          THE        AITORNEY        GENERAL
                        OFTEXAS



                         April 11, 1962

Hon. D. C. Greer                  Opinion NO. ~-1306
State Highway Engineer
Texas Hi hway Department          Re : Whether the Highway De-
Austin 1f+, Texas                      partment has the authority
                                       to purchase, erect and
                                       maintain certain highway
                                       markers pursuant to High-
                                       way Commission Minute
                                       Order No. 50806, and
DearMr.   Greer:                       related question.
          You have asked this office to render an opinion as
to whether or not the Highway Department has the authority to
purchase, erect and maintain certain hi hwa markers pursll,ant
to Highway Commission Minute Order NO. 508otk You have fur-
ther asked whether or not Section 79 of Article VIII, Texas
Constitution, would present any bar to utilizing Highway Fund
moneys in carrying out the proposed program.
          Relevant portions of Highway Commission Minute
Order No. 50806 are set forth below:
          "WHEREAS, signs marking points of interest
     and potential destination are an integral and
     necessary part of a modern highway; and
           4,. . .

          "WHEREAS, our system of roadside parks and
     turnouts have proven to be a factor in the reduc-
     tion of accidents by providing a safe place for
     drivers to park, relax, stretch and otherwise
     avoid the effects of driver fatigue; and
          "WHEREAS, the erection of the aforementioned
     markers In roadside parks and turnouts would
     discourage stopping on the shoulders of the high-
     ways near such points and would encourage more
     drivers to -ton and relax in such ~8rks anA
     turnouts thereby furthering the cause of safety
     on our highways;
Hon. D. C. Greer, page 2 (WW-1306)




         "NOW, THEREFORE, BE IT ORDERED that the
    State Highway Commission hereby finds and deter-
    mines that such markers should be erected, that
    when such markers are erected they will cons-
    titute an integral part of the highway system
    which is necessary to provide adequate and
    satisfactory service to a great portion of
    the traveling public and that they will
    contribute toward safer use of the highways.
    . . .
          From the foregoing it can be seen that the Texas
Highway Commission has made an administrative finding of
record, to the effect that the highway markers here under
discussion will constitute an integral part of the highway
        and that they will contribute toward safer use of
%z%!ghways.
         Article 6674d, Vernon's Civil Statutes, states in
part:
          "Ali further improvement of said State
     Highway System with Federal aid shall be made
     under the exclusive and direct control of the
     State Highway Department and with appropriations
     made by the Legislature out of the State Highway
     Fund. . . .'
          Article 6674a defines "improvement" as including
"construction, reconstruction or maintenance, or partial con-
struction, reconstruction or maintenance and the making of
all necessary plans and surveys preliminary thereto."
           By entry of the Minute Order, the Texas Highway
Commission expressed its view that the contemplated marker
program was an "improvement" to the highway system of the
State of Texas, and that the markers would become an integral
part of the system, contributing materially to the safety of
drivers using the highways of Texas. We may not dispute that
finding. The reason is amply stated by Chief Justice
McClendon of the Austin Court of Civil Ap eals in Johnson
v. Fernuson, 55 S.W. 26 153 (Civ.App. 1932P :
.




    Hon. D. C.,Greer, page 3 (~~-1306)




              "In matters of judgment touching the
         Highway Commiss1onez.s'Sunctions, theirs,
         and not ~thatof another, is supreme. Cer-
         tainly their acts other than those of a
         purely ministerial nature should not be
         stayed at the hands of the courts, and the
         Important functions of the department thereby
         impeded or impaired, except upon verified
         allegations of fact showing unequivocally
         that they are exceeding the bounds of their
         legal authority: Their acts in the exercise
         of an honest discretion must be respected
         when untainted by fraud . . .or such abuse
         of discretion as under the authorities
         would avoid the same.('
    The General Appropriation Act of the 57th Legislature,
    under the heading HIGHWAY DEPARTMENT, provides, in Item
    13:
              'For all other operating expenses involved
         in establishing, planning, constructing, and
         maintainlng a system of State Highways as con-
         templated and set forth in Chapter I1 Title 116,
         Revised Civil Statutes of 1925 . . .
    It is thus clear that the Legislature, In making an appro-
    priation for the Highway Department, has not attempted to
    spell out the precise purposes for which the moneys may be
    used. This function is left for the Highway Commission.
    And if the Highway Commission, in its discretion, determines
    that a particular type of highway marker is a proper lm-
    provement to the highway system of Texas, that determination
    must stand, barring a proper appeal to the courts.
              There is, of course, one other ground upon which
    the proposed expenditure may be challenged, and that is un-
    constitutionality. Article VIII, Section 7a, of the Texas
    Constitution, contains the following provisions:
              "Subject to legislative appropriation, al-
         location and direction, all net revenues remaining
         after payment of all refunds allowed by law and
         expenses of collection derived from motor vehicle
         registration fees, and all taxes. except gross
Hon. D. C. Greer, page 4 (~~-1306)




     production and ad valorem taxes, on motor fuels
     and lubricants used to propel motor vehicles over
     public roadways shall be used for the sole purpose
     of acquiring rights-of-way, constructing, main-
     taining and policing such public roadways, and
     for the administration of such laws as may be
     prescribed by the Legislature pertaining to the
     supervision of traffic, and safety on such roads."
No other Constitutional provision appears to bear upon the
particular type of expenditure here under examination.
          As has already been mentioned, in Minute Order
No. 50806 the State Highway Commission found that such
markers will constitute an integral part of the highway
system which is necessary to provide adequate and satis-
factory service. It is the opinion of this office that
the word "integral" as used in the finding, operates to
bring the proposed expenditure within the provisions of
Section 7a of Article VIII, Texas Constitution. The ra-
tionale of Johnson v. Ferguson, supra, would control,
regarding the force of an administrative finding by the
Highway Commissioners. Neither Section 7a of Article
VIII, nor any other provision of the Texas Constitution
prohibits carrying out the proposed program with money in
the Highway Fund.


                        SUMMARY
          Under the findings contain"4 in Minute
          Order No. 508~6 of the State Highway
          Commission, the Commission has author-
          ity to purchase, erect and maintain
          certain highway markers as integral
          parts of the highway system of the State
          of Texas, out of the general approprl-
          ation for the State Highway Department
          Neither Section 7a of Article VIII; nor
          any other provision of the Texas Cons-
Hen. D. C. Greer, page 5 (~~-1306)




         titution, would prohibit the Highway
         Department from carrying out the pro-
         posed program with money In the High-
         way Fund.
                             Very truly yours,




APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman




:XVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.
