The Honorable Price Daniel, Jr. 

Speaker, House of Representatives 

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 to the statutory authority 

of the Texas Highway Commission to administratively alter speed limits on 

Texas highways which had been set by the Legislature. At the time of your 

request the Highway Department had taken no formal action. Later, on 

December 4th the Highway Department did adopt a Minute Order providing 

as follows: 

“WHEREAS, the President of the United States has 

declared that a crisis exists as a result of an energy 

shortage; and 

“WHEREAS, he has called upon the Governors of the 

States to reduce the maximum speed limits of motor 

vehicles in order to conserve fuel; and 

‘WHEREAS, he has asked for the cooperation of the 

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

“WHEREAS, the people of Texas have responded to 

the challenge of the President and the Governor, and 

by voluntary compliance have reduced the eighty-five 

percentile maximum speed; and 

“WHEREAS, safety requires that a reduction of the 

maximum speed limit be had to more closely conform 

to the speeds actually in use by the majority of Texans; 

and 

“WHEREAS, the Governor of Texas has requested the 

State Highway Commission to determine under applicable 

law whether, under these circumstances, the maximum 

speed limit ought to be reduced; 

“NOW, THEREFORE, the State Highway Commission 

finds as follows: 

“1. Its engineering and traffic investigation 

reveals that the majority of drivers in Texas 

are driving at substantially lower speeds as a 

result of the 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 55 miles 

per hour. 

p. 804 
The 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 on all Highway Routes 

in the State, both within and outside of the limits of incorporated cities, to be 55 miles per hour. 

“The provisions of this Minute Order amend the provisions 

of all 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 of it no longer being necessary or 

desirable. 

“BE IT FURTHER ORDERED by the 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 to adopt the above Minute Order No. 68228. 

The Texas statutes concerning speed limits are found in Article 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 a vehicle on a highway at 

a speed greater than is reasonable and prudent under 

the conditions and having regard to the actual and potential hazards then existing. In every event speed shall 

be so controlled as may be necessary to avoid colliding 

with any person, vehicle or other conveyance on or 

entering the highway in compliance with legal requirements and the duty of all persons to use due care.” 

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

The validity of a similar provision in the Penal Code was upheld in 

Eaves v. State of Texas, 353 S. SV. 2d 231 (Tex. Crim. 1961) and the validity 

of the specific provision has been upheld, against attack that it was too vague, 

by Attorney General Opinion M-495 (1969) relying upon the Eaves decision. 

Section 166(a) provides.in part: 

“No person shall drive a vehicle on a highway 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) of this Section, the limits specified in 

this Section or established as hereinafter authorized 

shall be lawful; but any speed in excess of the 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 

on any State or Federal numbered highway 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 

on any highway outside any urban district; . . . . ” 

Section 167(a), (amended by Acts 1971, 62nd Leg., p. 767, ch. 83), 

provides: 

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

“Whenever the State Highway Commission shall 

determine upon the basis of an 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 of the highway system, taking into consideration the width and 

condition of the 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 by wet or inclement weather require it, by proper order of the Commission entered on its minutes, which limits, when appropriate signs giving notice thereof are erected, shall be 

effective a,t such intersection or other place or part of 

the highway system 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 rules established in Paragraph (b) of Section 

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 of Subdivision 5 of Subsection (a) of Section 166 shall 

not be increased. 

“By wet or inclement weather is meant conditions 

of the pavement or roadway caused by precipitation, 

water, ice or snow which make driving thereon unsafe 

and hazardous. ” 

Although there were similar provisions in s 8 of Art. 827a, V. T.P. C., 

5 167 of Art. 6701d, authorizing the Commission to make determinations that 

speed limits provided by 5 166 as prima facie reasonable was greater or less 

than a reasonable or safe speed under conditions found to exist, was first 

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

enacted in 1963 and was the subject of two opinions of this 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. . . . In the quoted portions of the proposed 

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. 

” . . . . 

“In view of the foregoing, it is the opinion of this 

office that the delegation of authority to the State Highway Commission, contained in House Bill 50, is sufficiently limited and contains sufficiently explicit instructions, so as not to constitute an unlawful delegation of 

legislative power. ” 

Attorney General Opinion C-99 (1963) was rendered after the adoption 

of the bill and concluded that it gave authority to the State Highway Commission 

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

The question therefore which we must answer is whether the quoted language of § 167 is sufficient to confer upon the Commission authority to issue an 

order lowering the prima facie reasonable speed limit state-wide, or whether, 

to the contrary, its authority is limited to specific localities. 

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

Were this a question of first impression, we would be inclined to construe 

§ 167 to 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 of the Minute 

Order on December 4. 

The Texas Highway Commission is a creature of the 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 

of the Legislature in the adoption of Article XIX of Article 6701(d). One of the 

cardinal rules of determining legislative intent is that, where the Legislature 

re-enacts a statute in substantially the same language as a pre-existing statute 

that has been interpreted either by acourt of last resort or by executive order, 

it is presumed to have intended that the new enactment should receive the same 

construction as the old one. See 53 Tex. Jur. 2d,Statutes, $192, pp. 294 - 298 

and cases cited. 

Thus, for instance, in Humble oil & Refining Co. v. Calvert, 414 S. 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 of Article 827a, Vernon’s Texas Penal Code, the predecessor 

of Article 6701d, $ 5 166 and 167, after specifying speed limits for the state highways, provided: 

“The State Highway Commission shall have the 

power and authority upon the basis of an engineering 

and traffic investigation to determine and fix the maximum, reasonable and prudent speed at any road or highway intersections, railway grade crossings, curves, 

hills, or upon any other part of a highway, less than 

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

the maximum hereinbefore fixed by this Act, taking 

into consideration the width and condition of the 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 

by proper 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 of the Commission at such intersection or 

portion of the highway. ” (Emphasis added) 

The language of 5 167a of Article 6701d, V. T. C. S., comparable to that 

quoted above from 5 8 of Article 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 to exist at any intersection 

or other place or upon any part of the 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 

of the Legislature in enacting § 167 and its various amendments was to give to 

the Highway Commission the same authority to alter speed tirnirs as was grantee 

by $ 8 of Article 827a of the Penal Code. 

On September 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 be reduced to 35 --iles per hour. 

One of our most honored and respected predecessors, Attorney Generai 

Gerald C. Mann, issued his Opinion No.. O-4996 dated March 4, 1943, on the 

validity of that order and concluded with the statement: 

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

“From a careful reading of the above statutory 

provision granting the Highway Commission the authority to determine what are maximum reasonable and 

prudent speeds upon certain sections and points of the 

Texas highways, we are impressed with the belief that 

the wording of the statute itself does not show an intentinn to give the Highway Commission authority to establish a new speed limit of general application on all the 

many thousands of miles of State Highways, but rather 

indicates a contrary intent. The obvious intent of the 

grant is to empower the Commission to do what 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 of highway 

which, because of predetermined local--not general-- 

conditions, might present extraordinary hazards tog 

traffic safety. ” 

Despite his recognition of the “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 a general 

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. 19879 dated March 8, 1943, the Commission acceded 

to&e Attorney General’s opinion and rescinded its prior order of September 

22, 1942. 

Despite the fact that 30 years have intervened and the Legislature has 

had many occasions to revise the language to give to the State Highway Commission authority to adjust speed limits state-wide when conditions require 

it, the Legislature has not done so. To the contrary, it has added $167 to 

Article 6701d by Acts 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 to conclude that the Legislature agreed 

with the interpretation placed upnn the statutory language by Attorney General 

Mann and did not intend it to have the broader meaning which would be necessary to uphold the Commission’s order of December 4, 1973. It is our opinion, 

therefore, that Minute Order No. 68228 was in excess of the 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 

p. 812