### KEN PAXTON ATTORNEY GENERAL OF TEXAS

The Honorable Myra Crownover Chair, Committee onPublic Health Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910

Dear Representative Crownover: May 11, 2015

OpinionNo

. KP-0017 Re: Construction ofarticle 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 ofthe Texas MobilityFund ("MobilityFund"). 1 Theproposition, Proposition 15, resulted inthe addition ofarticle 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 offinancing state highways. TEX. CONST. art. III, § 49-k(b). Article III, section 49-k also authorized the issuing and selling ofstate obligations that are secured by all or part ofthe money in the Mobility Fund. 

### Id. art. III, § 49-k(d). In addition, Proposition 15 resulted in the amendment ofarticle III, section 52-b to repeal the requirement to use toll revenue to repay certain expenditures ofthe 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 ofTransportation ("TxDOT") "now routinely uses [revenue from] gas taxes to construct toll projects, as well as to pledge it for repayment ofbonds iftoll 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.).
2The 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 ofMay 24, 2001, 77th Leg., R

.S., ch. 1213, 2001 Tex. Gen. Laws 2775, 2775-78, Act ofMay 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 currenttoll projects and asserts thatthe 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 "makesno direct connection for the authorization ofthe 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 ofthe ballot language ofProposition 15.3 The standard by which to determine the sufficiency ofconstitutional ballot language is whetherthe language "identifiesthe amendment, showingits characterand scope, thatis, 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 Constitutionrequires that certainpublicity shall be given aproposed amendmentprior to an election. This is done to identify the amendment and to show its character and purposes, so that the voters will be familiar withthe amendment and its purposes whenthey casttheirballots." 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 amendmentonthe ballot." Roomswith a View, 7 S.W.3d at 850; seealsoSterling 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 ifit gives fair notice to the voter ofaverage 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'dw.o.j.) (quotationmarks 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 refdn.r.e.). A determination about the sufficiency ofballot 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: Theconstitutional amendmentcreatingtheTexasMobilityFundand authorizing grants and loans ofmoney and issuance ofobligations for financing the construction, reconstruction, acquisition, operation, and expansion of state highways, turnpikes, toll roads, toll bridges, and other mobility projects.

3Your 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 ofmyriad fact questions that are outside the purview ofan 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

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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 connectedthe state'snew financing obligations to "statehighways, turnpikes, toll roads, toll bridges, and other mobility projects." Id. Importantly, the preelectionpublicityfor the November 2001 electionincluded at leasttwo State government publications designed to educate the voters about the full extent ofProposition 15. The Texas Legislative Council and the House Research Organization published comprehensive guides analyzing all ofthe proposed amendments, including arguments for and againsteachproposedamendment.5 Thesepublicly available guides include acompletediscussion about Proposition 15's proposed funding mechanism as well as its limitations. TLC Report at 121-24;HRO Report at 44-48. Bothofthese publications expresslynotethe changes and removal oflimitationsonthe use ofthe Highway Fund. 

### See TLC Report at 122 (noting that the amendment would remove existing limitations on use ofstate 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 ofProposition 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 ofthe 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 onthe ballot, adding article III, section49-kto the Texas Constitution, sufficiently expressed the scope and character ofthe 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").

5See 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 lookto ballot languageto construe an amendment and instead lookto the language ofthe 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 ofthe language ofthe 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 ofthe framers and voters ofthe constitution).The Honorable Myra Crownover

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### SUMMARY A court would likely conclude that the language used to describe Proposition 15 onthe 2001 Novemberballot, adding article III, section49-ktothe Texas Constitution, sufficientlyexpressedthe scope and character ofthe 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 ofTexas

Assistant Attorney General, Opinion Committee