KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

The Honorable Myra Crownover 

Chair, Committee on Public Health 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Dear Representative Crownover: 

May 11, 2015 

Opinion No. KP-0017 

Re: Construction of article III, section 49-k 

of the Texas Constitution, related to the 

Texas Mobility Fund, in light of the 2001 

ballot language proposing the constitutional 

amendment (RQ-1229-GA) 

Your predecessor asked about a 2001 ballot proposition concerning the creation of the 

Texas Mobility Fund ("Mobility Fund"). 1 The proposition, Proposition 15, resulted in the addition 

of article III, section 49-k to the Texas Constitution. See Tex. S.J. Res. 16, § 1, 77th Leg., R.S., 

2001 Tex. Gen. Laws 6694, 6694-96. Article III, section 49-k created the Mobility Fund, which 

is used to provide a method of financing state highways. TEX. CONST. art. III, § 49-k(b ). Article 

III, section 49-k also authorized the issuing and selling of state obligations that are secured by all 

or part of the money in the Mobility Fund. Id. art. III, § 49-k(d). In addition, Proposition 15 

resulted in the amendment of article III, section 52-b to repeal the requirement to use toll revenue 

to repay certain expenditures of the State Highway Fund ("Highway Fund"). 2 See Tex. S.J. Res. 

16, § 2, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694, 6696. 

Your predecessor stated that the Texas Department of Transportation ("TxDOT") "now 

routinely uses [revenue from] gas taxes to construct toll projects, as well as to pledge it for 

repayment of bonds if toll revenues fall short." Request Letter at 3. Your predecessor's request 

1

See Letter from Honorable Lois W. Kolkhorst, Chair, House Comm. on Pub. Health, to Honorable Greg 

Abbott, Tex. Att'y Gen. at 1 (Nov. 6, 2014), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs 

("Request Letter"); see also Email from Honorable Myra Crownover, Chair, House Comm. on Pub. Health, to Op. 

Comm. (Feb. 13, 2015) (requesting this office to continue with the opinion request submitted by the former chair of 

the House Committee on Public Health, Honorable Lois Kolkhorst) (on file with Op. Comm.). 

2

The Legislature enacted two bills in conjunction with Proposition 15: Senate Bill 4 provided for the 

operation of the Mobility Fund and the issuance of highway bonds, and Senate Bill 342 provided for state 

participation in highway toll projects. See Act of May 24, 2001, 77th Leg., R.S., ch. 1213, 2001 Tex. Gen. Laws 

2775, 2775-78, Act of May 27, 2001, 77th Leg., R.S., ch. 1237, 2001 Tex. Gen. Laws 2910, 2910- 15. 
The Honorable Myra Crownover - Page 2 (KP-0017) 

letter cites to several articles describing current toll projects and asserts that the projects are funded 

by gas tax revenue. Id. at 3 nn.5-8. The request letter also asserts that the ballot language for 

Proposition 15 "makes no direct connection for the authorization of the State Highway Fund-i.e., 

gas tax and vehicle registration fees-to be used for toll projects." Id. at 3. In this context, your 

predecessor asked about the sufficiency of the ballot language of Proposition 15.3 

The standard by which to determine the sufficiency of constitutional ballot language is 

whether the language "identifies the amendment, showing its character and scope, that is, its intent, 

import, subject matter, or theme." Rooms with a View, Inc. v. Private Nat'/ Mortg. Ass'n, Inc., 7 

S.W.3d 840, 850 (Tex. App.-Austin 1999, pet. denied). The Texas Supreme Court has said that 

"[t]he Constitution requires that certain publicity shall be given a proposed amendment prior to an 

election. This is done to identify the amendment and to show its character and purposes, so that 

the voters will be familiar with the amendment and its purposes when they cast their ballots." R.R. 

Comm'n v. Sterling Oil & Ref Co., 218 S.W.2d 415, 418 (Tex. 1949). Moreover, the supreme 

court has acknowledged the impracticability of printing an entire amendment on a ballot: 

Exactitude is not required because it would often "be impracticable to print an entire amendment 

on a ballot." Id. Thus, in setting the sufficiency standard, Texas courts have consistently 

determined that it "is not necessary to include all relevant details or to print the entire proposed 

amendment on the ballot." Rooms with a View, 7 S.W.3d at 850; see also Sterling Oil, 218 S.W.2d 

at 418 (stating that ballot language must show an amendment's "character and purposes"); accord 

Hardy, 849 S.W.2d at 358. And as voters are presumed to be familiar with the contents of a 

measure on a ballot, "[a] ballot adequately describes a proposed amendment if it gives fair notice 

to the voter of average intelligence by directing him to the amendment so that he can discern its 

identity and distinguish it from other propositions on the ballot." Brown v. Blum, 9 S.W.3d 840, 

848 (Tex. App.-Houston [14th. Dist.] 1999, pet. dism'd w.o.j.) (quotation marks omitted); accord 

Rooms with a View, 7 S.W.3d at 850; see also Hill v. Evans, 414 S.W.2d 684, 692 (Tex. Civ. 

App.-Austin 1967, writ refd n.r.e.). A determination about the sufficiency of ballot language is 

judged against the "facts at the time the legislature adopted the resolution proposing the 

amendment." Hill, 414 S.W.2d at 687. 

The November 2001 ballot contained the following language as Proposition 15: 

The constitutional amendment creating the Texas Mobility Fund and 

authorizing grants and loans of money and issuance of obligations 

for financing the construction, reconstruction, acquisition, 

operation, and expansion of state highways, turnpikes, toll roads, 

toll bridges, and other mobility projects. 

3Y our predecessor did not expressly ask and we do not address whether any particular revenues are being 

used improperly to fund current TxDOT toll projects. Such a question would require the resolution of myriad fact 

questions that are outside the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-1033 (2013) 

at I (noting that fact questions cannot be resolved in the opinion process). 
The Honorable Myra Crownover - Page 3 (KP-0017) 

Tex. S.J. Res. 16, § 3, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694, 6696. The amendment 

described by Proposition 15 created the Mobility Fund and moved the state away from the thencurrent "pay-as-you-go" system to one of using state funds to secure long-term obligations to 

finance Texas state highway projects.4 Proposition 15 described both of these changes and 

expressly connected the state's new financing obligations to "state highways, turnpikes, toll roads, 

toll bridges, and other mobility projects." Id. 

Importantly, the preelection publicity for the November 2001 election included at least two 

State government publications designed to educate the voters about the full extent of Proposition 

15. The Texas Legislative Council and the House Research Organization published 

comprehensive guides analyzing all of the proposed amendments, including arguments for and 

against each proposed amendment. 5 These publicly available guides include a complete discussion 

about Proposition 15's proposed funding mechanism as well as its limitations. TLC Report at 

121-24; HRO Report at 44-48. Both of these publications expressly note the changes and removal 

oflimitations on the use of the Highway Fund. See TLC Report at 122 (noting that the amendment 

would remove existing limitations on use of state money for toll road purposes); HRO Report at 

44-45 (noting limitation on dedicated fund sources to Highway Fund as well as the repeal of 

requirement that Highway Fund be repaid from toll and other turnpike revenue). A court 

addressing the question could be expected to presume the preelection publications educated the 

public so that a voter understood the full impact of Proposition 15, including any impact on the 

Highway Fund. See Brown, 9 S.W.3d at 848. Furthermore, as Proposition 15 was the only one of 

the nineteen proposed amendments on the November 2001 ballot with transportation financing as 

its subject, the same court could be expected to conclude that the ballot language enabled a voter 

to discern Proposition 15 's identity and distinguish it from the other propositions on the ballot. 

See id. That Proposition 15 did not include or refer to every minor detail of the proposed 

amendment does not impact the validity of the proposition presented to the voters. See Rooms 

with a View, Inc., 7 S.W.3d at 850. Accordingly, it is likely that a court would conclude that the 

language used to describe Proposition 15 on the ballot, adding article III, section 49-k to the Texas 

Constitution, sufficiently expressed the scope and character of the proposed amendment and set 

its subject matter apart from the other amendments to satisfy constitutional standards.6 

4See TEX. LEGISLATIVE COUNCIL, ANALYSIS OF PROPOSED CONSTITUTIONAL AMENDMENTS, NOVEMBER 6, 

2001 ELECTION at 122 (Sept. 2001) (discussing background) ("TLC Report"). 

5

See id; HOUSE RESEARCH ORG., Focus REPORT No. 77-12, CONSTITUTIONAL AMENDMENTS PROPOSED 

FOR NOVEMBER 2001 BALLOT (Aug. 13, 2001) ("HRO Report"). 

6Typically, courts do not look to ballot language to construe an amendment and instead look to the language 

of the amendment to determine its meaning. See Sterling Oil, 218 S.W.2d at 418 (recognizing that ballot language 

does not serve to limit the "natural meaning of the language of the amendment itself'); see also In re Al/cat Claims 

Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011) (recognizing that courts try to ascertain and give effect to the plain 

language of the framers and voters of the constitution). 
The Honorable Myra Crownover - Page 4 (KP-0017) 

SUMMARY 

A court would likely conclude that the language used to 

describe Proposition 15 on the 2001 November ballot, adding article 

III, section 49-k to the Texas Constitution, sufficiently expressed the 

scope and character of the proposed amendment and set its subject 

matter apart from the other amendments to satisfy constitutional 

standards. 

CHARLES E. ROY 

First Assistant Attorney General 

BRANTLEY STARR 

Deputy Attorney General for Legal Counsel 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

CHARLOTTE M. HARPER 

Very truly yours, 

~?~ KEN PAXTON 

Attorney General of Texas 

Assistant Attorney General, Opinion Committee