Honorable Ben Atwell 

Chairman 

Interim State and Local 

Tax Committee, and 

House Standing Revenue 

and Taxation Committee 

1002 Dallas Federal Savings Bldg. 

Dallas, Texas 

Opinion No. C-783 

Re: Whether an increase 

in the motor fuel 

tax may be used to 

remove billboards 

and junkyards from 

land adjacent to 

certain highways 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 Beautification Act of 1965.” 

Our opinion is that no portion of the tax now imposed 

on gasoline by the present provisions of Chapter 9 of Title 

122-A, Taxation-General, Vernon's Civil Statutes, or any 

increase of that tax, may be used to comply with any of the 

provisions of the Federal Highway Beautificat~ion Act of 1965 

which provide for either, 

1) the removal of signs, displays and devices 

from land adjoining certain highways and 

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Honorable Ben Atwell, Page 2 (c-783) 

The Federal Highway Beautification Act of 1965 was 

approv ,ed October 22, 1965. It is Public Law 89-285, 79 

Stat. 1028, and is comprehended within 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 determines has 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 said highways 

of outdoor junkyards situated on land outside of the right-of-way of said highways 

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 and maintenance 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 the main traveled 

way of the system, . . ." 

and, 

2) ‘I. . . the establishment and 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 the main 

traveled way of the system, . . .' 

shall be reduced by 10 per centum of the amounts which such 

States would otherwise have received from the Federal government under Section 104 of said Title 23. 

136b, Title 23. 

Sections 131b and 

The term "effective control" relative to outdoor signs, 

displays and devices means the removal of all of them within 

the prescribed distance, except those which conform to the 

standards promulgated by the Secretary; this term as related 

to outdoor junkyards means the removal or screening from view 

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. I. 

Honorable Ben Atwell, Page 3 (C-783) 

from the highway of those out of doors within the prescribed 

distance. The Secretary is the Secretary of Commerce. 23 

U.S.C.A. Sec. 101(a). 

The purposes for which the revenues from the-Texas 

motor fuel (gasoline) tax now imposed by Chapter 9 of Title 

122-A, JTaxation-General, Vernon's Civil Statutes, may be 

used, together with the allocation of such revenues, are 

stated in Article VIII, Section 7-a of our state Constitution 

which reads as follows: 

"Subject to legislative appropriation, 

allocation 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 production 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 rightsof-way, constructing,maintaining, and policing, 

such public roadways, and for the administration of such laws as may be prescribed by the 

‘Legislature pertaining to the supervision of 

traffic and safety on such roads; and for trie 

payment of the principal and interest on 

county and road district bonds or warrants 

voted or issued prior to January 2, 1939 and 

declared eligible prior to January 2, 1945, 

for payment out of the County and Road District 

Highway Fund under existin 

however, that one-fourth ( t ) 

law; provided, 

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." 

added) 

(Emphasis 

We do not find a statutory definition of a highway 

right-of-way, but such right is generally held to be the 

mere right to pass over the land of another. Right-of-Way 

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Honorable Ben Atwell, Page 4 (c-783) 

City Oil, Gas & Mfg. Co., 106 Tex. 94, 

(1913) * B 0 It 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 separately but 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, 

, . . the main purposes of roads and streets 

are for travel and transportation. . . ." 

Pursuant to Article VIII, Section 7-a of our Constitution that portion of the net revenue allocated for highway purposes which might be applied in any conceivable 

manner to the Federal Highway Beautification Program, 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 Legislature pertaining 

to the supervision of traffic and safety 

on such roads. 

This Section of our Constitution was 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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Honorable Ben Atwell, Page 5 (C-783) 

We do not believe that the people of this State who adopted 

this provision at that time contemplated that the revenue 

derived from the motor vehicle registration fees and taxes 

on motor fuel and lubricants be 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 fundamental rule for the government 

of courts in the interpretation or construction of a Constitution is to give effect to 

the intent of the people who adopted it." 

We do not perceive how any of the above authorized 

classes of expenditures authorized by 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 comprise no 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 present Attorney 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 the monies available for such acquisitions, which 

is the subject of this present opinion. 

SUMMARY 

The provisions of Article VIII, Section 

7-a of our State Constitution prohibit 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 

certain highways and which land 

is outside of the right-of-way 

of said highways, 

or 

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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-way of 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 said highways. 

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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