TEE ATTORNEY GENERAL QF TEXAS

February 7, 1963

Honorable Terry Townsend Chairman,Highways and Roads Committee House of Representatives Austin, Texas OpinionNo. C-11
Re: Constitutionalityof H.B. 50, with regard to the delegation to the State Highway Commission of authority to setspeed limitson the State Highway System, lower than a maximum Dear Mr. Townsend: speed of 70 miles per hour.

You have requested the opinion of this office as to the constitutionalityof certain provisions of House Bill 50, 58th Legislature. This proposed Act would raise the maximum permissible speed on any highway In this State to 70 miles per hour, while otherprovisionswould require the Texas Highway Commissionto set lower limitswherever highway conditionsare such as to make themaximum speed unsafe. The problem posed Is whether the authority granted to the State Highway Commission is so broad as to violate the general rule that the Legislaturemay not delegate its legislativepowers. For convenience, the pertinent portions of the proposed Act are quoted:

"sec. 167. Authority of the State Highway Commission to Alter Maximum Prima Facie Speed Limits. "(a) Whenever the State Highway Commission shall determineupon the basis of an engineeringand traffic Investigationthat any maximum prima facie speedherelnbefore set forth Is greater or less than Is reasonable or safe under the conditions found to exist at any intersection or otherplace or upon any part of a highway, taking into considerationthe width and condition of the
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Hon. Terry Townsend,page 2 (C-11 )

pavement and othercircumstances on such portion of saidhighway as well as the usual traffic thereon. the Legislaturehereby directs the State-Highway-Commissionto determine and declare a reasonable and safemaximum prima facie speed limit thereat or thereby proper order of the Commission enter3on Itsminutes,

. . .which limit,when appropriate signs-givingnotice thereof are erected, shallbe effectiveat such intersections or other place or part of the highway at all times or duringhours of daylight or darkness, or at such other times as may be determined;provided,however, that said State Highway Commission shall not have the authority to modify or alter the basic rule established in paragraph (a) of Section 166 nor to establish a speed limit higher than seventy (70)miles per hour. "(b) The State Highway Commission shall, in conducting the engineeringand traffic investigation specified in paragraph (a) of Section 167, follow its 'Procedurefor Establishing Speed Zones'which is in use on the effective date of this act and as samemay be subsequentlyrevised for reasons of technological advancements in traffic operation, design and construction of highways and motor vehicles, as well as the safety of the motoring public."
An examination of the Constitution of Texas reveals no provision that would specificallyprohibit the delegation of authority contal.ned in the proposed Act. Where there is no expressprohibition, the Legislaturehas authority to act. Houston Lighting and Power Co. v. Fleming, 128 S.W.2d 487 1Tex.M S.W.2d ;$"' 1939, rev. on other grounds, 135 Tex. 463, 138

The general rule Is that the Legislaturemay not delegate its legislativepowers. It is also a general rule that if the Legislaturehas prescribed sufficient standards to guide the discretion conferred, the power is not legislative and the delagation is lawful. Gillaspiev. Department of 2d 1'17:

ce: -MAY'?: **%~;e~~?;, ‘** **%?&8** SW2d G42 Tgix 2:: App: 1955, n.r.e.). In the quoted'portions'ofthe proposed'

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Act, the Legislaturehas given clear and explicit instructions to the State Highway Commissionas to the criteria to be applied in determining a reasonable and safemaximum prima facie speed limit. In Subsection (b) of Section 167,, the Commission is even directed to use a specific technique, already establishedand in use, as a means of arriving at the said reasonableand safemaximum speed.

Further lightwas cast upon the problem of delegation of legislativepower in Nicholsv. Cits of Dallas, 347 S.W.2d 326 (Tex.Civ.App.1961, n.r.e !. , ) when, at page 335,’ Chief Justice Dixon stated:

"The fact that under a delegation of authority to an administrativeofficer there is an area for the exercise of his discretion does **not** render the delegation of authorityunlawful if the standards formulated for his guidance and the limits of his discretion, though general, are capable of reasonable application."
In view of the foregoing, J.tis the opinion of this office that the delegation of authority to the State Highway Commfssion, contained in House Bill 50, is sufficiently limited and contains sufficientlyexplicit instructions, so as not to constitutean unlawful delegation of legislativepower. SUMMARY The authoritygranted In House Bill 50, 58th Legislature,authorizing the State Highway Commissionto set speed limits lower than ,70miles per hour wherever highway conditions are such as to make that speedunsafe, is suff'icienty limited and contains sufficientlyexplicit lnstructions, and does not constitutean unlawful delegation of the legislativepower, and is therefore constitutional. Yours very truly, WAGGONER CARR Attorney General

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Assistant' -45-Hon. Terry Townsend,page 4 (C-11)

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Marietta Payne Frank Booth Arthur Sandlln
APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone

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