 .. OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                                 June 24,2002



The Honorable M.P. “Dexter” Eaves                        Opinion No. JC-05 17
Victoria County Criminal District Attorney
2 10 West Constitution                                   Re:      Whether    section  623.011     of the
Victoria, Texas 77901                                    Transportation   Code provides      the Texas
                                                         Department of Transportation with discretion to
                                                         decide whether to issue a permit authorizing an
                                                         oversize or overweight motor vehicle to operate
                                                         on public roads (RQ-0487-JC)


Dear Mr. Eaves:

         Prior to its codification in 1995, the statutory predecessor to section 623.011 of the
Transportation Code provided that the Texas Department of Transportation (the “Department”)
“shall” issue permits allowing oversize or overweight motor vehicles to operate on certain public
roads. See Act ofMay29,1989,71st         Leg., R.S., ch. 4889 1,1989 Tex. Gen. Laws 1661,1661-62
(former article 6701d-11, section 5B(a), Revised Civil Statutes), repealed by Act of May 1, 1995,
74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1871. Since the purportedly
nonsubstantive codification in 1995, section 623.011 of the Transportation Code provides that the
Department “may” issue such a permit. TEX. TRANSP.CODEANN. f~623.01 l(a) (Vernon Supp. 2002).
Citing the Texas Supreme Court’s decision in Fleming Foods of Texas, Inc. v. Rylander, you ask
whether this change of language means that the Department is no longer required to issue permits:
“Did the Legislature in the adoption of the Transportation Code and the change of the language from
‘shall’ to ‘may’ grant discretionary authority to [the Department] in the issuance of such permits?“’
See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,286-87 (Tex. 1999). Under Fleming
Foods, where unambiguous provisions of a purportedly nonsubstantive codification cannot be
reconciled with prior law, the codification’s plain language must be effectuated. See id. at 286.
Because the term “may” is ambiguous, however, Fleming Foods does not control, and we may look
to prior law to construe section 623 .O11 of the Transportation Code. Consistently with the prior law,
section 623.011 does not provide the Department with discretion to issue permits for oversize or
overweight commercial vehicles to applicants who have complied with the statutory requirements
for registration, filed security, and paid necessary fees.




        ‘Letter from Honorable M.P. “Dexter” Eaves, Victoria County Criminal District Attorney, to Honorable
John Comyn, Attorney General of Texas (Dec. 3 1,200l) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable M.P. “Dexter” Eaves - Page 2 (JC-05 17)




        Section 623.011 of the Transportation Code pertains to the Department’s    authority to permit
the operation of oversize and overweight vehicles on certain public roads:

                   (a) The department may issue a permit that authorizes the
               operation of a commercial motor vehicle, trailer, semitrailer, or
               combination of those vehicles, or a truck-tractor or combination of a
               truck-tractor and one or more other vehicles:

                        (1) at an axle weight that is not heavier than the weight equal
               to the maximum allowable axle weight for the vehicle or combination
               plus a tolerance allowance of 10 percent of that allowable weight; and

                      (2) at a gross weight that is not heavier than the weight equal
               to the maximum       allowable gross weight for the vehicle or
               combination plus a tolerance allowance of five percent.

                   (b) To qualify for a permit under this section:

                       (1) the vehicle must be registered under Chapter 502 for the
               maximum gross weight applicable to the vehicle under Section
               621.101, not to exceed 80,000 pounds;

                         (2) the security   requirement   of Section 623.012 must be
               satisfied; and

                       (3) a base permit fee of $75, any additional fee required by
               Section 623 .Ol 11, and any additional fee set by the department under
               Section 623.0112 must be paid.




                   (d) When the department issues a permit under this section, the
               department shall issue a sticker to be placed on the front windshield of the
               vehicle above the inspection certificate issued to the vehicle. . . .




TEX. TRANSP. CODE ANN. 9 623.01 l(a), (b), (d) (V emon Supp. 2002); see also id. &j 623.0113
(Vernon Supp. 2002) (explaining that, in certain circumstances, permit issued under section 623.011
does not authorize oversize or overweight vehicle operation on “the national system of interstate and
defense highways” and bridges for which “a maximum weight and load limit has been established
and posted”); .017(a) (Vernon 1999) (providing that Department “may issue” annual permit
authorizing movement of oversize vehicle “used to carry cylindrical bales of hay”). “A person who
The Honorable   M.P. “Dexter” Eaves - Page 3 (JC-05 17)




holds a permit issued under” section 623.011 but who violates chapter 623, subchapter B commits
a misdemeanor offense. Id. 8 623.019(a)-(b) (Vernon 1999).

          A county has no authority to permit or to impose additional requirements on a vehicle that
has a permit from the Department under section 623.011. With respect to county highways, “other
than state highways and public roads in the territory of a municipality,” a county commissioners
court, through its county judge, “may issue a permit” for transporting an “overweight, oversize, or
overlength commodity,” for operating the superheavy or oversize equipment necessary to transport
such a commodity, or for operating overweight vehicles. See id. 8 623.01 S(a) (Vernon 1999); see
also id. 9 623.018(c) (allowing county to issue annual permit to dealer in implements of husbandry).
But, “[i]f a vehicle has a permit issued under” section 623.011, a commissioners court is prohibited
from issuing its own permit, charging an additional fee for, or otherwise regulating or restricting the
vehicle’s operation because of weight. Id. 8 623.018(d)( 1). A commissioners          court is further
prohibited from requiring the owner or operator to “execute or comply with a road use agreement
or indemnity agreement, to make a filing or application, or to provide a bond or letter of credit other
than the bond or letter of credit” section 623.012 prescribes. Id. 5 623.018(d)(2). Thus, as you
suggest, vehicles that have been issued a permit from the Department under section 623.011 “have
been immune from further permit requirements of individual counties.” Request Letter, supra note
 1, at 1. In your opinion, the Department has permitted excess loads upon county roads that “are not
built to withstand such weight[,] much less our load limit bridges,” and counties have been unable
to protect the roads or to receive adequate compensation for the resulting damage. Id. at l-2.

         As you point out, section 623.011 was codified in 1995. See Request Letter, supra note 1,
at 1; see also Act of May 1,1995,74th Leg., R.S., ch. 165, 8 1, sec. 623.011, 1995 Tex. Gen. Laws
1025, 175 l-52. Prior to its codification, the relevant statute provided that the Department “shall
issue permits” for oversize or overweight vehicles. See Act of May 29, 1989, 71 st Leg., R.S., ch.
488,§ 1,1989 Tex. Gen. Laws 1661,1661-62 (former article 6701 d- 11, section 5B(a), Revised Civil
Statutes), repealed by Act of May 1, 1995,74th Leg., R.S., ch. 165, 8 24(a), 1995 Tex. Gen. Laws
1025, 1871.      The legislature intended any changes made by the 1995 codification to be
nonsubstantive.   See Act ofMay 1,1995,74th Leg., R.S., ch. 165,§ 25,1995 Tex. Gen. Laws 1025,
1871.

         But because the 1995 codification changed the word “shall” to “may,” you believe
codification was substantive. In your view, the Department now has discretion to issue permits
under section 623.011 and, conceivably, could decline to issue permits and defer to a county whose
roads will be affected. See Request Letter, supra note 1, at 2. You cite as support the Texas
Supreme Court’s 1999 decision in Fleming Foods of Texas, Inc. v. Rylander. See id.; see also
Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,286-87 (Tex. 1999). Prior to the Supreme
Court’s decision in Fleming Foods, we could have accepted a statement of nonsubstantive
codification “at face value.” Tex. Att’y Gen. Op. No. JC-0245 (2000) at 3. In Fleming Foods,
however, the Supreme Court concluded that a codification that was intended to be nonsubstantive
had, in fact, substantively altered the statute because the codification’s plain language was
unambiguous    and could not “be reconciled with prior law.” Fleming Foods, 6 S.W.3d at 286.
The Honorable   M.P. “Dexter” Eaves - Page 4 (JC-05 17)




“When there is no room to interpret or construe the [codified statute] as embodying the old,” a court
will give “full effect” to the current law. Id. “General statements of the Legislature’s intent cannot
revive repealed statutes or override the clear meaning of a new, more specific statute.” Id.

         The word “may” in the codified section 623.011 of the Transportation Code is ambiguous.
As this office previously has stated, in construing a statute, “the use of the word ‘may’ as opposed
to ‘shall”’ generally indicates “discretion or choice between two or more alternatives, but the context
in which the word appears must be the controlling factor.” Tex. Att’y Gen. LO-93-60, at l-2 (citing
BLACK’S LAW DICTIONARY979 (6th ed. 1990)). The Code Construction Act, chapter 3 11 of the
Government Code, indicates that the word “may” can have one of two meanings unless the context
requires a different meaning: “‘May’ creates discretionary authority or grants permission or a
power.” TEX. GOV’T CODE ANN. 8 311.016(l) (V emon 1998) (emphasis added); accord HOUSE
RESEARCHORG., BILL ANALYSIS, Tex. S.B. 884,75th Leg., R.S., at 1 (1997). In some contexts, the
word “may” means “‘to have authority to’ or ‘to be permitted to.“’ Id. at 2 (quoting BRYAN GARNER,
MODERNLEGAL USAGE 98,354 (1987)).


         We conclude that the term “may” in section 623.011 of the Transportation Code authorizes
the Department to issue the permits to qualifying applicants rather than authorizes the Department
to determine whether it will issue a permit to a qualifying applicant. See TEX. GOV’T CODEANN. 5
311.016(l) (V emon 1998); TEX. TRANSP.CODEANN. 8 623.01 l(a) (Vernon Supp. 2002). Given the
ambiguity of the word “may,” Fleming Foods does not preclude us from construing section 623 .O11
consistently with its statutory predecessor, which stated that the Department “shall issue” permits.
Thus, the 1995 codification did not alter the meaning of section 623.01 l(a)‘s substance.

         Moreover, subsection (b) of section 623.011 of the Transportation Code appears to entitle
a qualifying applicant to a permit from the Department and, conversely, to delegate to the
Department a nondiscretionary      task. See TEX. TRANSP. CODEANN. 8 623.011 (b) (Vernon Supp.
2002). As section 623.011 (b) makes clear, an applicant for a permit must meet three requirements:
(1) demonstrate that the vehicle is appropriately registered; (2) file security in the amount of
$15,000, payable to the Department and “the counties of this state”; and (3) pay a base permit fee
of $75, as well as any additional fees. Id. 5 623.01 l(b); see id. 5 623.012(b)(l) (Vernon 1999)
(explaining security requirement). Nothing in chapter 623, subchapter B provides the Department
a basis for distinguishing   among applicants that “qualify for a permit” by meeting these three
requirements.    Id. 5 623.01 l(b) (Vernon Supp. 2002); see XII OXFORDENGLISHDICTIONARY 972
(sense 4a) (2d ed. 1989) (defining “qualify” as “[t]o make legally capable; to endow with legal
power or capacity; to give a recognized status to”). Accordingly, once an applicant has satisfied the
three requirements, it is qualified for a permit, and the Department must issue one.
The Honorable M.P. “Dexter” Eaves - Page 5 (JC-0517)




                                      SUMMARY

                        Section 623.011 of the Transportation Code requires the
               Department of Transportation to issue a permit authorizing the
               operation of an oversize or overweight motor vehicle if the applicant
               meets the statutory requirements.    See TEX. TRANSP. CODE ANN. 8
               623.01 l(a) (Vernon Supp. 2002).




                                             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

Kyrnberly K. Oltrogge
Assistant Attorney General, Opinion Committee
