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       OFFICE   OF THE ATTORNEY    GENERAL   OF TEXAS
                          AUSTIN




Honorable Glenn CapEa
Oounty Attorney
sb3on county
Mason, Texas
Dear Sisr



                                                     the Stats




                                     you"r*fer W88 pror5ul-
gate& by the S                       on; evidently   under a
supposed &rant o                     ed in Seation~ 8 0r drt-
                                      Code or Texas, a8 amend-
                                     506, Aota or 1941, 47th
                                    perttaent  parts 0r wh&h

                         Rate ma Speed 0r vehiom3.
                         unlawful. ror any person to oper-
                        otor or other vehlele   upon the
                         Texas at a rote or speed in ex-
                    (60) milea an hour aur%ng the day-
     time, or to drive ox operate a motor or other
     vehiole at a rate of speed in exoess of fifty-rive’
Honorable   Glenn Cams,    Page 2



      (551 miles per hour during the nighttke,            or drive
     or operate    n motor
               . _ .m.     - or  other
                                   -    vehicle   within   the
     corporate iiats      or an incorporated      oity or town,
     or within or through any town or village            not in-
     oor    rated, at a greater rate of speed than thirty
     (3Cfoniles    par hour; provided,      that it &al.1 bo
     unlawful to drive or operuto upon said public high-
     ways a oonmerolal motor vehicle,         truck-traotor,
     trailer,    or semitrailer     as defined in this Aot
     at a rate or speed in exoess or forty-rive            (451
     sidles per hour during the nighttime.           Trovided
     further,    that it shall be unlawful to operate any
     motor vehiole engaged in this State in the busi-
     ness 0r transporting       paosengers for oompensation
     or hire on any highway, road, or thoroughrare not
     privately    owned between cities,      towns, and villages
     at a rate of speed in exoeas of dirty-five            (55)'
     mlles'per    hour.
            uWaytims aa used In thie  hot shall mean a               . ..'
     hali   hourbe~fore sunrise to a half'hour  after sun-
     set,   and nighttime shall man at any other hour.
           "'Provided   further that no person shall drive
    a vehiole on a highway at a speed Greater than is
    reasonable and prudent under ths oonditions         then
    existing,    having regard to the aatual ana potential
    hazards when approaching and crossing an lnterseo-
    tion or a railway grade orossing,       when approaching
    and soing around a ourve, when approaohing a hill
    orest, when traveling      upon any narrow or winding
    roadway, or when speoial hazard exists with respeot
    to pedestrians     or other trafflo   or by reason of
    weather or highway oonditions;.and        speed shall be
    so oontrollsd     as szy be necessary to avoid collid-
    ing with any person, vehlole,       or other oonveyanoe
    on or enteri,ng the highway in oomplianoe with legal
    requirements and the duty of all persons to use
    auf3 oare.

          *'The State Blghway Conmission shall have the
    power and authority    upon the basis of an englneer-
    ing and traffia   investigation   to detsruine and fix
    the maximum, reasonable     and prudent speed at any
    road or highway interscotions,     railway Grade oross-
    ings, ourvea, hills,    or upon any other part of a
    Xonorable               Glenn Cappa, Page 3


                      h&way      leas than the maximum hereinbefore     rired
                      by thls’Aot,    taking ‘into oonslderation   the width
                       and condition    of the pavement and other oiroum-
                       atanoes on suoh portion of said highway as well
                      as the usual traffio      thereon.  That whenever the
                      State Highway Commission shall determine and rlr
                       the rate of epeed at any said point u~ponany high-
                      way at a less rate of speed than the maximumhereln-
                      berore set forth in this Aot and shall deolare the
                      ~maxlmum,reasonable      and prudent speed limit thereat
                      by proper order or the Comuisslon entered on its
                      mlnutea, suah rate of speed shall become effective
                      and operative     at aald point on said highways when
                      appropriate    signs .&loin& notloe thereof are ereated
    .I       ‘,




                       under the order of the Commission at suoh inter-
                       seotion or portion of the hi&way.
-        !




               The order of ‘the State fllghway Commlselon,flxing
                  _




    the general ‘35 mile per, hour speed Uaft,   was pawesed Septen+
    ber 22, 1942, imd is as Zollower
                            *An engineer&    Lana traffia  lnvestlgation    and
                      survey of the Texas Highway System having been made,
                      the a0dsd0n      finds that malntenanoe equipment,
                      materials and supplies neoessary to maintain and
                      prolong the life of the system in Its present con-
                      dition are beooming increasingly     difficult    to ob-
                      tain because of priorities    and other resfrlotions
                      of the Federal GOVernmenti that most of the high-
                      ways oomprlsing the system are vital to the national
                      delense and should be preserved In the best possible
                      menner for auah use; that a reduction       of the maxi-
                      mum speed or motor vehiolee     using suoh highways will
                      dearease the wear and tear upon road surfaoes and
                      at the same time per&t the safe operation of ve-
                      hieles with worn tires whlah oannot be raplaaed.
                             “It 1s therefore     ordered by the Coamtission upon
                      the basis of such engineering, and .traffio       investiga-
                      tlon and survey,     the  t the  maximum reasonable   and
                      prudent speed of motor vehiales        on all highways aom-
                      prising    the State highway System, outside the limits
                      of inoorporated     cities   and towns, be reduoed to a
                                                 .
HOnWable Glenll CappSi Page 4


      speed not In exoess of 35 miles per hour, and the
      State Highway ,%gIneer Is auth0ri20a and ~direated   .
      to prooeed with the emotion   of appropriate   sims
      showing the uaxInua reasonable and prudent speed
      on all highways oon~IsIn(~ the State Ei.#way E.ystm,
      outside the limits of Inoorporated  oities   and towns,
      as not eroeeding 35 miles per hour.”
            From a careful     reading of the above statutory        pro-
vision granting the l&&may ComissIon           thb authority     to de-
termine what me mtimum reasonable and prudeut speeds upon
oertaln seotious      and pointa of the Terns highways, we are-In+
pressed with the belief       that the wording of the statute Itself
does not shoe an Intention        to g.ive the Ilighway Comission        eu-
thority to establish      a hew speed 1Fmit of general       anulicetion
on all the nany thousands of miles of State iii&ways,             but
rather Inhioates      a ooatrary intent.     The obvious In~tent of
the grant Is to empower the Com.mIssIOn to do what the Legis-
lature Itself     could not praotioably     do: to Ceternine md fix
mrixInumsafe speed limits        (below the general~maxfaun limits)
at partioular     “road ,or highway Intersections,     reilway grade
orossi~s,    curves, hIl1f.P or upon my other pertioular            seo-
tion of highway whioh, because of predeteminod           ‘looal--not
general--oondltIons,      might present e.xtraordInary hazards to
twf fro saf sty.
           But the quoted order of the Commission goes beyond
the authority  granted,,~ and in effeot, attempts to repeal a
general penal IJ%Wpassed by the Legislature,     md substitute
in Its plaoe en order passed by an admInIstretIve    board.                    .

           While we reaognize     the patriotio    notioes   whioh im-
pellod Its paseage       yet It Is our opinion that ~said order of
the State Highway 6ommIssIon, fixing         the mexinua speed limit
oh all highways oonprisInS the State Highway system at 35
miles per hour, is in exoess of the ComiesIonrs            authority
and therefore   imtilid.     The Legislature    la now In sooaion and
om nake suoh changes as It deems desirable.
             ale express no opinion oonoerning the oonatitution-
alitg    of the delegation  of authority  oontained In saIia Seotion
6, nor Is this opinion to be oonstrued 3s passfnf, upon the
legality    of other orders of the State EIghwey Co~~5.ssIon fir-
Honorable Glenn Capps, Page 5                     .


ing the maximum speed 13.1&tupon pertIouXar motions OS the
State Ri~hways at 35 miles per hour.

                                          Yours very truly
                                      ATTO~GEEVSI1ALOF   TEXAS




         ATTOXWEY
                G-         C'S TEbi


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