Untitled Texas Attorney General Opinion ( 1957 )

AURTXN ``.TEXAR
September 10, 1957
Honorable Homer Garrison, Jr. Opinion No. w-256
Director, Texas Department of
Public Safety Re: Whether the Dallas-Fort
Austin, Texas Worth Turnpike is a
public highway within
the meaning of that term
as defined in the Uniform
Act regulating traffic on
highways and related
Dear Colonel Garrison: questions.
Your request for an opinion, dated August 29, 1957,
raises three questions, each of which concerns the applica-
bility of various traffic regulations to the Dallas-Fort Worth
Turnpike. The questions propounded are as follows:
1. Is the Dallas-Fort Worth Turnpike, which
was constructed by the Texas Turnpike Authority
pursuant to Acts of 1953, 53rd Legislature, page
96'7,Chapter 410, a public highway within the
meaning of that term as defined in the Uniform
Act regulating traffic on highways? (Article
6701d, Revised Civil Statutes).
2. Is the Dallas-Fort Worth Turnpike a public
highway within the meaning of the laws relating to
drunk driving? (See Penal Code, Article 802 and
the immediately succeeding Articles).
3. Do the speed laws of Texas apply on the
Dallas-Fort Worth Turnpike? (Penal Code, Article
827a, Section 8, Subsection 1).
The Texas Turnpike Authority was created by Acts
53rd Legislature, 1953, Chapter 410, page 967, codified as
Article 6674~ of Vernon's Civil Statutes. Tne caption of
the Act creating the Turnpike Authority recites the creating
of the Authority as a body politic and agency of the State.
Honorable Homer Garrison, Jr., Page 2, (``-256)
Section 3 of the Act constitutes the Turnpike
Authority an agency of the State of Texas and provides that
the exercise by the Authority of the powers conferred by the
Act shall be deemed and held to be an essential governmental
function of the State.
Section 5 of the Act enumerates the duties and
powers of the Authority. Among the powers enumerated is
the authority to construct, maintain, repair and operate
turnpike projects at such locations within the State as
may be determined by the Authority subject to approval as
to location by the State Highway Commission.
The Turnpike Authority is further authorized to fix,
charge and collect tolls for the use of each turnpike project,
the tolls collected to provide a fund sufficient with other
revenues, if any, to pay: (a) the cost of maintaining, re-
pairing and operating such turnpike project, and (b) the prin-
cipal of and the interest on the authorized bonded indebted-
ness of the Authority as same shall become due and payable.
Section 15 of the Act relieves the Turnpike Authority
from the obligation of paying taxes or assessments upon any
turnpike project or any property acquired or used by the Auth-
ority under the provisions,of the Act or upon the income there-
from.
We do not deem it necessary for purposes of this opin-
ion to further consider the various statutory provisions re-
lating to the organization and operation of the Authority ex-
cept as it may become necessary to make incidental reference to
same in the consideration of the specific questions propounded.
Your first question concerns the applicability of
Article 6701d, of Vernon's Civil Statutes, to vehicular traffic
operating on the Dallas-Fort Worth Turnpike. The foregoing
Article is popularly referred to as the Uniform Act Regulating
Traffic on Highways. The Dallas-Fort Worth Turnpike was con-
structed and is operated pursuant to the authority contained
in the 1953 Act, establishing the Texas Turnpike Authority.
Section 21 of Article 6701d reads as follows:
"The provisions of this Act relating to the
operation of vehicles refer exclusively to the
operation of vehicles upon highways except:
. L
_ -
Honorable Homer Garrison, Jr., Page 3 (~-2%).
"1. Where a different place is specifically
referred to in a given Section.
"2. The provisions of Articles IV and V shall
apply upon highways." (Fmphasis added).
Section 13 of said Article defines "street or high-
way" as being "The entire width between the boundary lines of
every way publicly maintained when any part thereof is open
to the use of the public for purposes of vehicular travel."
(Emphasis added)
Your second question concerns the applicability of
Article 802 of Vernon's Penal Code to vehicular traffic on
the Dallas-Fort Worth Turnpike. The offense denounced in
Article 802 is the driving and operating of a motor vehicle
upon any public road or highway in this State, or upon any
street or alley within the limits of an incorporated city,
town or village, while the operator of such vehicle is
intoxicated or under the influence of intoxicating liquor.
Your third question concerns the applicability of
Subsection 1, Section 8 of Article 827a of Vernon's Penal
Code to vehicular traffic upon said Turnpike. This provision
of the Penal Code prescribes certain prima facie speed limits
upon the highways of the State. Subsection 1 reads in part
as follows:
"No person shall drive a vehicle on a highway
at a speed greater than is reasonable and prudent
under the conditions then existing, . . .'
The answer to each of the three questions submitted,
and the applicability of each of the foregoing statutes to
traffic violations on the Dallas-Fort Worth Turnpike, hinges
upon the question of whether or not the Dallas-Fort Worth
Turnpike is a public highway within the meaning and con,tem-
plation of themutrcited. On the question of whether a
"highway" includes turnpikes and toll roads, 54 Am. Jur. 495
states:
"In its broad,,popular sense, the term 'public
highways' is considered as including turnpikes or
toll roads, and, generally speaking, in statutes
referring to public highways the term is .usedwith
that meaning. Thus, for example, turnpikes have
been held highways within the meaning of statutes
respecting . . . the power of public officials to
discontinue or alter parts of a 'public road or
.” .
- -
Honorable Homer Garrison, Jr., Page 4 (``-256).
highway' interfering with other public works, the
regulation of cattle running at large on highways,
and the speeding of automobiles on public highways."
Speaking of the Dallas-Fort Worth Turnpike and the
authority of the Texas Turnpike Authority to establish the
same, the Supreme Court of Texas in the case of Texas Turn-
pike Authority v. Shepperd, 154 Tex. 357; 279 S.W.2d 308,
said:
11 The Toll road when completed will in
effect be's part of the highway system of the State
and when the bonds are retired through the collec-
tion of tolls, the toll road, together with all
assets of the Authority will become the property of
the State of Texas as a part of the free highway
system, Section 18, and shall thereafter be maln-
tained by the State Highway Commission free of tolls,
Section 19. . . ." (Emphasis added).
The following cases from other jurisdictions sustain
the view that turnpikes and toll roads are public highways:
Dodge County Commissioners v. Chandler, 96 U.S. 205, 24 L. Ed.
6 5 Commonwealth v. Wilkinson, 33 Mass. 175, 26 Am. Dec. 654;
Southwestern Bell Tele-
$!$8EGFki ````&``m?``?~iv6d 1002; Hous~.v~ PeFsy;L.J,
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328. See also 90 C.J.S. 973 and cake?3tszhcited. '
In this connection, the case of Victor Rios Salazar
v. The State of Texas, 275 S.W.2d 113 (Crim.App.) Is highly
pertinent. The evidence in the case showed that the defendant
had been arrested, tried and convlcted on a charge of driving
and operating a motor vehicle upon a public highway while
intoxicated. Both the arrest and the offense occurred on the
American side of the International Toll Bridge extending from
Juarez, Mexico, to the City of El Paso. It was urged that the
bridge was not a public road or highway within the meaning of
the statute, Article 802, Vernon's Penal Code. In reply to
this contention the Court of Criminal Appeals said:
"The bridge was open to the use of and at the
time was being used by the public in general
as a highway and thoroughfare. We deem this
sufficient to constitute the bridge a public
road within the statute prohibiting drunken
driving. . . . Moreover the general and ac-
cepted rule appears to be that a toll road
Honorable Homer Garrison, Jr. Page 5 (~11-256).
or turnpike Is a public highway within the meaning
of statutes regulating the driving and operation
of motor vehicles thereon. 54 Am. Jur. Turnpikes
and Toll Roads, Sec. 3, p. 495."
In the case of Dodge County Commissioners v. Chandler,
supra, the Supreme Court of the United States held in substance
that public highways include turnpikes, used as thoroughfares,
and the charge of toll over them in no way affects their char-
acter as public highways. The Court further said that they
are public because of the right of the public to use them.
It is noted that Article 670ld, supra, in its defi-
nition of a street or highway requires that such thoroughfare
be not only open to the use of the public for purposes of
vehicular travel, but that same must also be publicly main-
tained.
In view of the foregoing authorities there can be
room for little doubt that the Dallas-Fort Worth Turnpike is
oaen for the use of the public, and the fact that a toll is
exacted for the privilege of using said turnpike does not alter
the situation . We think it equally clear that said turnpike
is also publicly maintalned within the purview and meaning of
Article 6701d. Mention has already been made of the fact that
the Texas Turnpike Authority is by statute expressly made an
agency of the State. Hence it must inevitably follow that the
tolls collected by said Authority pursuant to statute, and
used for the construction and maintenance of the respective
turnpikes, are, in all respects, public funds. These moneys
are collected by the Turnpike Authority as an instrumentality
of the State pursuant to legislative authority and are dis-
bursed in the same manner.
If the Dallas-Fort Worth Turnpike is held not to be
a public highway within the meaning of the foregoing traffic
laws, it must be by reason of Section 4 (c) of the Acts creat-
ing and defining the authority of the Texas Turnpike Authority.
This Section reads in part as follows:
"Provided, however, any 'Project' Or'Turn-
pike Project' which the Authority may construct
under the authority of this Act shall at all times
be deemed a public highway within the meaning of
Chapter 270, page 399, Acts, Fortieth Legislature,
1927, as amended, by Chapter 78, page 196, Forty-
first Legislature, First Called Session, 1929, and
Chapter 314, page 698, Acts, Forty-first Legisla-
ture, 1929, as amended by Chapter 277, page 480,
Honorable Homer Garrison, Jr., Page 6 (``-256)
Acts, Forty-second Legislature, 1931, as amended
by Chapter 290, page 463, Acts, Forty-seventh
Legislature, 1941, and to that end no motor bus
company, common carrier motor carrier, special-
ized motor carrier, contract carrier or other
motor vehicle operation for compensation and
hire shall be conducted thereon except in accord-
ance with the terms and provisions of . . ."
It is noted that the legislative acts referred to
in Section 4 (c) pertain exclusively to the operation of all
types of public carriers in and upon the public highways.
It has been urged that the Legislature by expressly desig-
nating those instances in which a "turnpike project" shall
be deemed a public highway has by implication precluded such
projects from being deemed public highways for all other
purposes. This reasoning is based upon the legal maxim
Expressio unius --
est exclusio alterius, which means: the
expression of one thing is exclusive of another. However.
like most legal maxims; the application of the foregoing '
maxim is made dependent upon the circumstances of each case.
The rule is only applied, under certain conditions, to enable
a court to determine the intention of the Legislature, not
otherwise manifest. Limitations on the application of the
rule are stated by 39 Tex. Jur. 190, in the following terms:
11 the r'lleexpressio unius is restricted
by the'legislative intention as disclosed by the
entire act; it is not to be applied when applica-
tion will not aid the court in ascertaining and
giving effect to the legislative intent. In such
case the expression of one or more things is not
an exclusion or negation of other things. Thus
it has been decided that a statute enumerating some
of the things to be done by a commission is not an
implied denial of authority to do anything else,
and that a recital of some of the ways in which
waste occurs is not an exclusive definition of the
only $inds of waste which the Legislature recognizes.
. . . (Emphasis added).
We think it clear that the application of the rule
of expressio unius in the instant case would not effecutate
legislative intent but, to the contrary, would serve to
defeat such purpose as revealed by the Act as a whole. Sec-
tion 23 of the Act provides:
Honorable Homer Garrison, Jr., Page 7 (~14-256).
"This Act, being necessary for the welfare
of the State and its inhabitants, shall be
liberally construed to effect the purposes
thereof.
Section 22 of said Act provides:
"The foregoing sections of this Act shall
be deemed to provide an additional and alter-
native method for the doing of the things
authorized thereby, and shall be regarded as
supplemental and additional to powers conferred
by other laws, and shall not be regarded as in
derogation of any powers now existing; . . ."
(Emphasis added).
As the Supreme Court of Texas stated in the case of
Texas Turnpike Authority v. Shepperd, suora, the Dallas-Fort
Worth Turnpike when completed will, in effect, be a part of
the highway system of this state. In view of the evident
purposes of the Turnpike Act as revealed by the language
thereof, we think that the Legislature has manifested a
clear intent that the traffic laws mentioned by your inquiry
should apply to the Dallas-Fort Worth Turnpike. A contrary
construction would mean that an agency of the State had been
authorized to construct and maintain an essential link In our
State Highway System without necessary police powers for ef-
fective traffic control.
Each of your three questions are accordingly answered
in the affirmative.
SUMMARY
The Dallas-Fort Worth Turnpike is
a public highway, and vehicular traffic
thereon is governed by: The Uniform Act
Regulating Traffic on Highways (Article
6701d, Vernon's Civil Statutes; the laws
Honorable Homer Garrison, Jr. Page 8, @w-256).
relating to driving while intoxicated
(Article 802, Vernon's Penal Code and
the speed laws of Texas (Article 8&'a,
Section 8, Subsection 1, Vernon's Penal
Code).
Yours very truly,
WILL WILSON
Attorney General of Texas
Leonard Passmore
Assistant
LP:jl:pf
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
James H. Rogers
Arthur Sandlin
Wayland C. Rivers, Jr.
REVIEWED FOR TIEATTORNEY GENERAL
By: James N. Ludlum.