February 13, 1975

The Honorable B.L. DeBerry State Highway Engineer Texas Highway Department 11th& Brazes Austin, Texas 78701 Opinion No. H- 525 Re: Authority ofState Highway Department to make expenditures requested to qualify for projects under 

### 23U.S. C. sec. 405. Dear Mr. DeBerry:

You have requested **our** opinion as towhether the Highway Department can expend State highway funds pursuant toarticle 6674d-1, V. T. C.S., inorder toqualify for and **secure** federal funds pursuant to 

### 23U.S. C. sec. 405. You advise that the roadways tobe covered are basically city streets and county roads which are not part ofthe state highway system of Texas.

The peeltinent provisions of 23 U.S. C. sec. 405, are as follows:

(a) The Federal-aid safer roads demonstration program shall consist ofall public roads or segments thereof not onaFederal-aid system needing improvements to correct safety hazards selected or designated by each State subject to the approval ofthe Secretary. (b)
. . . including projects to improve highway marking and signing, to eliminate roadside obstacles, to eliminate hazards at railroad-highway grade crossings and to correct high-hazard locations, identified by accident reporting, traffic records andhazards analysis systems . . . .

. . . .

p. 2368The Honorable B. L. DeBerry page 2 (H-525)

(d)For the purposes ofthis section, the term

“public road” means any road under thejurisdiction ofand maintained byapublic authority and open to public travel andwhich is not onaFederal-aid system. Article 6674d-1, V. T.C.S., provides:

From and after the effective date ofthis Act, all moneys appropriated by the Congress ofthe United States and allocated by the Secretary of Agriculture ofthe United States to the State Highway Department for expenditure on roads not onthe system ofState Highways, may be expended byand through the State Highway Department in conjunction with the Bureau ofPublic Roads, for the improvement ofsuch roads and said Federal Funds may be matched, or supplemented by such amounts ofState funds as may benecessary for proper construction and prosecution ofthe work
. State funds shall not be used exclusively for the construction of roads not on theSystem of State Highways, the expenditure ofState funds on said roads being limited to cost of construction and engineering, overhead and other costs onwhich the application ofFederal Funds is prohibited or impractical. (Emphasis added) Article 6672, V. T. C.S., provides:

Any funds for public road construction in this State appropriated by the Federal Government shall be expended by and under the supervision ofthe Department only upon a part ofthe system ofState Highways. (Emphasis added) Article 6674d-1 repealed any statute in conflict tothe extent of such conflict. Acts 1939, 46th Leg., p.579. Since article 6672 was passed in

p. 2369The Honorable B. L. DeBerry page 3 (H-525)

1917, ithas therefore been modified by 6674d-1 and nolonger prohibits the use of state funds to match or supplement federal grants for roads not onthe system ofState highways.

Article 8, section 7a, of the Texas Constitution states:

Subject to legislative appropriation, allocation and direction, all net **revenues** remaining after payment ofall refunds allowed bylaw and expenses of collection derived from motor vehicle registration fees, and all taxes, except gross productions and ad valorem taxes, onmotor fuels and lubricants used to propel motor vehicles over public roadways, shall be used for the sole purpose ofacquiring rights-of-way, constructing, maintaining, and policing such public roadways, and for the administration of such laws as may be prescribed by the Legislature pertaining to the supervision oftraffic and safety on such roads: and for the payment ofthe principal and interest on county and road district bonds or warrants voted or issued prior to Janua,ry 2, 1939, and declar’ed eligible prior toJanuary 2, 1945, for payment out ofthe County and Road District Highway Fund under existing law; provided, however, that onefourth (l/4) ofsuch net revenue from the motor fuel tax shall be allocated to the Available School Fund; and, provided, however, that the net revenue derived by counties from motor vehicle registration fees shall never be less than the maximum amounts allowed to be retained by each County and the percentage allowed to be retained by each County under the laws in effect onJanuary 1, 1945. Nothing contained herein shall be construed as authorizing the pledging ofthe State’s credit for any purpose. (Emphasis added) This section requires certain revenues to be expended only for

“public roadways. ‘I Since 23 U.S.C. sec. 405 applies only to “public roads or segments thereof, ” expenditures ofState funds pursuant to

p. 2370The Honorable B.L. DeBerry page 4 (H-525)

article 6674d-1 for the purpose of supplementing these federal funds are consistent with article 8, section 7a ofthe Texas Constitution. SUMMARY Article 6674d-1 provides the State Highway Department authority to expend State funds to supplement or match federal funds received pursuant to 23 U.S. C. sec. 405. Very truly **yours,**

OHN L. HILL

General of Texas 

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DAVID M. KENDALL, First Assistant

C. ROBERT HEATH. Chairman Opinion Committee

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