The Honorable    Price  Daniel,   Jr.                    Opinion    No.   H- 175
Speaker,   House of Representatives
State Capitol  Building                                  Re:    Validity  of order of
Austin,  Texas                                                  Texas Highway      Commis-
                                                                sion lowering    prima
                                                                facie reasonable     safe
Dear   Speaker     Daniel:                                      speed

        On December    4, you requested    our opinion as to the statutory   authority
of the Texas Highway     Commission     to administratively  alter speed limits on
Texas highways     which had been set by the Legislature.       At the time of your
request   the Highway   Department   had taken no formal action.      Later,  on
December     4th the Highway   Department    did adopt a Minute Order providing
as follows:

                 “WHEREAS,      the President   of the United      States has
                 declared  that a crisis  exists as a result       of an energy
                 shortage;  and

                 “WHEREAS,      he has called upon the Governors   of the
                 States to reduce   the maximum   speed limits of motor
                 vehicles  in order to conserve  fuel; and

                 ‘WHEREAS,      he has asked for     the cooperation    of the
                 people by voluntarily  reducing      speed in an effort to
                 conserve  fuel; and

                 “WHEREAS,       the Governor  of Texas has joined the
                 President   in urging the people of Texas to conserve
                 fuel by driving   slower,  and believes a significant
                 amount of fuel can be saved as a result; and




                                          p.   803
The Honorable   Price   Daniel,   Jr.,   page   2 (H-175)




            “WHEREAS,      the people of Texas have responded       to
            the challenge   of the President  and the Governor,     and
            by voluntary   compliance    have reduced the eighty-five
            percentile   maximum     speed; and

            “WHEREAS,       safety requires  that a reduction       of the
            maximum     speed limit be had to more closely          conform
            to the speeds actually    in use by the majority       of Texans;
            and

            “WHEREAS,     the Governor   of Texas has        requested  the
            State Highway   Commission   to determine        under applicable
            law whether,   under these circumstances,          the maximum
            speed limit ought to be reduced;

            “NOW,    THEREFORE,          the State Highway    Commission
            finds as follows:

                   “1. Its engineering    and traffic     investigation
                   reveals   that the majority     of drivers    in Texas
                   are driving   at substantially     lower speeds as a
                   result of the recent request by the President
                   and by the Governor     that they do so, to con-
                   serve fuel in the crisis     situation    that now exists.

                   ‘2. Such engineering     and traffic investigation
                   reveals,  therefore,    that the present   prima
                   facie maximum      speed limit is greater     than that
                   which is reasonable     and safe under the afore-
                   mentioned   conditions.

                   “3.   That the State Highway Commission      finds,
                   based upon such investigation,    that a reasonable
                   and safe prima facie maximum      speed limit on
                   all Highway   Routes within the State is 55 miles
                   per hour.




                                         p.   804
The Honorable      Price   Daniel,    Jr.,    page      3 (H-175)




                “THEREFORE,         the State Highway Commission      hereby
                declares   and fixes the maximum       reasonable  and safe
                prima facie maximum         speed limits on all Highway Routes
                in the State, both within and outside of the limits of incor-
                porated cities,    to be 55 miles per hour.

                “The provisions     of this Minute Order amend the provisions
                of all previous   Minute Orders which establish      limits higher
                than those specified     above to the extent they conflict  with
                this Minute Order,      until such time as this Minute Order is
                canceled   for reasons    of it no longer being necessary   or
                desirable.

                “BE IT FURTHER       ORDERED       by the State Highway Com-
                mission  that the State Highway Engineer       proceed    in the
                most feasible   and economical     manner with assembling
                material  and manufacturing     signs to implement      this
                change,  and then proceed    to erect appropriate     signs
                showing the maximum      speed limits established      herein. ”

      We therefore   treat your question as asking specifically           the authority   of
the Department   to adopt the above Minute Order No. 68228.

        The Texas statutes   concerning    speed limits are found in Article          XIX of
Article   6701d, Vernon’s   Texas   Civil Statutes,   most recently amended          in 1971.
(The following   references   are to sections    of that Article.)

      Section     166 (b) provides:

                        “No person    shall drive a vehicle     on a highway at
                a speed greater    than is reasonable      and prudent under
                the conditions   and having regard      to the actual and poten-
                tial hazards   then existing.     In every event speed shall
                be so controlled    as may be necessary        to avoid colliding
                with any person,     vehicle   or other conveyance      on or
                 entering the highway     in compliance     with legal require-
                ments and the duty of all persons        to use due care.”




                                             p.   805
The Honorable        Price    Daniel,    Jr.,     page 4 (H-175)




       The validity     of a similar  provision  in the Penal Code was upheld in
Eaves v. State of Texas,         353 S. SV. 2d 231 (Tex. Crim.  1961) and the validity
of the specific   provision    has been upheld, against attack that it was too vague,
by Attorney     General    Opinion M-495 (1969) relying    upon the Eaves decision.

      Section      166(a) provides.in       part:

                         “No person shall drive a vehicle         on a highway at
                 a speed greater      than is reasonable     and prudent      under
                 the circumstances       then existing.     Except when a special
                 hazard    exists that requires     lower speeds for compliance
                 with paragraph      (b) of this Section,    the limits specified   in
                 this Section or established      as hereinafter      authorized
                 shall be lawful;     but any speed in excess      of the limits
                 specified    in this Section or established      as hereinafter
                 authorized     shall be prima ticie     evidence   that the speed
                 is not reasonable      or prudent and that it is unlawful:

                        “1.    Thirty    (30) miles      per hour   in any urban   district;

                           “2.   Seventy    (70) miles per hour during the daytime
                 and sixty-five       (65) miles per hour during the nighttime          for
                 any passenger         car r motorcycle,     or motor-driven      cycle
                 on any State or Federal          numbered highway outside any urban
                 district,     including    farm-and/or    ranch-to-market      roads,
                 and sixty (60) miles per hour during the daytime and fifty-
                 five (55) miles per hour during the nighttime             for any pas-
                 senger      car, motorcycle,       or motor-driven    cycle on all
                 other highways         outside any urban district;

                       “3.  Sixty (60) miles per hour for all other vehicles
                 on any highway   outside any urban district; . . . .”

       Section     167(a),    (amended     by Acts       1971, 62nd Leg.,   p. 767,    ch.     83),
provides:




                                                p. 806
The Honorable      Price   Daniel,   Jr.,    page      5 (H-175)




                       “Whenever     the State Highway        Commission      shall
             determine      upon the basis of an engineering           and traffic
             investigation      that any prima facie maximum             speed limit
             hereinbefore       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 the high-
             way system,        taking into consideration        the width and
             condition     of the pavement      and other circumstances           on
              such portion     of said highway as well as the usual traffic
             thereon,     said State Highway        Commission       may determine
             and declare      a reasonable     and safe prima facie maximum
              speed limit thereat or thereon,          and another       reasonable
              and safe speed when conditions           caused by wet or incle-
              ment weather       require it, by proper        order of the Commis-
              sion entered on its minutes,          which limits,      when appro-
              priate signs giving notice thereof           are erected,      shall be
              effective   a,t such intersection      or other place or part of
              the highway     system at all times or during hours of day-
              light 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 rules established         in Paragraph      (b) of Section
              166, nor to establish       a speed limit higher than seventy
               (70) miles per hour; and provided            further   that the speed
               limits for vehicles      described    in Paragraphs        a, b, and
              c of Subdivision      5 of Subsection     (a) of Section 166 shall
              not be increased.

                       “By wet or inclement  weather  is meant conditions
                of the pavement   or roadway caused by precipitation,
                water,   ice or snow which make driving   thereon   unsafe
                and hazardous.   ”

       Although    there were similar    provisions  in s 8 of Art.   827a, V. T.P. C.,
5 167 of Art.   6701d, authorizing    the Commission     to make determinations      that
speed limits    provided   by 5 166 as prima facie reasonable      was greater   or less
than a reasonable      or safe speed under conditions    found to exist,   was first




                                            p.   807
The Honorable       Price   Daniel,    Jr.,     page   6 (H-175)




enacted in 1963 and was the subject of two opinions             of this office issued
that year.      Attorney   General   Opinion C-11 (1963) was addressed           to the
constitutionality      d the proposed    enactment.     Referring    to the rule that
the Legislature       may delegate    powers if it has prescribed       sufficient   stan-
dards to guide the discretion        conferred,    it was concluded     that:

                       ‘I. . . . In the quoted portions       of the proposed
               Act,   the Legislature      has given clear and explicit
               instructions      to the State Highway    Commission       as to
               the criteria     to be applied in determining      a reasonable
               and safe maximum         prima facie speed limit.        In Sub-
               section    (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.

                        ” . . . .

                         “In view of the foregoing,         it is the opinion of this
                office    that the delegation     of authority     to the State High-
                way Commission,           contained   in House Bill 50, is suffi-
                ciently     limited and contains      sufficiently    explicit   instruc-
                tions,     so  as  not to constitute   an   unlawful    delegation    of
                legislative      power. ”

        Attorney   General     Opinion C-99 (1963) was rendered      after the adoption
of the bill and concluded       that it gave authority  to the State Highway Commission
“to alter maximum        speed limits and establish     minimum     speed limits on limited-
access    or controlled-access       highways   within or without the limits of an incor-
porated    city, town or village      , . . . ”

       The question   therefore    which we must answer is whether        the quoted lan-
guage of § 167 is sufficient    to confer upon the Commission       authority  to issue an
order   lowering  the prima facie reasonable      speed limit state-wide,      or whether,
to the contrary,   its authority   is limited to specific localities.




                                              p. 808
The   Honorable      Price    Daniel,   Jr.,    page 7 (H-175)




       Were this a question    of first impression,   we would be inclined   to construe
§ 167 to authorize   the Commission,     where it found the necessary   facts to exist,
to issue a state-wide    change in the prima facie speed limit.      We are certainly
sympathetic    to the laudable  purpose which prompted     the adoption of the Minute
Order on December       4.

         The Texas Highway         Commission         is a creature     of the Legislature.       Chapter
1. Title    11~6, Vernon’s      Texas Civil Statutes.         Its powers     are those conferred       upon
it by the Legislature.         In determining        what its powers are over the speed of
vehicles    upon the Highway        we are necessarily          required    to determine     the intent
of the Legislature       in the adoption       of Article    XIX of Article     6701(d).    One of the
cardinal    rules of determining         legislative     intent is that, where the Legislature
re-enacts     a statute    in substantially      the same language as a pre-existing             statute
that has been interpreted         either     by acourt     of last resort     or by executive     order,
it is presumed       to have intended       that the new enactment         should receive      the same
construction     as the old one.       See 53 Tex. Jur. 2d,Statutes,             $192, pp. 294 - 298
and cases cited.

       Thus, for instance,  in Humble oil & Refining                Co.   v.   Calvert,   414 S. W. 2d
172 (Tex.  1967), the Supreme   Court said:

                “A statute  of doubtful meaning that has been construed
                by the proper   administrative    officers,  when se-enacted
                without any substantial     change in verbiage,   will ordinarily
                  receive    the same   construction.    ”

        In 1943, $8 of Article   827a, Vernon’s     Texas Penal Code, the predecessor
of Article    6701d, $ 5 166 and 167, after specifying   speed limits for the state high-
ways,    provided:

                         “The State Highway        Commission    shall have the
                  power and authority       upon the basis of an engineering
                  and traffic  investigation     to determine  and fix the maxi-
                  mum, reasonable      and prudent speed at any road or high-
                  way intersections,       railway  grade crossings,     curves,
                  hills,  or upon any other part of a highway,         less than




                                               p. 809
The Honorable       Price     Daniel,   Jr.,        page   8 (H-175)




                the maximum      hereinbefore    fixed by this Act, taking
                into consideration     the width and condition of the pave-
                ment and other circumstances          on such portion of said
                highway as well as the usual traffic       thereon.     That
                whenever     the State Highway     Commission    shall deter-
                mine and fix the rate of speed at any said point upon
                any highway at a less rate of speed than the maximum
                hereinbefore      set forth in this Act and shall declare       the
                maximum,       reasonable    and prudent speed limit thereat
                by proper     order of the Commission      entered on its min-
                utes, such rate of speed shall become effective           and
                operative    at said point on said highways when appro-
                priate signs giving notice thereof are erected          under
                the order of the Commission         at such intersection     or
                portion   of the highway. ” (Emphasis      added)

        The language      of 5 167a of Article   6701d, V. T. C. S., comparable       to that
quoted above from 5 8 of Article          827a, V. T. P. C., is: “Whenever        the State
Highway     Commission       shall determine    upon the basis of an engineering       and
traffic  investigation.     . . under the conditions      found to exist at any intersection
or other place or upon any part of the highway system,               taking into considera-
tion the width and conditibn         of the pavement    and other circumstances       on such
portion   of said highway as well as the usual traffic thereon.            . e . ” It is our
opinion that the two provisions         are substantially    the same and rhat the intent
of the Legislature      in enacting    § 167 and its various amendments        was to give to
the Highway Commission            the same authority     to alter speed tirnirs as was grantee
by $ 8 of Article     827a of the Penal     Code.

       On September           22, 1942, the State Highway Deparrmezt        aiop:ed   itsXn=e Gw
No.   19656, reciting        an engineering  and traffic investigation     ar.2 finding that the
maximum        reasonable      and prudent speed of motor vehicies  011 & highways
comprising       the state    highway  system  should be reduced to 35 --iles per hour.

           One of our most honored   and respected  predecessors, Attorney Generai
Gerald      C. Mann, issued his Opinion No.. O-4996 dated March 4, 1943, on the
validity     of that order and concluded  with the statement:




                                               p.    810
The Honorable     Price    Daniel,     Jr.,   page   9 (H-175)




                      “From      a careful reading        of the above statutory
              provision     granting the Highway           Commission         the autho-
              rity to determine       what are maximum             reasonable       and
              prudent speeds upon certain              sections    and points of the
              Texas highways,         we are impressed           with the belief that
              the wording      of the statute      itself   does not show an inten-
              tinn to give the Highway Commission                  authority      to estab-
              lish a new speed limit of general              application       on all the
              many thousands of miles            of State Highways,           but rather
              indicates    a contrary      intent.      The obvious intent of the
              grant is to empower          the Commission          to do what the
              Legislature      itself could not practicably            do: to deter-
              mine and fix maximum             safe speed limits         (below the
              general    maximum       limits)     at particular      ‘road or high-
              way intersections,         railway      grade crossings,          curves,
              hills’ or upon any other particular               sectinn of highway
              which,    because of predetermined              local--not      general--
              conditions,      might present        extraordinary       hazards      tog
              traffic   safety. ”

       Despite his recognition       of the “patriotic     motives    which impelled    its
passage!‘,   nevertheless,     Attorney     General    Mann found that the order “goes
beyond the authority      granted,    and in effect,    attempts    to repeal a general
penal law passed by the Legislature,           and substitute     in its place an order
passed by an administrative         board”,   and thus the order was invalid.          By
its Minute Order No. 19879 dated March 8, 1943, the Commission                     acceded
to&e Attorney     General’s     opinion and rescinded       its prior order of September
22, 1942.

        Despite   the fact that 30 years have intervened      and the Legislature    has
had many occasions        to revise the language   to give to the State Highway Com-
mission    authority   to adjust speed limits   state-wide   when conditions    require
it, the Legislature      has not done so.   To the contrary,    it has added $167 to
Article   6701d by Acts 1963, 58th Leg.,      p. 455, ch. 161, and later amended it in
1971.




                                          p. 811
.       .




        The   Honorable   Price   Daniel,   Jr.,    page    10 (H-175)




                We therefore    feel compelled    to conclude    that the Legislature  agreed
        with the interpretation     placed upnn the statutory      language by Attorney    General
        Mann and did not intend it to have the broader           meaning which would be neces-
        sary to uphold the Commission’s         order of December       4, 1973. It is our opinion,
        therefore,   that Minute Order No. 68228 was in excess of the State Highway
        Department’s     authority   and is therefore   invalid.

                                             SUMMARY

                               Minute Order No. 68228 was in excess of the
                      State Highway    Department’s authority and is therefore
                      invalid.

                                                    Very    truly   yours,




        APPROVED:
    Y



    L/w DAVID M. KENIJALL,
        Opinion Committee
                                     Chairman




                                                   p. 812
