TEE ATTORNEY GENERAL 

QF TEXAS 

February 7, 1963 

Honorable Terry Townsend 

Chairman, Highways and Roads Committee 

House of Representatives 

Austin, Texas 

Opinion No. C-11 

Re: Constitutionality of 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 constitutionality of 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 other provisions would require 

the Texas Highway Commission to set lower limits wherever 

highway conditions are such as to make the maximum 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 Legislature may not delegate 

its legislative powers. 

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 determine upon the basis of an 

engineering and traffic Investigation that 

any maximum prima facie speed herelnbefore 

set forth Is greater or less than Is reasonable or safe under the conditions found to 

exist at any intersection or other place or 

upon any part of a highway, taking into consideration the width and condition of the 

-43- 
. 

Hon. Terry Townsend, page 2 (C-11 ) 

pavement and othercircumstances on such 

portion of said highway as well as the usual 

traffic thereon. the Legislature hereby directs the State-Highway-Commission to determine and declare a reasonable and safe maximum prima facie speed limit thereat or thereby proper order of the Commission enter3on Its minutes, . . . which limit, when 

appropriate signs-giving notice thereof are 

erected, shall be effective at such intersections or other place or part of the highway at all times or during hours 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 engineering and traffic 

investigation specified in paragraph (a) of 

Section 167, follow its 'Procedure for Establishing Speed Zones' which is in use on the 

effective date of this act and as same may be 

subsequently revised 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 specifically prohibit the delegation 

of authority contal.ned in the proposed Act. Where there is 

no express prohibition, the Legislature has 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 Legislature may not delegate its legislative powers. It is also a general rule that 

if the Legislature has prescribed sufficient standards to 

guide the discretion conferred, the power is not legislative 

and the delagation is lawful. Gillaspie v. Department of 

2d 1'17: ce: 

-MAY'?: %~;e~~?;,‘%?&8 SW2d G42 Tgix 2:: 

App: 1955, n.r.e.). In the quoted'portions'of the proposed' 

-44- 
Hon. Terry Townsend, page 3 '(C- li ) 

Act, the Legislature has given clear and explicit instructions to the State Highway Commission as to the criteria 

to be applied in determining a reasonable and safe maximum 

prima facie speed limit. In Subsection (b) of Section 167,, 

the Commission is even directed to use a specific technique, 

already established and in use, as a means of arriving at 

the said reasonable and safe maximum speed. 

Further light was cast upon the problem of delegation of legislative power in Nichols v. 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 administrative officer there 

is an area for the exercise of his discretion does not render the delegation of authority unlawful 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.t is 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 sufficiently explicit instructions, so as not 

to constitute an unlawful delegation of legislative power. 

SUMMARY 

The authority granted In House Bill 50, 

58th Legislature, authorizing the State 

Highway Commission to set speed limits 

lower than ,70 miles per hour wherever 

highway conditions are such as to make 

that speed unsafe, is suff'icienty limited 

and contains sufficiently explicit lnstructions, and does not constitute an unlawful 

delegation of the legislative power, and is 

therefore constitutional. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

MLQ:wb:ms 

w&e 

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 

-46-