Honorable Ben Atwell
Chairman
Interim State and Local
  Tax Committee, and
  House Standing Revenue
  and Taxation Committee
1002 Dallas Federal Savings Bldg.
Dallas, Texas
                                  Opinion No. C-783
                                  Re:   Whether an increase
                                        in the motor fuel
                                        tax may be used to
                                        remove billboards
                                        and junkyards from
                                        land adjacent to
                                        certain highways or
                                        to screen from view
                                        said junkyards.
Dear Mr. Atwell:
       You ask our opinion as to
            11     whether or not a one cent increase
       in the'gasoline tax (i.e..,the'3/b allotted
       to highways under tne Constitution) could be
       used to comply with the terms of the Federal
       Highway Beautification Act of 1965.”
       Our opinion is that no portion of the tax now imposed
on gasoline by the present provisions of Chapter 9 of Title
122-A, Taxation-General, Vernon's Civil Statutes, or any
increase of that tax, may be used to comply with any of the
provisions of the Federal Highway Beautificat~ionAct of 1965
which provide for either,
       1)   the removal of signs, displays and devices
            from land adjoining certain highways and


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            which land is outside of the right-of-way
            of said highways,
            or

       2)   the screening from view from said highways
            of outdoor junkyards situated on land out-
            side of the right-of-way of said highways
            by screening done on land outside of said
            right-of-way, or the removal of such junk-
            yards situated on land outside of the right-
            of-way of said highways.
       The Federal Highway Beautification Act of 1965 was
approv,ed October 22, 1965. It is Public Law 89-285, 79
Stat. 1028, and is comprehended within Title 23, U.S.C.A.,
Highways. Among other provisions, it provides that Federal-
aid highway funds apportioned on or after January 1, 1968,
to any State which the Secretary determines has not made
provision for effective control of:
      ~1) ll. . . the erection and maintenance along
          the Interstate System and the primary system
          of outdoor advertising signs, displays, and
          devices which are within six hundred and
          sixty feet of the nearest edge of the right-
          of-way and visible from the main traveled
          way of the system, . . ."
            and,
       2)   ‘I. . . the establishment and maintenance
            along the Interstate System and the primary
            system of outdoor junkyards, which are with-
            in one thousand feet of the nearest edge of
            the right-of-way and visible from the main
            traveled way of the system, . . .'
shall be reduced by 10 per centum of the amounts which such
States would otherwise have received from the Federal govern-
ment under Section 104 of said Title 23. Sections 131b and
136b, Title 23.
       The term "effective control" relative to outdoor signs,
displays and devices means the removal of all of them within
the prescribed distance, except those which conform to the
standards promulgated by the Secretary; this term as related
to outdoor junkyards means the removal or screening from view
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.            .

    .   I.




                 Honorable Ben Atwell, Page 3 (C-783)


                 from the highway of those out of doors within the prescribed
                 distance. The Secretary is the Secretary of Commerce. 23
                 U.S.C.A. Sec. 101(a).
                        The purposes for which the revenues from the-Texas
                 motor fuel (gasoline) tax now imposed by Chapter 9 of Title
                 122-A,
                      J Taxation-General, Vernon's Civil Statutes, may be
                 used, together with the allocation of such revenues, are
                 stated in Article VIII, Section 7-a of our state Constitution
                 which reads as follows:

                              "Subject to legislative appropriation,
                        allocation and direction, all net revenues re-
                        maining after payment of all refunds allowed by
                        law and expenses of collection derived from
                        motor vehicle registration fees, and all taxes,
                        except gross 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,maintaining, and policing,
                        such public roadways, and for the administra-
                        tion of such laws as may be prescribed by the
                        ‘Legislaturepertaining to the supervision of
                        traffic and safety on such roads; and for trie
                        payment of the principal and interest on
                        county and road district bonds or warrants
                        voted or issued prior to January 2, 1939 and
                        declared eligible prior to January 2, 1945,
                        for payment out of the County and Road District
                        Highway Fund under existin law; provided,
                        however, that one-fourth (t ) of such net rev-
                        enue 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 con-
                        strued as authorizing the pledging of the
                        State's credit for any purpose." (Emphasis
                        added)
                        We do not find a statutory definition of a highway
                 right-of-way, but such right is generally held to be the
                 mere right to pass over the land of another. Right-of-Way
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Honorable Ben Atwell, Page 4 (c-783)


                  City Oil, Gas & Mfg. Co., 106 Tex. 94,
                  (1913) * B 0Iton v. Byck 611 Co., 114 S.W.
                  Civ. A;p. 1936          dlsm.); Words and
Phrases, Permanent Edition, "Rigi&%%ay",      Vol. 37A,
p. 410 et seq.
       A highway roadway is defined in Article 67old Section
13(c), Vernon's Civil Statutes, as follows:

       way i~~~~ve~~a~~~~,ne;r;ha~rp~~~~~~r~~yau~:~h70r
       vehicular travel. In Che event a highway in-
       cludes two (2) or more separate roadways the
       term 'roadway' as used herein shall refer to
       any such roadway separately but not to all
       such roadways collectively."
This seems to be the generally accepted definition. Words
and Phrases, Permanent Edition, "Roadway", Vol. 37A, pp.
525-528.
       In State v. City of Austin, 160 Tex. 348, 331 S.W.
2d 737, 741 (1960) the Court reiterated the holding of
prior decisions whirein it held that,
            I,, . . the main purposes of roads and streets
       are for travel and transportation. . . ."
       Pursuant to Article VIII, Section 7-a of our Consti-
tution that portion of the net revenue allocated for high-
way purposes which might be applied in any conceivable
manner to the Federal Highway Beautification Program, may
be used only for,

       (1)   acquiring rights-of-way,

       (2)   constructing, maintaining, and policing
             such public roadways, and

       (3)   administration of such laws as may be
             prescribed by the Legislature pertaining
             to the supervision of traffic and safety
             on such roads.
       This Section of our Constitution was adopted in 1946.
This was just after the end of World War II, when our
nation was still in the throes of recovery from that war.

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Honorable Ben Atwell, Page 5 (C-783)


We do not believe that the people of this State who adopted
this provision at that time contemplated that the revenue
derived from the motor vehicle registration fees and taxes
on motor fuel and lubricants be used in the beautification
of land adjoining the highways. The applicable rule of
constitutional construction Is stated in River Oaks Garden
Club v. City of Houston, 370 S.W.2d 851, 854, (Tex. Sup.
'Lgb3) as follows:
            "The fundamental rule for the government
       of courts in the interpretation or construc-
       tion of a Constitution is to give effect to
       the intent of the people who adopted it."
       We do not perceive how any of the above authorized
classes of expenditures authorized by our Constitution
can be construed to include either the removal of signs,
displays, and devices or junkyards from lands adjacent
to our State highways and which are outside of the high-
way rights-of-way and which comprise no portion of our
State highway system, or how such classes of expenditures
can be construed to authorize the screening from view from
said highways of outdoor junkyards situated on land out-
side of the right-of-way of said highways by screening
done on land outside of the right-of-way.
       Opinion C-595 (1965) of the present Attorney General
made certain holdings relating to the authority of the State
Highway Department to purchase interests in strips of land
necessary for the restoration, preservation and enhancement
of the scenic beauty adjacent to Federal-aid highways in
Texas. That opinion does not consider, in any aspect, the
source of the monies available for such acquisitions, which
is the subject of this present opinion.
                      SUMMARY
            The provisions of Article VIII, Section
       7-a of our State Constitution prohibit the'use
       of any of the net revenues allocable thereunder
       to highway usage to either,
            1)   the removal of signs, displays
                 and devices from land adjoining
                 certain highways and which land
                 is outside of the right-of-way
                 of said highways,
                 or
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Honorable Ben Atwell,    Page 6 (c-783)



              2)   the screening from view from
                   said highways of outdoor junk-
                   yards situated on land outside
                   of the right-of-way of said
                   highways by ,screeningdone on
                   land outside of said right-
                   of-way, or the removal of
                   such junkyards situated on
                   land outside of the right-of-
                   way of said highways.
                                       Yours very truly,
                                       WAGGONER CARR
                                       Attorney General



                                       By:


WEA/fb
APPROVED:
OPIRION COMMITTEE
W.z.s[Eert,        Chairman
James McCoy
W. 0. Shults
Marietta Payne
William Colburn
Carroll Graham
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright




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