The Honorable Price Daniel, Jr. Speaker, House ofRepresentatives State Capitol Building Austin, Texas

Dear Speaker Daniel: Opinion No. H- 175 Re: Validity of order of Texas Highway Commission lowering prima facie reasonable safe speed On December 4, you requested our opinion as tothe statutory authority ofthe Texas Highway Commission to administratively alter speed limits on Texas highways which had been set by the Legislature. At the time ofyour request the Highway Department had taken noformal action. Later, on December 4th the Highway Department did adopt aMinute Order providing as follows: “WHEREAS, the President ofthe United States has

declared that acrisis exists as a result ofan energy shortage; and “WHEREAS, he has called upon the Governors ofthe States to reduce the maximum speed limits of motor vehicles in order toconserve fuel; and

‘WHEREAS, he has asked for the cooperation ofthe people by voluntarily reducing speed in an effort to conserve fuel; and “WHEREAS, the Governor of Texas has joined the President in urging the people of Texas to conserve fuel by driving slower, and believes a significant amount of fuel can be saved as a result; and

p. 803The Honorable Price Daniel, Jr., page 2(H-175)

“WHEREAS, the people of Texas have responded to the challenge of thePresident and the Governor, and byvoluntary compliance have reduced the eighty-five percentile maximum speed; and “WHEREAS, safety requires that a reduction ofthe maximum speed limit behad tomore closely conform to the speeds actually in use bythe majority of Texans; and “WHEREAS, the Governor ofTexas has requested the State Highway Commission todetermine under applicable law whether, under these circumstances, the maximum speed limit ought tobe reduced;

“NOW, THEREFORE, the State Highway Commission finds as follows:

“1. Its engineering and traffic investigation reveals that the majority ofdrivers in Texas are driving at substantially lower speeds as a result ofthe recent request by the President and by the Governor that they do so, to conserve fuel in the crisis situation that now exists.

‘2. Such engineering and traffic investigation reveals, therefore, that the present prima facie maximum speed limit is greater than that which is reasonable and safe under the aforementioned conditions.

“3. That the State Highway Commission finds, based upon such investigation, that a reasonable and safe prima facie maximum speed limit on all Highway Routes within the State is 55miles per hour.

p. 804The Honorable Price Daniel, Jr., page 3(H-175)

“THEREFORE, the State Highway Commission hereby declares and fixes the maximum reasonable and safe prima facie maximum speed limits onall Highway Routes in the State, both within and outside of the limits ofincorporated cities, to be 55 miles per hour.

“The provisions of this Minute Order amend the provisions ofall previous Minute Orders which establish limits higher than those specified above to the extent they conflict with this Minute Order, until such time as this Minute Order is canceled for reasons ofit nolonger being necessary or desirable.

“BE IT FURTHER ORDERED bythe State Highway Commission that the State Highway Engineer proceed in the most feasible and economical manner with assembling material and manufacturing signs to implement this change, and then proceed to erect appropriate signs showing the maximum speed limits established herein. ” We therefore treat your question as asking specifically the authority of the Department toadopt the above Minute Order No. 68228. The Texas statutes concerning speed limits are found inArticle XIX of Article 6701d, Vernon’s Texas Civil Statutes, most recently amended in 1971. (The following references are to sections of that Article.) Section 166(b) provides:

“No person shall drive avehicle onahighway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Inevery event speed shall be so controlled as may be necessary toavoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty ofall persons to use due care.”

p. 805The Honorable Price Daniel, Jr., page 4 (H-175)

The validity ofa similar provision in the Penal Code was upheld in Eaves v. State ofTexas, 353 S.SV. 2d 231(Tex. Crim. 1961)and the validity ofthe specific provision has been upheld, against attack that itwas too vague, byAttorney General Opinion M-495 (1969) relying upon the Eaves decision. Section 166(a) provides.in part:

“No person shall drive avehicle onahighway at a speed greater than is reasonable and prudent under the circumstances then existing. Except when a special hazard exists that requires lower speeds for compliance with paragraph (b) ofthis Section, the limits specified in this Section or established as hereinafter authorized shall be lawful; butany speed in excess ofthe limits specified in this Section or established as hereinafter authorized shall be prima ticie evidence that the speed is not reasonable or prudent and that it is unlawful:

“1. Thirty (30) miles per hour in any urban district;

“2. Seventy (70) miles per hour during the daytime and sixty-five (65) miles per hour during the nighttime for any passenger car r motorcycle, or motor-driven cycle onany State or Federal numberedhighway outside any urban district, including farm-and/or ranch-to-market roads, and sixty (60) miles per hour during the daytime and fiftyfive (55) miles per hour during the nighttime for any passenger car, motorcycle, or motor-driven cycle on all other highways outside any urban district;

“3. Sixty (60) miles per hour for all other vehicles onany highway outside any urban district;

. . . .” Section 167(a), (amended byActs 1971, 62nd Leg., p. 767, ch. 83), provides:

p. 806The Honorable Price Daniel, Jr., page 5(H-175)

“Whenever theState Highway Commission shall determine upon the basis ofan engineering and traffic investigation that any prima facie maximum speed limit hereinbefore 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 ofthe highway system, taking into consideration the width and condition ofthe pavement and other circumstances on such portion of said highway as well as the usual traffic thereon, said State Highway Commission may determine and declare a reasonable and safe prima facie maximum speed limit thereat or thereon, and another reasonable and safe speed when conditions caused bywet or inclement weather require it, by proper order ofthe Commission entered on its minutes, which limits, when appropriate signs giving notice thereof are erected, shall be effective a,tsuch intersection or other place or part of the highway system atall times or during hours ofdaylight or darkness, or at such other times as may be determined; provided, however, that said State Highway Commission shall nothave the authority to modify or alter the rules established in Paragraph (b) ofSection 166, nor to establish a speed limit higher than seventy (70) miles per hour; and provided further that the speed limits for vehicles described in Paragraphs a, b, and c ofSubdivision 5ofSubsection (a) ofSection 166shall not be increased.

“By wet or inclement weather is meant conditions ofthe pavement or roadway caused byprecipitation, water, ice or snow which make driving thereon unsafe and hazardous. ” Although there were similar provisions in s8ofArt. 827a, V.T.P. C., 5167ofArt. 6701d, authorizing the Commission to make determinations that speed limits provided by 5166as prima facie reasonable was greater or less than a reasonable or safe speed under conditions found to exist, was first

p. 807The Honorable Price Daniel, Jr., page 6 (H-175)

enacted in 1963and was the subject of two opinions ofthis office issued that year. Attorney General Opinion C-11 (1963) was addressed to the constitutionality **d** the proposed enactment. Referring to the rule that the Legislature may delegate powers if it has prescribed sufficient standards to guide the discretion conferred, it was concluded that:

‘I.

. . . Inthe quoted portions ofthe proposed Act, the Legislature has given clear and explicit instructions to the State Highway Commission as to the criteria to be applied in determining areasonable and safe maximum prima facie speed limit. In Subsection (b) ofSection 167, the Commission is even directed to use aspecific technique, already established and in use, as ameans ofarriving at the said reasonable and safe maximum speed.

”

. . . .

“In view ofthe foregoing, it is the opinion ofthis office that the delegation ofauthority tothe State Highway Commission, contained in House Bill 50, is sufficiently limited and contains sufficiently explicit instructions, so as not toconstitute an unlawful delegation of legislative power. ” Attorney General Opinion C-99 (1963) was rendered after the adoption ofthe bill and concluded that it gave authority tothe State Highway Commission

“to alter maximum speed limits and establish minimum speed limits on limitedaccess or controlled-access highways within or without the limits ofan incorporated city, town or village , . . .”

The question therefore which we must answer is whether the quoted language of §167is sufficient toconfer upon the Commission authority toissue an order lowering the prima facie reasonable speed limit state-wide, or whether, to the contrary, its authority is limited to specific localities.

p. 808The Honorable Price Daniel, Jr., page 7 (H-175)

Were this aquestion offirst impression, we would be inclined to construe §167to authorize the Commission, where it found the necessary facts to exist, to issue a state-wide change in the prima facie speed limit. We are certainly sympathetic to the laudable purpose which prompted the adoption ofthe Minute Order on December 4. The Texas Highway Commission is a creature ofthe Legislature. Chapter 1. Title 11~6, Vernon’s Texas Civil Statutes. Its powers are those conferred upon it by the Legislature. In determining what its powers are over the speed of vehicles upon the Highway we are necessarily required to determine the intent ofthe Legislature in the adoption ofArticle XIX ofArticle 6701(d). One ofthe cardinal rules ofdetermining legislative intent is that, where the Legislature re-enacts a statute in substantially the same language as apre-existing statute that has been interpreted either byacourt oflast resort or by executive order, it is presumed tohave intended that the new enactment should receive the same construction as the old one. See 53Tex. Jur. 2d,Statutes, $192, pp. 294 - 298 and cases cited. Thus, for instance, in Humble oil &Refining Co. v. Calvert, 414S.W.2d 172(Tex. 1967), the Supreme Court said:

“A statute of doubtful meaning that has been construed by the proper administrative officers, when se-enacted without any substantial change in verbiage, will ordinarily receive the same construction. ”
In 1943, $8 ofArticle 827a, Vernon’s Texas Penal Code, the predecessor ofArticle 6701d, $5166and 167, after specifying speed limits for the state highways, provided:

“The State Highway Commission shall have the

power and authority upon the basis ofan engineering and traffic investigation todetermine and fix the maximum, reasonable and prudent speed at any road or highway intersections, railway grade crossings, curves, hills, or upon any other part ofahighway, less than

p. 809The Honorable Price Daniel, Jr., page 8 (H-175)

the maximum hereinbefore fixed bythis Act, taking into consideration the width and condition ofthe pavement and other circumstances on such portion of said highway as well as the usual traffic thereon. That whenever the State Highway Commission shall determine and fix the rate of speed at any said point upon any highway at a less rate of speed than the maximum hereinbefore set forth in this Act and shall declare the maximum, reasonable and prudent speed limit thereat byproper order of the Commission entered on its minutes, such rate of speed shall become effective and operative at said point on said highways when appropriate signs giving notice thereof are erected under the order ofthe Commission at such intersection or portion ofthe highway. ” (Emphasis added) The language of 5167aofArticle 6701d, V.T. C.S., comparable tothat quoted above from 58ofArticle 827a, V. T.P. C., is: “Whenever the State Highway Commission shall determine upon the basis of an engineering and traffic investigation.
. . under the conditions found toexist at any intersection or other place or upon any part ofthe highway system, taking into consideration the width and conditibn of the pavement and other circumstances on such portion of said highway as well as the usual traffic thereon.

. e .” It is our opinion that the two provisions are substantially the same and rhat the intent ofthe Legislature in enacting §167and its various amendments was to give to the Highway Commission the same authority toalter speed tirnirs as was grantee by $8ofArticle 827a ofthe Penal Code. OnSeptember 22, 1942, the State Highway Deparrmezt aiop:ed itsXn=e Gw No. 19656, reciting an engineering and traffic investigation ar.2 finding that the maximum reasonable and prudent speed of motor vehicies 011& highways comprising the state highway system should bereduced to 35--iles per hour. One ofour most honored and respected predecessors, Attorney Generai Gerald C. Mann, issued his Opinion No.. O-4996 dated March 4, 1943, on the validity ofthat order and concluded with the statement:

p. 810The Honorable Price Daniel, Jr., page 9 (H-175)

“From a careful reading ofthe above statutory provision granting the Highway Commission the authority todetermine what are maximum reasonable and prudent speeds upon certain sections and points ofthe Texas highways, we are impressed with the belief that the wording ofthe statute itself does not show anintentinn togive the Highway Commission authority to establish anew speed limit ofgeneral application onall the many thousands ofmiles ofState Highways, but rather indicates a contrary intent. The obvious intent ofthe grant is to empower the Commission todowhat the Legislature itself could not practicably do: to determine and fix maximum safe speed limits (below the general maximum limits) at particular ‘road or highway intersections, railway grade crossings, curves, hills’ or upon any other particular sectinn ofhighway which, because ofpredetermined local--not general-- conditions, might present extraordinary hazards tog traffic safety. ” Despite his recognition ofthe “patriotic motives which impelled its passage!‘, nevertheless, Attorney General Mann found that the order “goes beyond the authority granted, and in effect, attempts to repeal ageneral penal law passed by the Legislature, and substitute in its place an order passed by **an** administrative board”, and thus the order was invalid. By its Minute Order No. 19879dated March 8, 1943, the Commission acceded to&e Attorney General’s opinion and rescinded its prior order ofSeptember 22, 1942. Despite the fact that 30years have intervened and the Legislature has had many occasions to revise the language to give tothe State Highway Commission authority toadjust speed limits state-wide when conditions require it, the Legislature has not done so. To the contrary, it has added $167to Article 6701d byActs 1963, 58th Leg., p. 455, ch. 161,and later amended it in 1971.

p. 811. .

The Honorable Price Daniel, Jr., page 10(H-175)

We therefore feel compelled toconclude that the Legislature agreed with the interpretation placed upnn the statutory language byAttorney General Mann and did not intend it tohave the broader meaning which would be necessary touphold the Commission’s order ofDecember 4, 1973. It is our opinion, therefore, that Minute Order No. 68228 was in excess ofthe State Highway Department’s authority and is therefore invalid. SUMMARY Minute Order No. 68228 was in excess of the State Highway Department’s authority and is therefore invalid. Very truly yours,

APPROVED: Y

# L/w

DAVID M. KENIJALL, Chairman Opinion Committee

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