Untitled Texas Attorney General Opinion ( 1973 )

The Honorable Price Daniel, Jr. Opinion No. H- 175
Speaker, House of Representatives
State Capitol Building Re: Validity of order of
Austin, Texas Texas Highway Commis-
sion lowering prima
facie reasonable safe
Dear Speaker Daniel: 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 con-
serve 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 afore-
mentioned 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 incor-
porated 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 Com-
mission 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 poten-
tial 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 require-
ments 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 fifty-
five (55) miles per hour during the nighttime for any pas-
senger 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 reason-
able or safe under the conditions found to exist at any
intersection or other place or upon any part of the high-
way 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 incle-
ment weather require it, by proper order of the Commis-
sion entered on its minutes, which limits, when appro-
priate 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 day-
light 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 stan-
dards 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 Sub-
section (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 High-
way Commission, contained in House Bill 50, is suffi-
ciently limited and contains sufficiently explicit instruc-
tions, 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 limited-
access or controlled-access highways within or without the limits of an incor-
porated city, town or village , . . . ”
The question therefore which we must answer is whether the quoted lan-
guage 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 high-
ways, 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 maxi-
mum, reasonable and prudent speed at any road or high-
way 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 pave-
ment and other circumstances on such portion of said
highway as well as the usual traffic thereon. That
whenever the State Highway Commission shall deter-
mine 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 min-
utes, such rate of speed shall become effective and
operative at said point on said highways when appro-
priate 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 considera-
tion 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 autho-
rity 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 inten-
tinn to give the Highway Commission authority to estab-
lish 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 deter-
mine and fix maximum safe speed limits (below the
general maximum limits) at particular ‘road or high-
way 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 Com-
mission 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 neces-
sary 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,
Opinion Committee
Chairman
p. 812