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 of State Highway Department to make expenditures requested to 

qualify for projects under 

23 U.S. C. sec. 405. 

Dear Mr. DeBerry: 

You have requested our opinion as to whether the Highway 

Department can expend State highway funds pursuant to article 6674d-1, 

V. T. C. S., in order to qualify for and secure federal funds pursuant to 

23 U.S. C. sec. 405. You advise that the roadways to be covered are 

basically city streets and county roads which are not part of the 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 of all public roads or segments 

thereof not on a Federal-aid system needing improvements to correct safety hazards selected or designated 

by each State subject to the approval of the 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 and hazards analysis 

systems . . . . 

. . . . 

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

(d) For the purposes of this section, the term 

“public road” means any road under the jurisdiction 

of and maintained by a public authority and open to 

public travel and which is not on a Federal-aid 

system. 

Article 6674d-1, V. T. C. S., provides: 

From and after the effective date of this Act, 

all moneys appropriated by the Congress of the 

United States and allocated by the Secretary of 

Agriculture of the United States to the State Highway Department for expenditure on roads not on the 

system of State Highways, may be expended by and 

through the State Highway Department in conjunction 

with the Bureau of Public Roads, for the improvement 

of such roads and said Federal Funds may be matched, 

or supplemented by such amounts of State funds as may 

be necessary for proper construction and prosecution 

of the work . State funds shall not be used exclusively 

for the construction of roads not on the System of 

State Highways, the expenditure of State funds on said 

roads being limited to cost of construction and 

engineering, overhead and other costs on which the application of Federal 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 of the 

Department only upon a part of the system of State 

Highways. (Emphasis added) 

Article 6674d-1 repealed any statute in conflict to the extent of such 

conflict. Acts 1939, 46th Leg., p. 579. Since article 6672 was passed in 

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

1917, it has therefore been modified by 6674d-1 and no longer prohibits 

the use of state funds to match or supplement federal grants for roads 

not on the system of State highways. 

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

Subject to legislative appropriation, allocation and direction, all net revenues remaining 

after payment of all refunds allowed by law and 

expenses of collection derived from motor vehicle 

registration fees, and all taxes, except gross 

productions and ad valorem taxes, on motor fuels 

and lubricants used to propel motor vehicles over 

public roadways, shall be used for the sole purpose 

of acquiring 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 of traffic 

and safety on such roads: and for the payment of the 

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 to January 2, 1945, 

for payment out of the County and Road District Highway 

Fund under existing law; provided, however, that onefourth (l/4) of such 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 

on January 1, 1945. Nothing contained herein shall be 

construed as authorizing the pledging of the 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 of State funds pursuant to 

p. 2370 
The 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 of the 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 

-k--04/ 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH. Chairman 

Opinion Committee 

p. 2371