                     July 24 , 1967


Hon. D. C. Greer                      Opinion No. M-108
State Highway Engineer
Texae Highway Department              Re:   Validity of appropriation
Austin, Texas                               to the Texas Highway Depart-
                                            ment to construct and main-
                                            tain railroad protective
Dear Mr. Greer:                             devices.
            Your request for an oplnlon on the above subject matter
concerns the validity of Item 22 of Artlole XIX oftthe Appropriation
to the Highway Department contained in Senate Bill 15, Acts of the
60th Legislature, Rs lar Session, 1967 (appropriation for the year
-dd;;eAwust     31, 19 P 8). Item 22, above ref’erredto* reads as
        :
                                                For the Year
                                                  August 31,

         “In addition to other State funds
    expended for simllar purposes under
    previously existing policy, there Is
    hereby provided from the State Hlgh-
    way Fund for joint participation by
    the Texas Highway Department and the
    respective railroad companies opera-
    ting in the State a sum of moneys to
    be expended and administered by the
    Texas Highway Department under rules
    and regulations established by it for
    the welfare and safety of the travel-
    ing public to construct and maintain
    grade crossing protective devices on
    Federal, State and County highways and
    City streets on the distribution formu-
    la heretofore established by the Texas
    Highway Department applicable to the
    construction of such grade crossing
    protective devices on State highways,
    and directing the Department to deve-
    lop standards and criteria for the proper
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Hon. D. c.   Greer, page 2 (~-108)


     priority allocation of such funds to
     specific grade crossings demand~lngthe
     Installation anu maincenhnce based upon
     incidence of automotive and train traffic
     at the crossing, accident experience,
     observation obstruction and other,
     designed to foster and establish a
     consistent and orderly program to
     eliminate hazards to the public
     on the public highways, roads and
     streets in the State and provided
     that in arriving at oosts payable
     by the State,for the construction
     and :malntenance provided herein,
     payment may be made by the Depart-
     ment to qualified recipients by fixed
     sum determined on a formula basis or
     otherwise under such rules and regu-
     lations asthe Department may es-,,
     tabllsh with a view,'towardslmplifi-
     cationof, the auditing and accounting
     involved; such sum established to be:
     expended only for the state purposes
     and to be                                    $1,500,000H

          Gene&l legislation cannot be embodied within a general
appropriation bill. Moore vs. Sheppard, 144 Tex. 537, 192 S.W.2d
599 (1946). However, a general appropriation bill may contain
general provisions and details limiting and restricting the use
of funds therein appropriated if such provisions are necessarily
connected with and Incidental to the aonrooriation and use of funds
if they do not conflict with or amount-to general'legislation.
Conley vs. Daughters of the Republic, 106 Tex. 80, 156 S.W. 197
      .
          A general appropriation bill cannot reoeal, modif or
amend an existing general law. Linden vs. Finle , 92 Tex. % 51,
49 S.W. 578 (1899); State vs. Steele, 3,'f
                                         Tex. 2& (1882).
          Appropriations must be supported by,pre-existing law.
Austin National Bank vs, Sheooard. 123 Tex. 272, 71 S.W.,2d242 ii1934);
Port Worth Cavalry Club vs. Sheppan-cl,12.5Tex. 339, 83 S.W.2d 6 0;
State vs. Steck C0.9      0 .   tlbb(Tex.Clv.App. 1951, error ref.).
          The foregoing principles applicable to appropriations by
the Legislature are discussed in more detail in Attorneys General
opinions V-1253 (1951)) V-1254 (1951) and w-96 (19.57). In deter-
mining the validity of Item 22 above quoted, we must examine the
pre-existlng law applicable to the Texas Highway Department applying
the foregoing principles of constitutional law summarized above.
                         - 494 -
    .    -




Hon. D. C. Greer, page 3(M-108)’ :~   .:


Broad powers and authority have been given the Texas Highway Depart-
ment to maintain the various state highways In Texas by the pro-
visions of Title 116 of the Re,visedCivil Statutes of Texas, 1925,
(Articles 6663 through 6701k, Vernon’s Clvll Statutes).
          In construing the provisions of Article 6701d, Vernon’s
Civil Statutes, the Supreme Court stated in Gann vs. Keith, 253
S.W.2d 413, 417 (1952);
               .Artlcle 6701d.is a very comprehensive
             rl


    law, and ‘the act shows upon its face that it was
    intended as a comprehensive code for the regulation
    of traffic on highways, and was considered by the
    Legislature as both a clvll and a criminal,statute.
    The Intent of the Legislature is clearly shown by
    Section 154, which reads: ‘This Act may be cited
    as the Uniform Act Regulating Traffic on Hlghwa~ys.’
    The Act ahows that It was intended to cover and regu-
    late traffic,,inevery respect on the highways of the
    State. . , .
          Section 30 of Article 6701d specifically authorizes the
State Highway Department to place and maintain traffic control de-
vices upon all state highways as It may deem necessary to regulate
warn or guide trafflo . The highway system Includes not only state
highways outside the corporate limits of cities and towns, but also
includes such roads and streets specifically designated by the
Department as a part of the highway system. Attorneys General
opinions v-1115 (1950), v-1514 (1952) and ~~-1486 (1962).
          In view of the foregoing, it is our opinion that Item 22
of the appropriation to the Texas Highway Department contained in
Senate Bill 15, Acts of the 60th Legislature, Regular Session, 1967,
for the year ending August 31, 1968, constitutes an appropriation
supported by pre-existing law for the purpose of enabling the Texas
Highway Department to carry out a portion of its duties imposed by
law. You are therefore advised that such item of appropriation is
constitutional and valid. Therefore, such funds may be expended
for grade crossing protective devices on those crossings on high-
ways, roads and streets officially designated by the Texas Highway
Department as a part of the highway system.
                     SUMMARY
         Item 22 of the appropriation to the Texas
    Highway Department contained In Senate Bill 15,
    Acts of the 60th Legislature, Regular Session,
    1967, for the year ending August 31, 1968, is

                        -   495   -
Hon. D. C. Greer, Page 4 (M-108)


     constitutional and may be expended for the purpoees
     named therein on those afaded crossinas on euch
     highway roads and atree: officially zeslgnated by
     the Department as a part of the highway system.
                                   truly yours,

                                       zm
                                       C. MARTIN
                                   ney General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE,
HawthotinePhillips, Chairman
Kerns Taylor, Co-Chairman
W. 0. Shultz
Watson Arnold
Ben Harrison
Tom Thurmond
A. J, CARURBI, JR,
Staff Legal Assistant




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