Texas AG says state funds cannot be used for toll roads

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The issue of whether certain voter-approved funding can be used for Texas toll projects is just as complicated as it was last fall, one lawmaker says.

“The discussions are all good, but the bottom line is today’s opinion just put us back at square one,” said Rep. Joe Pickett, D- El Paso.

In response to Pickett’s request for an opinion on the matter, Attorney General Ken Paxton said Proposition 1 and Proposition 7 funds cannot be used for toll roads.

Voters approved the amendments in 2014 and 2015, respectively, with the provision that the funds only be used for “constructing, maintaining, and acquiring rights-of-way for public roadways other than toll roads.”

Although Paxton reiterated that in his opinion issued Monday, he said since there is no constitutional definition of “toll road,” he can’t determine whether the Commission can use those funds on non-tolled portions of toll projects. 

The fact that some roads are tolled for portions of their route, but not the entirety or that some lanes of a road may be tolled while others are not, further complicates his ability to issue an opinion, Paxton said.

Ultimately, he said it is up to Commission to make sure that if they withdraw Proposition 1 and Proposition 7 funds from the State Highway Fund and place them in a general fund for a toll project, they must make sure the money is spent “as constitutionally required.”

Pickett said the complexity of toll projects will make it difficult for TxDOT to ensure that specific funding doesn’t go toward the tolled portion of a road, as required by law.

“It’s going to be difficult, even today we have so many different pots of money for one project regardless whether it’s a toll or not,” said Pickett, former chairman of the House Transportation Committee. “It’s going to be impossible. If you do this, just be very mindful of trying to keep it separate.”

Voters approved Proposition 1 in 2014, which allowed half of oil and gas severance taxes to go toward the State Highway Fund.

In 2015, Texans voted to approve Proposition 7, which dedicates a portion of the state’s sales tax as well as motor vehicles sales and rental tax to non-tolled projects as part of the State Highway Fund.

A total of $734 million in Proposition 1 funding, taken from oil and gas severance taxes, was transferred to the State highway fund for fiscal year 2018, according to the Texas Department of Transportation. The comptroller is expected to transfer $2.3 billion in Proposition 7 sales tax money to TxDOT this fall.

Both of the propositions require the taxes to only be spent on roadway projects that are not tolled.

Without clear guidance from Paxton, Pickett is encouraging the Texas Transportation Commission act soon rather than waiting for lawmakers to weigh in on the issue during the next Legislative session.

“I suggest the commission adopt a policy on how to handle projects that are in the Unified Transportation Plan for the state,” Pickett wrote in a letter he sent to Texas Transportation Commission Chairman Bruce Bugg on Tuesday. “The legislature may have their own opinion within a year or so, but I feel it necessary to take action before then if possible.”

Pickett sent his request to Paxton last November, around the time Lt. Gov. Dan Patrick asked TxDOT to revise its Unified Transportation Program plan to not include additional toll lanes. The plan at one point included 15 managed toll lanes.

Gov. Greg Abbott also said last fall that he wants TxDOT to build more roads and unclog congestion “in a way that I promised and that is without adding more toll roads.”

The Commission has since delayed the use of those funds on projects with tolled elements, including the U.S. Highway 183 project and an Interstate 35 plan that had been slated to include tolls.

“We are reviewing the opinion and appreciate the guidance Attorney General Paxton has provided in this matter,” a TxDOT spokesperson said in a statement.

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