e.., the' 3/b allotted to highways under tne Constitution)could be used to comply with the terms of the Federal Highway BeautificationAct of 1965.”
Our opinion is that no portion of the taxnow imposed on gasolineby the present provisionsof Chapter 9 of Title 122-A,Taxation-General,Vernon's Civil Statutes, or any increase of that tax, maybe used to complywith any of the provisions of the Federal Highway Beautificat~ion Act of 1965 which provide for either,

1) the removal of signs,displaysand devices from land adjoining certainhighways and

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The Federal Highway BeautificationAct of 1965 was approv ,edOctober 22, 1965. It is Public Law 89-285, 79 Stat. 1028, and is comprehendedwithin Title 23, U.S.C.A., Highways. Among other provisions, it provides that Federalaid highway funds apportioned on or after January 1, 1968, to any State which the Secretary determineshas not made provision for effective control of:

2) which land is outside of the right-of-way of said highways,

or the screening from view from saidhighways of outdoor junkyards situated on land outside of the right-of-wayof saidhighways by screening done on land outside of said right-of-way,or the removal of such junkyards situated on land outside of the rightof-way of said highways.

~1) ll.

. . the erection andmaintenance along the Interstate System and the primary system of outdoor advertising signs,displays, and devices which are within six hundred and sixty feet of the nearest edge of the rightof-way and visible from themain traveled way of the system,
. . ." and, 2) ‘I.

. . the establishmentand maintenance along the Interstate System and the primary system of outdoor junkyards,which are within one thousand feet of the nearest edge of the right-of-way and visible from themain traveledway of the system,
. . .' shall be reduced by 10 per centum of the amountswhich such States would otherwisehave received from theFederal government under Section 104 of said Title 23. 136b, Title 23. Sections 131b and

The term "effective control" relative to outdoor signs, displays and devicesmeans the removal of all of them within the prescribed distance, except thosewhich conform to the standardspromulgatedby the Secretary; this term as related to outdoor junkyardsmeans the removal or screening from view -3755-. .

. I.

Honorable Ben Atwell, Page 3 (C-783)

from the highway of those out of doorswithin the prescribed distance. The Secretary is the Secretaryof Commerce. 23 U.S.C.A. Sec. 101(a).

The purposes for which the revenues from the-Texas motor fuel (gasoline)taxnow imposedby Chapter 9 of Title 122-A, JTaxation-General,Vernon's Civil Statutes,may be used, together with the allocationof such revenues, are stated in Article VIII, Section 7-a of our state Constitution which reads as follows:

"Subject to legislativeappropriation, allocation and direction,allnet revenues remaining after payment of all refunds allowed by law and expensesof collectionderived from motor vehicle registrationfees, and all taxes, except gross productionand ad valorem taxes, on motor fuels and lubricantsused to propel motor vehicles overpublic roadways, shall be used for the solepurpose of acquiring rightsof-way, constructing,maintaining,and policing, such public roadways,and for the administration of such laws asmay be prescribedby the ‘Legislaturepertaining to the supervision of traffic and safetyon such roads; and for trie payment of the principaland interest on county and road districtbonds or warrants voted or issuedprior to January 2, 1939 and declared eligibleprior to January 2, 1945, for payment out of the Countyand Road District Highway Fund under existin however, that one-fourth ( t) law; provided, of such net revenue from themotor fuel tax shallbe allocated to the Available School Fund; and, provided, however, that thenet revenuederivedby counties frommotor vehicle registration fees shall never be less than themaximum amounts allowed to be retainedby each County and the percentage allowed tobe retainedby each County under the laws in effecton January 1, 1945. Nothing containedherein shallbe construed as authorizingthepledging of the State's credit for any purpose." added) (Emphasis

We do not find a statutorydefinition of a highway right-of-way,but such right is generallyheld to be the mere right to pass over the land of another. Right-of-Way -3756-Honorable Ben Atwell, Page 4 (c-783)

City Oil, Gas & Mfg. Co., 106 Tex. 94, (1913) B It * 0 on v. Byck 611 Co., Civ. A;p. 1936 114 S.W. Phrases, dlsm.)

Permanent Edition, "Rigi&%%ay", ;Words and
p. 410 et seq. Vol. 37A,

13(c),A highway roadway is defined in Article 67old Section Vernon's Civil Statutes, as follows:

way i~~~~ve~~a~~~~,ne;r;ha~rp~~~~~~r~~yau~:~h70r vehicular travel. In Che event a highway includes two (2) or more separate roadways the term 'roadway'as used herein shall refer to any such roadway separatelybut not to all such roadways collectively." This seems to be the generally accepted definition. Words and Phrases, Permanent Edition, "Roadway",Vol. 37A, pp. 525-528.

In State v. City of Austin, 160 Tex. 348, 331 S.W. 2d 737, 741 (1960) the Court reiterated the holding of prior decisions whirein it held that,

I,
, . . themain purposes of roads and streets are for travel and transportation.

. . ."
Pursuant to Article VIII, Section 7-a of our Constitution thatportion of the net revenue allocated for highway purposes which might be applied in any conceivable manner to the Federal Highway BeautificationProgram, may be used only for,

(1) acquiring rights-of-way,
(2) constructing,maintaining, and policing such public roadways, and (3) administration of such laws as may be prescribed by the Legislaturepertaining to the supervision of trafficand safety on such roads. This Section of our Constitutionwas adopted in 1946. This was just after the end of World War II, when our nation was still in the throes of recovery from that war.
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We do not believe that the people of this State who adopted this provision at that time contemplated that the revenue derived from themotor vehicle registration fees and taxes on motor fuel and lubricantsbe used in the beautification of land adjoining the highways. The applicable rule of constitutional construction Is stated in River Oaks Garden Club v. City of Houston, 370 S.W.2d 851, 854, (Tex.Sup. 'Lgb3)as follows:

"The fundamentalrule for the government of courts in the interpretationor construction of a Constitutionis to give effect to the intent of the people who adopted it."
We do not perceivehow any of the above authorized classes of expendituresauthorizedby our Constitution can be construed to include either the removal of signs, displays, and devices or junkyards from lands adjacent to our State highways and which are outside of the highway rights-of-way and which compriseno portion of our State highway system, or how such classes of expenditures can be construed to authorize the screening from view from said highways of outdoor junkyards situated on land outside of the right-of-way of said highways by screening done on land outside of the right-of-way.

Opinion C-595 (1965)of the presentAttorney General made certain holdings relating to the authority of the State Highway Department 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. That opinion does not consider, in any aspect, the source of themonies available for such acquisitions,which is the subject of thispresent opinion.
SUMMARY The provisionsof ArticleVIII, Section 7-a of our State Constitutionprohibit the'use of any of the net revenues allocable thereunder to highway usage to either, 1) the removal of signs, displays and devices from land adjoining certainhighways and which land is outside of the right-of-way of said highways,

or -3758-Honorable Ben Atwell, Page 6 (c-783)

2) the screening from view from said highways of outdoor junkyards situated on land outside of the right-of-wayof said highways by ,screening done on land outside of said rightof-way, or the removal of such junkyards situated on land outside of the right-ofway of saidhighways.

Yours very truly,
WAGGONER CARR Attorney General

By:

WEA/fb
APPROVED: OPIRION COMMITTEE W.z.s[Eert, Chairman
James McCoy W. 0. Shults Marietta Payne William Colburn Carroll Graham
APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright

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