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*fer W88 pror5ulS on; evidently under a 

supposed &rant o ed in Seation~ 8 0r drtCode or Texas, a8 amend506, Aota or 1941, 47th 

perttaent parts 0r wh&h 

Rate ma Speed 0r vehiom3. 

unlawful. ror any person to operotor or other vehlele upon the 

(60) 

Texas at a rote or speed in exmilea an hour 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 n motor or other vehicle within the 

. _ .m. - - corporate iiats or an incorporated oity or town, 

or within or through any town 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 any highway, road, or thoroughrare not 

privately owned between 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 mean a 

hali hourbe~fore sunrise to a half'hour after sunset, and nighttime shall man at any other hour. 

. ..' 

"'Provided further that no person shall drive 

a vehiole on a highway at a speed Greater than is 

reasonable and prudent under ths oonditions then 

existing, having regard to the aatual ana potential 

hazards when approaching and crossing an lnterseotion or a railway grade orossing, when approaching 

and soing around a ourve, when approaohing a hill 

orest, when traveling upon any narrow or winding 

roadway, or when speoial 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 

auf3 oare. 

*'The State Blghway Conmission shall have the 

power and authority upon the basis of an englneering and traffia 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 a 
Xonorable Glenn Cappa, Page 3 

.I ‘, 

- ! 

h&way leas than the maximum hereinbefore rired 

by thls’Aot, taking ‘into oonslderation the width 

and condition of the pavement and other oiroumatanoes on suoh portion of said highway as well 

as the usual traffio thereon. That whenever the 

State Highway Commission shall determine and rlr 

the rate of epeed at any said point u~pon any highway at a less rate of speed than the maximum herelnberore set forth in this Aot and shall deolare the 

~maxlmum, reasonable and prudent 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. 

_ The order of ‘the State fllghway Commlselon,flxing 

the general ‘35 mile per, hour speed Uaft, was pawesed Septen+ 

ber 22, 1942, imd is as Zollower 

*An engineer& Lana traffia lnvestlgation and 

survey of the Texas Highway System 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 and other 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 

menner for auah use; that a reduction of the maximum speed or motor vehiolee using suoh highways will 

dearease the wear and tear upon road surfaoes and 

at the same time per&t the safe operation of vehieles with worn tires whlah oannot be raplaaed. 

“It 1s therefore ordered by the Coamtission upon 

the basis of such engineering, and .traffio investigatlon and survey, the t the maximum reasonable 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 35 miles 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.” 

From a 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, we are-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 a hew speed 1Fmit of general anulicetion 

on all the nany thousands of miles of State iii&ways, but 

rather Inhioates a ooatrary intent. The obvious In~tent of 

the grant Is to empower the Com.mIssIOn to 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 highway whioh, because of predeteminod ‘looal--not 

general--oondltIons, might present e.xtraordInary hazards to 

twf fro saf sty. 

But the quoted order of the Commission goes beyond 

the authority granted,,~ and in effeot, attempts to repeal a 

general penal IJ%W passed by the Legislature, md substitute 

in Its plaoe en order passed by an admInIstretIve board. 

While we reaognize the patriotio notioes whioh im- 

. 

pellod Its paseage yet It Is our opinion that ~said order of 

the State Highway 6ommIssIon, fixing the mexinua speed limit 

oh all highways oonprisInS the State Highway system at 35 

miles per hour, is in exoess of the ComiesIonrs authority 

and therefore imtilid. The Legislature la now In sooaion and 

om nake suoh changes as It deems desirable. 

ale express 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- 
Honorable Glenn Capps, Page 5 . 

ing the maximum speed 13.1&t upon pertIouXar motions OS the 

State Ri~hways at 35 miles per hour. 

Yours very truly 

ATTO~GEEVSI1ALOF TEXAS 

ATTOXWEY G- C'S TEbi 

.