         TEE    ATTORNEY            GENERAL
                     QF    TEXAS




                     February 7, 1963

Honorable Terry Townsend
Chairman, Highways and Roads Committee
House of Representatives
Austin, Texas
                          Opinion No. C-11
                          Re:   Constitutionality of H.B. 50,
                                with regard to the delegation
                                to the State Highway Commis-
                                sion of authority to setspeed
                                limitson the State Highway
                                System, lower than a maximum
Dear Mr. Townsend:              speed of 70 miles per hour.
       You have requested the opinion of this office as to
the constitutionality of certain provisions of House Bill
50, 58th Legislature. This proposed Act would raise the
maximum permissible speed on any highway In this State to
70 miles per hour, while other provisions would require
the Texas Highway Commission to set lower limits wherever
highway conditions are such as to make the maximum speed
unsafe. The problem posed Is whether the authority grant-
ed to the State Highway Commission is so broad as to vio-
late the general rule that the Legislature may not delegate
its legislative powers.
       For convenience, the pertinent portions of the pro-
posed Act are quoted:
            "sec. 167. Authority of the State High-
       way Commission to Alter Maximum Prima Facie
       Speed Limits.
            "(a) Whenever the State Highway Commis-
       sion shall determine upon the basis of an
       engineering and traffic Investigation that
       any maximum prima facie speed herelnbefore
       set forth Is greater or less than Is reason-
       able or safe under the conditions found to
       exist at any intersection or other place or
       upon any part of a highway, taking into con-
       sideration the width and condition of the

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                                                            .




Hon. Terry Townsend, page 2 (C-11   )


      pavement and othercircumstances on such
      portion of said highway as well as the usual
      traffic thereon. the Legislature hereby di-
      rects the State-Highway-Commission to deter-
      mine and declare a reasonable and safe maxi-
      mum prima facie speed limit thereat or there-
          by proper order of the Commission enter-
      3on   Its minutes, . . . which limit, when
      appropriate signs-giving notice thereof are
      erected, shall be effective at such inter-
      sections or other place or part of the high-
      way at all times or during hours of daylight
      or darkness, or at such other times as may
      be determined; provided, however, that said
      State Highway Commission shall not have the
      authority to modify or alter the basic rule
      established in paragraph (a) of Section 166
      nor to establish a speed limit higher than
      seventy (70) miles per hour.
            "(b) The State Highway Commission shall,
       in conducting the engineering and traffic
       investigation specified in paragraph (a) of
       Section 167, follow its 'Procedure for Estab-
       lishing Speed Zones' which is in use on the
       effective date of this act and as same may be
       subsequently revised for reasons of techno-
       logical advancements in traffic operation,
       design and construction of highways and motor
       vehicles, as well as the safety of the motor-
       ing public."
       An examination of the Constitution of Texas reveals
no provision that would specifically prohibit the delegation
of authority contal.nedin the proposed Act. Where there is
no express prohibition, the Legislature has authority to act.
Houston Lighting and Power Co. v. Fleming, 128 S.W.2d 487
1Tex.M        1939, rev. on other grounds, 135 Tex. 463, 138
S.W.2d ;$"'
       The general rule Is that the Legislature may not dele-
gate its legislative powers. It is also a general rule that
if the Legislature has prescribed sufficient standards to
guide the discretion conferred, the power is not legislative
and the delagation is lawful. Gillaspie v. Department of
                                     2d 1'17:ce:
-MAY'?:            %~;e~~?;,‘%?&8       SW2d   G42 Tgix 2::
App: 1955, n.r.e.). In the quoted'portions'of the proposed'


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Hon. Terry Townsend, page 3 '(C- li )


Act, the Legislature has given clear and explicit instruc-
tions to the State Highway Commission as to the criteria
to be applied in determining a reasonable and safe maximum
prima facie speed limit. In Subsection (b) of Section 167,,
the Commission is even directed to use a specific technique,
already established and in use, as a means of arriving at
the said reasonable and safe maximum speed.
       Further light was cast upon the problem of delega-
tion of legislative power in Nichols v. Cits of Dallas, 347
S.W.2d 326 (Tex.Civ.App. 1961, n.r.e!. ), when, at page 335,’
Chief Justice Dixon stated:
            "The fact that under a delegation of
       authority to an administrative officer there
       is an area for the exercise of his discre-
       tion does not render the delegation of au-
       thority unlawful if the standards formulated
       for his guidance and the limits of his dis-
       cretion, though general, are capable of
       reasonable application."
       In view of the foregoing, J.tis the opinion of this
office that the delegation of authority to the State Highway
Commfssion, contained in House Bill 50, is sufficiently limit-
ed and contains sufficiently explicit instructions, so as not
to constitute an unlawful delegation of legislative power.
                         SUMMARY
       The authority granted In House Bill 50,
       58th Legislature, authorizing the State
       Highway Commission to set speed limits
       lower than ,70 miles per hour wherever
       highway conditions are such as to make
       that speed unsafe, is suff'icientylimited
       and contains sufficiently explicit lnstruc-
       tions, and does not constitute an unlawful
       delegation of the legislative power, and is
       therefore constitutional.
                         Yours     very   truly,
                         WAGGONER CARR
                         Attorney General



MLQ:wb:ms
                         w&e     Assistant'
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Hon. Terry Townsend, page 4 (C-11)

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Marietta Payne
Frank Booth
Arthur Sandlln
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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