                                    February   13, 1975

The Honorable B. L. DeBerry                            Opinion No.       H-   525
State Highway Engineer
Texas Highway Department                               Re: Authority of State High-
11th & Brazes                                          way Department to make ex-
Austin,  Texas 78701                                   penditures requested to
                                                       qualify for projects under
                                                       23 U.S. C. sec. 405.

Dear Mr.   DeBerry:

         You have requested our opinion as to whether the Highway
Department    can expend State highway funds pursuant to article 6674d-1,
V. T. C. S., in order to qualify for and secure federal funds pursuant to
23 U.S. C. sec. 405.    You advise that the roadways to be covered are
basically city streets and county roads which are not part of the state
highway system of Texas.

       The peeltinent provisions         of 23 U.S.   C.   sec.   405,   are as follows:

                   (a) The Federal-aid   safer roads demonstration
               program shall consist of all public roads or segments
               thereof not on a Federal-aid   system needing improve-
               ments to correct safety hazards selected or designated
               by each State subject to the approval of the Secretary.

                     (b) . . . including projects to improve highway
                marking and signing,      to eliminate roadside obstacles,
                to eliminate hazards at railroad-highway        grade crossings
                and to correct high-hazard       locations, identified by
                accident reporting,     traffic records and hazards analysis
                systems    . . . .

                      . .   .   .




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The Honorable         B. L.   DeBerry        page 2       (H-525)




                           (d) For the purposes of this section, the term
                      “public road” means any road under the jurisdiction
                      of and maintained by a public authority and open to
                      public travel and which is not on a Federal-aid
                      system.

            Article   6674d-1,   V. T. C. S.,      provides:

                           From and after the effective date of this Act,
                      all moneys appropriated     by the Congress  of the
                      United States and allocated by the Secretary     of
                      Agriculture  of the United States to the State High-
                      way Department for expenditure on roads not on the
                      system of State Highways,     may be expended by and
                      through the State Highway Department in conjunction
                      with the Bureau of Public Roads, for the improvement
                      of such roads and said Federal Funds may be matched,
                      or supplemented    by such amounts of State funds as may
                      be necessary   for proper construction   and prosecution
                      of the work . State funds shall not be used exclusively
                      for the construction   of roads not on the System of
                      State Highways,    the expenditure of State funds on said
                      roads being limited to cost of construction    and
                      engineering,   overhead and other costs on which the ap-
                      plication of Federal Funds is prohibited or impractical.
                       (Emphasis added)

            Article   6672,   V. T. C. S.,    provides:

                          Any funds for public road construction in this
                      State appropriated  by the Federal Government   shall
                      be expended by and under the supervision   of the
                      Department only upon a part of the system of State
                      Highways.   (Emphasis added)

            Article   6674d-1 repealed        any statute in conflict to the extent of such
conflict.      Acts   1939, 46th Leg.,        p. 579.  Since article 6672 was passed in




                                              p.   2369
The Honorable    B. L.   DeBerry       page 3     (H-525)




1917, it has therefore been modified by 6674d-1 and no longer prohibits
the use of state funds to match or supplement federal grants for roads
not on the system of State highways.

       Article   8,   section   7a,   of the Texas    Constitution   states:

                      Subject to legislative    appropriation,   allo-
                 cation 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
                 productions    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,    maintaining,
                 and policing such public roadways,         and for the adminis-
                 tration of such laws as may be prescribed          by the
                 Legislature    pertaining to the supervision      of traffic
                 and safety on such roads: and for the payment of the
                 principal and interest on county and road district
                 bonds or warrants voted or issued prior to Janua,ry 2,
                 1939, and declar’ed eligible prior to January 2, 1945,
                 for payment out of the County and Road District Highway
                 Fund under existing law; provided,         however,    that one-
                 fourth (l/4) of such net revenue from the motor fuel tax
                 shall be allocated to the Available       School Fund; and,
                 provided,    however,    that the net revenue derived by
                 counties from motor vehicle registration          fees shall
                 never be less than the maximum amounts allowed to
                 be retained by each County and the percentage allowed
                 to be retained by each County under the laws in effect
                 on January 1, 1945.       Nothing contained herein shall be
                 construed as authorizing       the pledging of the State’s
                 credit for any purpose.       (Emphasis added)

        This section requires certain revenues to be expended only for
“public roadways. ‘I Since 23 U. S. C. sec. 405 applies only to “public
roads or segments thereof, ” expenditures   of State funds pursuant to




                                          p.   2370
 The Honorable   B. L.   DeBerry      page 4    (H-525)




 article 6674d-1 for the purpose of supplementing    these federal        funds are
 consistent  with article 8, section 7a of the Texas Constitution.

                                   SUMMARY

                     Article   6674d-1 provides the State Highway
                 Department     authority to expend State funds to
                 supplement    or match federal funds received
                 pursuant to    23 U.S. C. sec. 405.

                                                    Very   truly yours,




                                                     OHN L. HILL
                                                            General       of Texas




-k--04/
 DAVID   M.   KENDALL,     First   Assistant




 C. ROBERT HEATH.         Chairman
 Opinion Committee




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