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Mixed bag legal opinion over co-mingling of funds for toll roads

Mixed bag legal opinion over co-mingling of funds for toll roads
Attorney General can’t figure out what a toll road is
By Terri Hall
May 19, 2018

Texas Attorney General Ken Paxton issued a mixed legal opinion regarding whether or not Prop 1 and Prop 7 funds that are prohibited from being used on toll roads could be co-mingled with projects that have toll lanes in them. Rep. Joe Pickett requested the opinion in response to the public backlash when it was discovered the Central Texas Regional Mobility Authority was attempting to use Prop 1 and Prop 7 funds on its US 183 toll project.

To the average voter, when it states: “Revenue transferred to the state highway fund under this subsection may be used only for constructing, maintaining, and acquiring rights-of-way for public roadways other than toll roads,” it’s pretty clear that means any part of a road, including the right of way, cannot be a toll road. But apparently that’s not clear to the Attorney General whose legal opinion chose to punt rather than protect taxpayers from an accounting trick being used by toll bureaucrats to skirt the Texas Constitutional Amendments overwhelmingly approved by Texas voters in 2014 and 2015.

The Attorney General’s office claims it cannot determine what the definition of a toll road is so it cannot definitively determine whether or not Prop 1 and Prop 7 funds could be used on non-tolled portions of toll roads. However, when you read the opinion, it cites both constitutional statutes to say the funds can only be used “to construct, maintain, or acquire rights of way for roads other than toll roads.” The entire right of way of a highway is encompassed in this language which clearly means these funds cannot be used on any portion of a project that contains a toll element within the right of way of a project that uses Prop 1 and Prop 7 funds.

So while the AG opinion says it cannot be determined, we support the current Texas Transportation Commission decision to keep the Texas Department of Transportation (TxDOT) and toll agencies from co-mingling any Prop 1 and Prop 7 funds with any project that has a toll element. From the voters’ perspective, that’s what they voted for - to prohibit the use of these funds on toll roads. In the mind of most voters, they saw this as a prohibition on more toll roads. They want their roads fixed without new taxes. That’s what they should get and, in our view, that’s clearly what the statutes say. It angers voters when policy makers try to contemplate ways to get around a prohibition they voted for (in overwhelming numbers) and still try to use those funds to expand a road with toll elements in it.

The Attorney General tells the legislature it needs to clarify what a toll road means in statute in order for his office to determine if this accounting trick being used by TxDOT and unelected toll bureaucrats is legal or not. Governor Greg Abbott (who is also an attorney and former Attorney General and Supreme Court Justice) and Lt. Governor Dan Patrick both clearly stated that co-mingling Prop 1 and Prop 7 funds in a project with toll lanes does not comply with the constitutional intent nor the legislative intent of this law. No further action should be required than to enforce the law and protect taxpayers from an unconstitutional use of non-toll road funds on toll roads.