OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Honorable Glenn Oounty Attorney sb3on county Mason, Texas Dear Sisr CapEa

**the Stats** -.. , 829 i

gate& by the 

### you"r*ferW88pror5ulS on; evidently under a supposed &rant o ed in Seation~ 8 0r drt

### Codeor Texas, a8 amend506, Aota or 1941, 47th perttaent parts 0r wh&h

Rate ma Speed 

### 0rvehiom3. unlawful. ror any person to operotor or other vehlele uponthe (60) Texas at a rote or speed in exmilea anhour aur%ng the daytime, or to drive ox operate a motor or other vehiole at a rate of speed in exoess of fifty-rive’Honorable Glenn Cams, Page 2

(551 miles per hour during the nighttke, or drive or operate nmotor or other vehicle within the

. _.m. - - corporate iiats or an incorporated oity or town, or within or through anytown or village not inoor rated, at a greater rate of speed than thirty (3Cfoniles par hour; provided, that it &al.1 bo unlawful to drive or operuto upon said public highways a oonmerolal motor vehicle, truck-traotor, trailer, or semitrailer as defined in this Aot at a rate or speed in exoess or forty-rive (451 sidles per hour during the nighttime. Trovided further, that it shall be unlawful to operate any motor vehiole engaged in this State in the business 0r transporting paosengers for oompensation or hire on anyhighway, road, or thoroughrare not privately ownedbetween cities, towns, and villages at a rate of speed in exoeas of dirty-five (55)' mlles'per hour. uWaytims aa used In thie **hot** shall meana hali hourbe~fore sunrise to a half'hour after sunset, and nighttime shall man at anyother hour. ...'

"'Provided further that no person shall drive avehiole on a highway at a speed Greater than is reasonable andprudent under ths oonditions then existing, having regard to the aatual ana potential hazards whenapproaching andcrossing an lnterseotion or a railway grade orossing, whenapproaching andsoing around a ourve, whenapproaohing a hill orest, whentraveling upon any **narrow**or winding roadway, or whenspeoial hazard exists with respeot to pedestrians or other trafflo or by reason of weather or highway oonditions;.and speed shall be so oontrollsd as szy be necessary to avoid colliding with any person, vehlole, or other oonveyanoe on or enteri,ng the highway in oomplianoe with legal requirements and the duty of all persons to use auf3oare. *'The State Blghway Conmission shall have the power andauthority upon the basis of an englneering andtraffia investigation to detsruine and fix the maximum,reasonable and prudent speed at any road or highway interscotions, railway Grade orossings, ourvea, hills, or upon any other part of aXonorable Glenn Cappa, Page 3

.I ‘,

- ! h&way leas than the maximumhereinbefore rired by thls’Aot, taking ‘into oonslderation the width andcondition of the pavement and other oiroumatanoes onsuoh portion of said highway as well as the usual traffio thereon. Thatwhenever the State HighwayCommission shall determine andrlr the rate of epeed at any said point u~pon anyhighwayat a less rate of speed than the maximumherelnberore set forth in this Aot andshall deolare the ~maxlmum,

reasonable andprudent speed limit thereat **by**proper order or the Comuisslon entered on its mlnutea, suah rate of speed shall become effective and operative at aald point on said highways when appropriate signs .&loin& notloe thereof are ereated under the order of the Commission at suoh interseotion or portion of the hi&way.

_ Theorder of ‘the State fllghway Commlselon,flxing the general ‘35mile per,hour speed Uaft, was pawesedSepten+ ber 22, 1942, **imd** is as Zollower

*Anengineer& Lana traffia lnvestlgation and survey of the Texas HighwaySystem having been made, the a0dsd0n finds that malntenanoe equipment, materials and supplies neoessary to maintain and prolong the life of the system in Its present condition are beooming increasingly difficult to obtain because of priorities andother resfrlotions of the Federal GOVernmenti that most of the highways oomprlsing the system are vital to the national delense and should be preserved In the best possible mennerfor auah use; that a reduction of the maximumspeed or motor vehiolee using suoh highways will dearease the wear and tear upon road surfaoes and at the sametime per&t the safe operation of vehieles with worn tires whlah oannot be raplaaed.

“It 1s therefore ordered bythe Coamtission upon the basis of such engineering, and.traffio investigatlon and survey, thet the maximumreasonable and prudent speed of motor vehiales on all highways aomprising the State highway System, outside the limits of inoorporated cities and towns, be reduoed to a

.HOnWable Glenll CappSi Page 4

speed not In exoess of 35miles per hour, and the State Highway,%gIneer Is auth0ri20a and ~direated

. to prooeed with the emotion of appropriate sims showing the uaxInua reasonable and prudent speed on all highways oon~IsIn(~ the State Ei.#way E.ystm, outside the limits of Inoorporated oities and towns, as not eroeeding 35 miles per hour.” Froma careful reading of the above statutory provision granting the l&&may ComissIon thb authority to determine what me mtimum reasonable and prudeut speeds upon oertaln seotious and pointa of the Terns highways, weare-In+ pressed with the belief that the wording of the statute Itself does not shoe an Intention to g.ive the Ilighway Comission euthority to establish ahewspeed 1Fmit of general anulicetion on all the nany thousands of miles of State iii&ways, but rather Inhioates a ooatrary intent. Theobvious In~tentof the grant Is to empower the Com.mIssIOnto do what the Legislature Itself could not praotioably do: to Ceternine md fix mrixInum

safe speed limits (below the general~maxfaun limits) **at** partioular “road ,or highway Intersections, reilway grade orossi~s, curves, hIl1f.P or upon my other pertioular seotion of highwaywhioh, because of predeteminod ‘looal--not general--oondltIons, might present e.xtraordInary hazards to twf fro safsty.

But the quoted order of the Commission goes beyond the authority granted,,~andin effeot, attempts to repeal a general penal IJ%W passed by the Legislature, md substitute in Its plaoe en order passed by anadmInIstretIve board.

While wereaognize the patriotio notioes whioh im- . pellod Its paseage yet It Is our opinion that ~saidorder of the State Highway 6ommIssIon, fixing the mexinua speed limit ohall highways oonprisInS the State Highway system at 35 miles per hour, is in exoess of the ComiesIonrs authority and therefore imtilid. TheLegislature la nowIn sooaion and om nake suoh changes as It deems desirable.

aleexpress no opinion oonoerning the oonatitutionalitg of the delegation of authority oontained In saIia Seotion 6, nor Is this opinion to be oonstrued 3s passfnf, upon the legality of other orders of the State EIghwey Co~~5.ssIon fir-

### HonorableGlennCapps,Page5 .

ingthemaximumspeed13.1&t uponpertIouXarmotions OSthe StateRi~hwaysat35

### milesperhour.
Yoursverytruly ATTO~GEEVSI1ALOF TEXAS

ATTOXWEY

G- C'STEbi

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