Opinion Number

Dear Senator Landry:

You requested the opinion of this office relative to issues concerning Article VII, Section 27 of the Louisiana Constitution, the Transportation Trust Fund (the "Fund"). Your first question is whether monies in the Fund can be used for the costs for and associated with off-system bridges?

As you correctly noted in your opinion request, the Constitution in Section 27 (B) provides that the monies in the Fund "shall be appropriated or dedicated solely and exclusively for the costs for and associated with construction and maintenance of the roads and bridges of the state and federal highway systems, the Statewide Flood-Control Program or its successor, ports, airports, transit, state police for traffic control purposes, and the Parish Transportation Fund or its successor . . ." (Emphasis supplied) Section 27 (B) further states that the monies in the Fund allocated to ports, airports, flood control, parish transportation, and state highway construction shall be appropriated "only pursuant to programs established by law which establish a system of priorities for the expenditure of such monies." (Emphasis supplied) It is clear that the constitution prohibits the monies in the Fund from being used for the construction or maintenance of roads or bridges which are not within the state or federal highway systems.

It should also be noted that in addition to the constitutional violation, there may also be a violation of statutory law when the Fund is used for the construction or maintenance of roads or bridges which are not within the state or federal highway systems. La. R.S. 48:757, amended in 1990 subsequent to the creation of the Fund, prohibits the office of highways from performing any work "on the parish road system or on any other roads or streets which are not in the state highways system, whether such work is construction or maintenance . . ."

The two exceptions to this prohibition (first, if an emergency is found and declared by the governor, the governor may expend state funds on parish roads; and second, striping of parish roads is permitted if the assistant secretary determines that surplus manpower and equipment are available and the purchase of new equipment is not required) would not apply to the situation presented.

Your second question concerns that portion of Section 27 (B) which states in pertinent part:

"The state generated tax monies appropriated for ports, Parish Transportation Fund, or its successor, and the Statewide Flood-Control Program, or its successor, and state police for traffic control purposes shall not exceed twenty percent annually of the state generated tax revenues in the trust fund . . ." (Emphasis supplied)

Your specific question is whether the twenty percent appropriation should be based on the sixteen cents tax dedicated to the Fund or should the appropriation be based on the receipts from the sixteen cents tax plus the four cents tax dedicated to the TIME program.

Section 27 (A) establishes the Fund and provides in pertinent part as follows:

". . . there shall be established . . . the Transportation Trust Fund ("the trust fund") in which shall be deposited the "excess revenues" as defined herein which are a portion of the avails received in each year from all taxes levied on gasoline and motor fuels and on special fuels (said avails being referred to as the "revenues") as provided herein . . ." (Emphasis supplied)

As quoted above, the Fund is comprised of all taxes levied on gasoline and motor fuels and on special fuels, which includes the four cents tax levied pursuant to R.S. 47:820.1. As provided in R.S. 47:820.2, this four cents tax is dedicated to the TIME program which was created within the Fund. Thus, in determining the twenty percent maximum amount of "state generated tax revenues in the trust fund" which can be appropriated to the ports, the Parish Transportation Fund, the Statewide Flood-Control Program and state police, all taxes levied on gasoline and motor fuels and on special fuels must be considered, including the four cents levied pursuant to R.S. 47:820.1.

"State generated tax revenues in the trust fund" would include more than taxes levied on gasoline and motor fuels and on special fuels. This term also includes the tax revenues generated from the license tax on automobiles for private use, the avails of which must also be deposited into the Fund pursuant to Article VII, Section 5 of the Constitution.

At your request, we are not addressing the third issue raised in your correspondence at this time. Of course, we will be happy to respond to that issue in the future.

Trusting this adequately responds to your request, I remain

Yours very truly,

Richard P. Ieyoub Attorney General

By: Martha S. Hess Assistant Attorney General