                           NEY      GENERAL

                     OF    TEXAS




                           February 4, 1966


Honorable D.,C. Greer                Opinion No. C-595
State Highway Engineer
Texas Highway Department             Re: Whether the Texas Highway
Austin, Texas 78701                      Department has the authority
                                         to utilize certain Federal
                                         aid funds, allocated to Texas
                                         under Public Law 89-285, for
                                         the acquisition of interests
                                         in and improvement of strips
                                         of land necessary for the
                                         restoration, preservation and
                                         enhancement of the scenic
                                         beauty adjacent to Federal-
                                         aid highways.
,Dear Mr. Greer:

     You have requested an opinion of this office concerning the
authority of the Texas Highway Department to utilize certain
Federal aid funds, to be allocated to Texas under Public Law
89-285. In your request you refer to Title III of Public Law
89-285 which amends Section 319 of Title 23, United States Code.
You also state that Texas statutes “... provide for the cooperative
endeavor between the State of Texas and the United States
Government in the utilization of Federal-aid funds for the develop-
ment of the highway system."

     Public Law 89-285 is captioned "An act to provide for
scenic development and road beautification of the Federal-aid
highway system." This act is known as the Highway Beautification
Act of 1965. Title III of this act provides that "the secretary
may approve as a part of the construction of Federal-aid highways
the costs of landscape and roadside development ...I( Subsection b
of Title III further provides in part that:



                                 -2871-
Hon. D. C. Greer, page 2 (C-595)


          "An amount equivalent to 3 per centum of the
          funds apportioned to a State for Federal-aid
          highways for any fiscal year shall be allocated
          to that State out of funds appropriated under
          authority of this subsection, which shall be used
          for landscape and roadside development within
          the hicthwav riqht-of-wav and for acquisition of
          interests in and improvement of strips of land
          necessary for the restoration, preservation, and
          enhancement of scenic beauty adjacent to such
          highwavs, including acquisition and development
          of publicly owned and controlled rest and
          recreation areas and sanitary and other facilities
          within or adjacent to the hiqhwav riqht-of-way
          reasonably necessary to accommodate the traveling
          public, without being matched by the State ..."
          (Emphasis added.).

     It should be noted that the uses for which Congress appro-
priated funds in Title III are as follows:    (1) for landscape and
roadside development within the hishwav risht-of-wav, (2) for
acquisition of interests in and improvement of strips of land
necessary for the restoration, preservation, and enhancement of
scenic beauty adjacent to such hiqhwavs, and for (3) acquisition
and development of publicly owned and controlled restand
recreation areas and sanitary and other facilities within or
adjacent to the hiqhwav riqht-of-way reasonably necessary to
accommodate the traveling public. The monies allocated under the
provisions of Title III are, therefore, to be expended in part
within existing right-of-way and in part outside existing right-
of-way on lands ,adiacent to such right-of-way.

     Your opinion request is limited to the second mentioned use
in subsection (b) of Title III of Public Law 89-285, namely,
"acquisition of interests in and improvement of strips of land
necessary for the restoration, preservation, and enhancement of
scenic beauty adjacent to such highways..."   You request our
opinion, in other words, on'~the authority of the Texas Highway
Department to utilize these Federal-aid funds for the acquisition




                               -2872-
Eon.,D.,C. Greer, page 3 (C-595)


of interests in and improvement of strips of land necessary for
the restoration, preservation and enhancement of scenic beauty
adjacent to rights-of-way of Federal Aid Highways in Texas.

     The people of Texas in Section 24'of Article 16 of the
Constitution of Texas have conferred the power and imposed the
duty upon the Legislature to provide for public roads in the
State of Texas. The Legislature, therefore, has the primary
and plenary power to control~and regulate public roads: but the
Legislature may delegate that authority. Texas Hiqhwav Commission
v. El Paso Bldq. and Const. Trades Council, 149 Tex. 348, 234
S.W.2d 857 (1951); State v. Citv of Austin, 160 Tex. 348, 331
S.W.2d 737 (1960).

     The Articles in Chapter 1 of Title 116 of Vernon's Civil
Statutes contain most of the civil statutes of Texas pertaining
to the authority delegate~d by the Legislature'to the State
Highway Department in regard to State highways.   Article 6673,
Vernon's Civil Statutes, provides that the State Highway
Commission "is authorized to take over and maintain the various
state highways in Texas ...(I

     In Article 6674w-3 of Title 116, Vernon's Civil Statutes,
entitled "Acquisition of property," the Legislature conferred
upon the State Highway Commission, in addition to other powers
conferred by law, certain powers of purchase and condemnation
for highway purposes.  Subsection l(a) of Article 6674w-3,
which delegates the powers of purchase, is quoted as follows:

          II.. .Any land in fee simple or any lesser
          estate or interest therein;'anv property
          riqhts of any kind or character including,,
          but not limited to, riqhts of ingress and
          eqress and reservation riqhts in land which
          restrict or prohibit the addinq of new, or
          addition to or modification of existinq im-
          provements on such land, or subdividinq the same:
          and any timber, earth, stone, gravel, or other
          material: which'the State Hiqhwav Commission
          may in its judqment determine to be necessary
          or convenient to any State Hiqhwav to be




                            -2873-
Hon. D. C. Greer,,page 4 (C-595)


          constructed, reconstructed, maintained, widened,
          straightened or lengthened includins, but not
          limited to, any land, property riohts or materials
          deemed by the State Hishwav Commission necessary
          or convenient for the purpose of protecting any
          State Highway; draining any State Highway: diverting
          streams or rivers or any other,watercourse from
          the right of way of any State Highway; storing
          materials and equipment used in' the construction
          and maintenance of State Highways: constructing
          and operating warehouses and other buildings and
          facilities used in connection with the construction,
          maintenance, and operation of State Highways:
          laying out, construction, and maintenance of
          roadside parks: and any other purpose related to
          the laying out, construction, improvement,
          maintenance, beautification, preservation and
          operation of State Hishwavs. mav be purchased bv
          the State Hiqhwav Commission in the name of the
          State of Texas, on such terms and conditions and
          in such manner as the Hiqhway Commission may deem
          proper." (Emphasis added)

     Does Subsection l(a) of Article 6674w-3 contain legislative
authorization to the Department to purchase interests in strips
of land adjacent to highway right-of-way?

      The cardinal rule of statutory construction is to ascertain
and give effect to the legislative intent. Subsection 6 of
Arti,&e 10, Vernon's Civil Statutes: State v. Shoppers World, Inc.380 S-1
2d 107 !(Tex;Siipi1964). When the legislative intent of a statute
is plain and its meaning is patent, there is no need for resort
to aids of statutory construction. ,Fire Assn. of Philadelphia
v. Love, 101 Tex. 376, 108 S.W. 158 (1908); Fox v. Burqess, 157
Tex _ 292, 302 S.W.2d 404 (1957). The Court's only duty in such a
situation is to observe and enforce the statute. Gilmore v. Waples,
108 Tex. 167, 188 S.W. 1037 (1916).




                              -2874-
  .




Hon. D. c. Greer, page 5 (C-595)


     Subsection l(a) of Article 6674w-3 does not plainly say
that the Department may purchase interest in strips of land
adjacent to highway right-of-way.  The'statute is vague and in
doubt on this point.  It is, therefore, necessary to resort
to aids and rules of statutory construction to ascertain the
legislative intent. ~Cannon's Adm. v. Vauqhn, 12 Tex. 399, at 402
(1854): Kay v. Schneider, 110 Tex. 369, 221 S.W.880 at 884 (1920);
State v. Shoppers World, Inc., supra.

     Subsection l(a) of Article 6674w-3 is a complex statutory
sentence which has three subjects separated by semicolons.
These three subjects describe three categories of items which the
State Highway Commission may purchase. These phrases are followed
by an adjective clause modifying the compound subject of the
sentence. This dependent clause ("which the State Highway
Commission may ...") limits the powers of purchase delegated by
imposing the requirement that the State Highway Commission
determine (1) that the item is necessary or convenient to any
State Highway and (2) that the item be necessary or convenient
for any one of a series of specified purposes.   This adjective
clause is then followed by the verb and object of the sentence,
to wit:   "may be purchased by the State Highway Commission in
the name of the State of Texas, on such terms and conditions and
in such manner as the Highway Commission may deem proper."

     The three subjects describe three different types or
categories of property that may be purchased by the Department:
the three subjects do not overlap in their scope of description.
To read the statute otherwise would violate a rule of statutory
construction which requires that each sentence, clause, phrase
and word be given effect if reasonably possible. Spence v.
Fenchler, 107 Tex. 443, 180 S.W. 597 at 601 (1916); Eddins-
Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93 at
96 (1957); Perkins v. State, 162 Tex. 456, 367 S.W.2d 140 at
146 (1963). It is presumed that each phrase was inserted for
a definite purpose, and the statute should not be construed so
as to result in the omission of a phrase from the statute.
Perkins v. State, supra: Moore v. Commissioners! Court of Bell
County, 175 S.W. 849 at 851 (Tex. Civ.App. 1916 error dism.)




                                   -2875-
                                                   ,    -




Hon. D. c. Greer, page 6 (C-595)


     The first subject grants the Department sufficient power
to purchase all lands in fee simple or any lesser estate therein,
such as an easement, necessary for right-of-way for State
Highways.  The third subject grants the Department the power to
purchase materials necessary for State Highways.  Obviously the
Legislature intended that the Department be empowered to purchase
materials located outside existing or proposed right-of-way proper.

     The second subject grants the Department the power to
purchase "any property rights of any kind or character including,
but not limited to, rights of ingress and egress and reservation
rights in land which restrict or prohibit the adding of new, or
addition to or modification of existing improvements on such land,
or subdividing the same." The Legislature thus intended to
grant to the Department the power to purchase "property rights" in
land outside existing rights-of-way.

     Since the first subject grants sufficient power to purchase
all lands necessary for rights-of-way, the Legislature must have
had in mind a different purpose in adding the second subject.
Also, the specific kinds and character of property rights mentioned
in the second subject clearly refer to interests in land outside
of existing rights-of-way, such as (1) rights of ingress and egress
and (2) reservation rights in land which (a) restrict or prohibit
the adding of new, or addition to or modification of existing
improvements on such land, or (b) restrict or prohibit subdividing
the same. The phrase "including, but not limited to" is a legis-
lative instruction prohibiting the application of the rule of
construction known as "ejusdem generis" defined and applied in
Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 272 (1944).
The general terms are, therefore, to be accorded their full scope
of meaning without being limited to the kinds and character of
property rights specifically mentioned.

     The grant of power to purchase property rights outside
existing rights-of-way is not limited in kind or character, but
the grant of power is limited to a Highway Commission determination
that the property right to be purchased is necessary or convenient
to State Highways for one of a number of enumerated purposes.   In
the adjective clause enumerating the purposes for which purchases
may be made, the Legislature included the purpose of "beautification"
of State Highways.



                              -2876-
  .   .,




Hon.,D. C. Greer, page 7(C-595)


     The Legislature did not define the word "beautification" in
the statute. There is no indication, however, that the word is
used as a term of trade or art. The Legislature is, therefore,
presumed to have intended the common meaning or"ordinary
signification“ of the word.   Subsection 1 of Article 10,
Vernon's Civil Statutes;Turner v. Cross, 83 Tex. 218, 18 S.W.578,
579 (1892); Eddins-WalcherButane   Co. v. Calvert, supra; Tm
P.R. CO. v.,Railroad Comm., 105 Tex. 386, 150 S.W. 878 (1912):
State ex rel. Walton v. Yturria, 109 Tex. 220, 204 S.W. 315 at
316 (1918).   "Beautification" is not an easily defined term;
the scope of the term itself is vague.   It is proper to
consult a dictionary to ascertain the ordinary significance or
common usage of the word. Eddins-Walcher Butane Companv v.
Calvert, supra; Texas & P.R. Co. v. Railroad Comm., 105 T&x. 386
150 S.W. 878 (1912); Board of Insurance Comm'rs v. Duncan, 174
S.W.2d 326, 328 (Tex. Civ. App. 1943, error ref.)

     "Beautification" is defined in Webster's Seventh New
Collesiate Dictionary (Springfield, Mass.: G. & C. Merriam
Company, Publisher, 1963), as "the act or process of beautifying."
The same dictionary defines "beautify" as "to make beautiful or
add beauty to." "Beauty" was defined in the same dictionary as
"the quality or aggregate of qualities in a person or thing
that gives pleasure to the senses or pleasurably exalts the mind
or spirit." The purchase of interest in strips of land adjacent
to highways to enhance scenic beauty would add beauty--in the
ordinary significance of the word--to highways: the purchase oft
interest in such strips of land adjacent to highways, therefore,
falls within the purpose of beautification expressly mentioned
in Subsection l(a) of Article 6614w-3.

     The,Legislature in Subsection l(b) of Article 6674w-3
delegated to the State Highway Department certain authority to
acquire property by exercise of the power of eminent domain.
The language of Subsection l(b) is not similar to the language of
Subsection l(a) in several important ways. The clause enumerating
the purposes for which the power of eminent domain may be exercised
does not mention "beautification."  Subsection l(b) does not,
therefore, expressly authorize the State Highway Department to
acquire property for beautification of,State Highways by exercise
of the power of eminent domain.



                                  -2877-
                                                   1..




Hon.,D. C. Gfeer, page 8 (C-595)


     It has been said that I'...the power of eminent domain
must'be conferred by the Legislature, either expressly or by
necessary implication, and will not be gathered from doubtful
inferences.' Coastal State Gas Producinq Company v. Paqe, 158
Tex. 151, 309 S.W.2d 828, 831 (1958). The State Highway Department
does not need to acquire property for beautification of State
Highways by the exercise of the power of eminent domain in order
to carry out the purposes of Article 6674~ as demonstrated by the
fact that the Department has operated under the Act since 1957
without exercising such power for such purpose. There is, there-
fore, no necessary implication of a grant of authority to condemn
property for beautification of State Highways.

     Article 6672,~Vernon's Civil Statutes, requires that, "Any
funds forpublic road construction in this State appropriated by
the Federal Government shall be expended by and under the super-
vision of the Department only upon a part of the system of State
Highways."

     In conclusion, the State Highway Commission may acquire by
purchase, but not by condemnation, in the name of the State of
Texas, on such terms and conditions and in such manner as the
Highway Commission may deem proper, interests in strips of land
necessary for the restoration, preservation, and enhancement of
scenic beauty adjacent to State Highways, deemed by the State
Highway Commission necessary or convenient for the purpose of
beautification of State Highways.  The State Highway Commission
may achieve the beautification of State Highways by widening
existing rights-of-way to incorporate such strips of land necessary
for the restoration, preservation, and enhancenant of scenic
beauty; or the State Highway Commission may purchase interest in
strips of land adjacent to State Highways for the beautification
of such highways without:alteration of the existing lines of
rights-of-way.  Monies allocated to the State of Texas under the
provisions of Title III of Public~Law 89-285, however, must be
expended by the Department only on those Federal-aid highways
which are a part of the system of State Highways.




                                   -2878-
Hon. D. C. Greer, page g (C-595)


                             SUMMARY

               The Texas Highway Department is authorized
            by virtue of Article 6674w-3, Vernon's Civil
            Statutes, to purchase interests in strips of
            land necessary for the restoration, preservation
            and enhancement of the scenic beauty adjacent
            to Federal-aid Highways in Texas which are a
            part of the system of State Highways.

                                       Yours very truly,

                                       WAGGONER CARR
                                       Attorney General


                                       BY   1
                                         fzG.LQk,L
                                         Richard A. Shannon
                                         Assistant Attorney General
RAS:tv;me

APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman
Carroll Graham
William Hemphill
John Banks
Roger Tyler

APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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