Paxton: State law unclear about restrictions on toll road spending


A legislator had asked Paxton if commingling restricted and unrestricted money on some toll projects is legal.

In a non-binding opinion, the attorney general says the law does not nail down the definition of ‘toll road.’

The opinion leaves open the legality of proposed toll projects, including the U.S. 183 North expansion.

Texas Attorney General Ken Paxton, asked about using restricted state money to help fund toll road projects that include improvements to free lanes, punted on Tuesday.

In a non-binding opinion, Paxton said state law lacks a specific definition of “toll road” and that no case law has been handed down filling in those blanks. Therefore, Paxton wrote, “we cannot determine whether a court would construe Propositions 1 and 7 to allow those monies to be used for ‘toll projects’ when those provisions refer to ‘toll roads.’ “

Paxton’s input was requested this past fall by state Rep. Joe Pickett, D-El Paso. In the wake of the attorney general’s equivocal assessment, Pickett called on the Texas Transportation Commission, which governs the Texas Department of Transportation, to craft its own policy about the funding options for toll roads.

“The Legislature may have their own opinion within a year or so,” said Pickett, former chairman of the House Transportation Committee, “but I feel it necessary to take action before then if possible.”

Proposition 1, passed by voters in 2014, amended the Texas Constitution to direct to TxDOT a certain portion of oil and gas severance taxes. Proposition 7, approved in 2015, likewise changed the state constitution to give TxDOT a portion of state sales tax money.

In both cases, those amendments said the money could be spent only to “construct, maintain or acquire rights of way for public rights-of-way for public roadways other than toll roads.” The amendment also allowed TxDOT to use this new money to pay off some existing road debt.

The problem arose last year when TxDOT and the transportation commission contemplated combining Prop 1 and Prop 7 money — the two amendments currently bring in more than $3.5 billion a year in additional money to TxDOT — with other sources of funding to carry out highway expansions that include tolled lanes.

For instance, the department was considering putting more than $100 million, including, potentially, Prop 1 and Prop 7 revenue, into the U.S. 183 expansion project in Northwest Austin. Under the proposal, the TxDOT tax money would have paid for adding non-tolled lanes to a section of U.S. 183 while borrowed money — to be paid back with toll revenue — would have been used to build toll lanes and toll facilities.

Abbott, Patrick hit the pause button on toll projects.

Toll road opponents have criticized this approach, saying that on a complex road project, separating the expenditures would be difficult if not impossible and that mixing the restricted and unrestricted money would inevitably violate the Texas Constitution.

Terri Hall, a Comal County anti-toll activist and founder of Texans for Toll-free Highways,” called the Paxton ruling a “win” because it explicitly put off limits spending large portions of TxDOT money on toll lanes. Nonetheless, Hall said, voters had something broader in mind when they considered Prop 1 and Prop 7.

“They didn’t want this money to go on toll projects, period,” said Hall, who has been lobbying legislators about tolls for more than a decade. “The voters don’t get into the arcane details of that sort of transportation thinking.”

Pickett, who in some cases has been supportive of toll projects, in his Nov. 7 letter to Paxton said a commingling of funds “would constitute using these sources for something not only not intended, but not allowed.”

Paxton, in his opinion, left the door open to TxDOT doing such commingled projects, but he said that they could not do so “with no mechanism for ensuring that it spends the funds as constitutionally required, that is, only on non-tolled roads.”

In a footnote, Paxton said that there is reason to believe that TxDOT is “able to account for that separately and demonstrate to the public (it is) not using any of the Prop 1 or 7 … money for a toll project.”

Paxton noted that, for the moment at least, the question is not a live one. Shortly after Pickett made his request for the opinion, first Lt. Gov. Dan Patrick and then Gov. Greg Abbott made public statements indicating that they wanted TxDOT to refrain from committing to any new toll road projects. The transportation commission then pulled down more than a dozen proposed projects, including the U.S. 183 expansion and improvements to Interstate 35 through Austin that would include toll lanes.

On Tuesday, State Sen. Kirk Watson, D-Austin, called on Abbott to reverse course and let some toll projects move forward, given that Paxton declined to take off the table commingling of funds.

“It’s my hope that he’ll green-light Central Texas projects, such as the U.S. 183 express lanes and completion of the I-35 Capitol Express, that are essential to achieve his transportation goals,” Watson said.

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