   OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

   JOHN      CORNYN




                                             September 4,2002



The Honorable J.E. “Buster” Brown                       Opinion No. JC-055 1
Chair, Senate Natural Resources Committee
Texas State Senate                                      Re: Whether the term “two designated lanes of a
P.O. Box 12068                                          highway,” as used in section 545.065 1(b) of the
Austin, Texas 78711                                     Texas Transportation Code, may be construed to
                                                        mean “two or more lanes” (RQ-0524-JC)


Dear Senator Brown:

       You have requested our opinion regarding the proper construction of section 545.065 1(b) of
the Texas Transportation Code, which authorizes a municipality to “restrict, by class of vehicle,
through traffic to two designated lanes of a highway in the municipality.” For the reasons set forth
below, we conclude that the “two-lane” restriction refers to precisely two lanes rather than to “two
or more lanes.”

           Section 545.065 1(b) of the Transportation      Code was adopted in 1997 and provides      as
follows:

                  (b) A municipality by ordinance may restrict, by class of vehicle,
                  through traffic to two designated lanes of a highway in the
                  municipality.

TEX.TRANSP.CODEANN. 4 545.065 l(b) (Vernon 1999). “Highway,” for purposes of this provision,
is defined as “a public roadway” that:

                  (A) is in the designated   state highway system;

                  (B) is designated   as a controlled   access facility; and

                  (C) has a minimum of three travel lanes, excluding access or frontage
                  roads, in each direction of traffic.

Id. 8 545.065 1(a)(2). An ordinance adopted under this provision is required to:

                  (1) be in effect only during peak traffic hours of a workday; and
The Honorable J.E. “Buster” Brown        - Page 2           (JC-055 1)




                (2) allow a restricted vehicle to use any lane of the highway to pass
                another vehicle and to enter and exit the highway.

Id. 0 545.065 1(c). Before a municipality adopts an ordinance under section 545.065 1(b), it must
“submit to the [Texas Department of Transportation] a description of the proposed restriction.” Id
6 545.065 1(d). The municipality may not enforce the restrictions unless:

                (1) the department’s  executive director or the executive director’s
                desi gnee has approved the restrictions; and

                (2) the appropriate    traffic control devices are in place.

Id. 8 545.065 l(d)(1)-(2). Subsection        (e) provides     that Department   of Transportation   (the
“Department”) approval must:

                (1) be based on a traffic study performed by the department            to
                evaluate the effect of the proposed restriction; and

                (2) to the greatest extent practicable, ensure a systems approach to
                preclude the designation of inconsistent lane restrictions among
                adjacent municipalities.

Id. 8 545.0651(e). In addition, the executive director of the Department        “may suspend or rescind
approval” under this section for one or more of the following reasons:

                (1) a change in pavement conditions;

                (2) a change in traffic conditions;

                (3) a geometric change in roadway configuration;

                (4) construction    or maintenance    activity; or

                (5) emergency      or incident management.

Id. 8 545.065 1(f). Finally, the Department is directed to “erect and maintain official traffic control
devices necessary to implement and enforce an ordinance adopted and approved under this section.”
Id. tj 545.065 l(g).

        Information submitted with your request indicates that the City of Houston (the “City”) has
already implemented subsection (b) on a portion of Interstate 10 east of downtown Houston, by
The Honorable    J.E. “Buster” Brown        - Page 3          (JC-0551)




restricting eighteen-wheelers and other large trucks’ to the two outside lanes of the controlled access
highway. Because that part of the highway consists of a total of three controlled-access lanes in each
direction, only the one inside lane in each direction is designated for the sole use of passenger cars
and other “light” vehicles. The City now proposes to adopt an ordinance applying the same
restrictions to a portion of Interstate 45 north of downtown Houston. That part of the highway has
four controlled-access lanes in each direction. Thus, by restricting large trucks to the two outside
lanes, the two inside lanes would be designated solely for the use of passenger cars and other light
vehicles.

         The Department opposes such restricted use of two lanes in each direction on that stretch of
highway, and suggests that the use of the term “two designated lanes” in section 545.065 1(b) should
be read as “two or more designated lanes.” In that event, large trucks would be permitted to use
three of the four lanes in each direction of Interstate 45 North, and only the inside lane would be
reserved for the use of passenger cars and other light vehicles. The City disagrees with this
construction of the statute. You ask whether the term “two designated lanes” may reasonably be
construed to mean “two or more designated lanes.”

         In our view, it is clear that the word “two” cannot be read to mean “two or more.” The word
“two,” in the context of your question, is defined as “the cardinal number next after one; one added
to one.” XVIII OXFORD ENGLISHDICTIONARY 771 (2d ed. 1989). When a statute is clear and
unambiguous, its words are given their common meaning. Exparte Evans, 964 S.W.2d 643,646
(Tex. Crim. App. 1998); Rakes v. Sugg, 930 S.W.2d 912, 913 (Tex. App.-Fort Worth 1996, no
writ). As the Supreme Court has said, “it is cardinal law in Texas that a court construes a statute,
‘first, by looking to the plain and common meaning of the statute’s words.’ If the meaning of the
statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by
the plain meaning of the provision’s words and terms.” Fitzgerald v. Advanced Spine Fixation Sys.,
996 S.W.2d 864,865 (Tex. 1999) (citing Liberty Mut. Ins. Co. vs. Garrison Contractors, Inc., 966
S.W.2d 482,484 (Tex. 1998)). The Supreme Court has recognized that language may not be added
to a statute unless doing so is necessary to effectuate legislative intent. Id. at 867. “Only truly
extraordinary circumstances showing unmistakable legislative intent should divert us from enforcing
the statute as written.” Id.

         The legislative history does not reveal unmistakable legislative intent that large trucks should
be restricted from two or more lanes of a controlled-access highway. On the contrary, the legislature
specifically rejected similar language. Section 545.065 1(b), as originally introduced in House Bill
393, provided that “[tlhe ordinance may include restrictions on the use of one or more lanes of a
highway.” Tex. H.B. 393, 75th Leg., R.S. (1997) (Introduced version) (emphasis added). The
committee substitute “deleted provisions that would have restricted application to cities of 250,000
people or more and allowed restrictions to be imposed on one or more highway lanes.” HOUSE
RESEARCH ORG., BILL ANALYSIS, Tex. Comm. Substitute H.B. 393, 75th Leg., R.S. (1997). A



        “‘Trnck” is defined as “a motor vehicle designed, used, or maintained   primarily   to transport property.” TEX.
TRANSP. CODE ANN. $ 541.201(21)    (Vernon Supp. 2002).
The Honorable     J.E. “Buster” Brown         - Page 4       (JC-055 1)




companion bill, Senate Bill 773, was introduced in the Senate without any lane limitations. Tex.
S.B. 773, 75th Leg., R.S. (1997) (Introduced version). The Senate Committee on State Affairs
rejected this version, and reported favorably a committee substitute. Tex. Comm. Substitute S.B.
773,75th Leg., R.S. (1997). Senate Bill 773 was then adopted by both houses as the present version
of section 545.065 1 of the Transportation Code, incorporating the companion bills into one. Thus,
both the House and the Senate considered alternatives to the present language of section
545.065 1(b), and rejected each of them.

         The Department argues that the word “two” should be interpreted to mean “two or more”
because to restrict large truck traffic to only two lanes would produce an absurd result in this
situation.* It is well established that courts will not construe a statute in a manner that will lead to
a foolish or absurd result if another alternative is available. Del Indus., Inc. v. Tex. Workers ’Comp.
Ins. Fund, 973 S.W.2d 743,747 (Tex. App.-Austin 1998), afd, 35 S.W.3d 591 (Tex. 2000). In
our opinion, however, there is nothing absurd about a construction that would restrict large trucks
to two lanes on a four-lane highway. Such a result is entirely feasible of execution. Furthermore,
as we recently recognized in Attorney General Opinion JC-0493, few, if any, cases recognizing the
absurd-results principle have departed from the plain meaning of the statute. Tex. Att’y Gen. Op.
No. JC-0493 (2002) at 5-6. See also Tex. Att’y Gen. Op. No. JC-0267 (2000) (an anomalous result
is not necessarily an absurd result).

        In our view, there can be no doubt that the legislature intended the word “two” to mean
exactly “two” and not “two or more.” It is therefore our opinion that the “two-lane” restriction of
section 545.065 1(b) of the Transportation Code refers to precisely two lanes rather than to “two or
more lanes.”




         *Brief from Jack Ingram, Associate   General Counsel, Texas Department of Transportation,  to Ms. Susan
Denmon Gusky, Chair, Opinion Committee,       Office of the Attorney General (May 1, 2002) (on file with Opinion
Committee).
The Honorable J.E. “Buster” Brown     - Page 5        (JC-055 1)




                                       SUMMARY

                        Section 545.065 l(b) of the Texas Transportation          Code
               authorizes a municipality to “restrict, by class of vehicle, through
               traffic to two designated lanes of a highway in the municipality.” The
               term “two” means precisely two and may not be construed to mean
               “two or more.”
                                               You very truly,



                                            ii (
                                              JOHN
                                                      CL,,

                                                       CORNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
