Can a Texas county require its own overweight truck permit on top of the state permit?

TX AG Opinion GA-0509: Can a county require its own overweight-truck permit on top of the state permit?

Plain-English summary

A state representative asked whether a county can require an overweight vehicle to obtain a local operating permit in addition to the overweight-truck permit issued by the Texas Department of Transportation. The question grew out of programs that some East Texas counties had set up requiring overweight vehicles to hold a local permit before operating in the county, which operators in the forest products industry and others found duplicative and burdensome.

The opinion walked through the Transportation Code's framework. The Code sets statutory limits on vehicle weight and width, lets the Texas Transportation Commission set maximum gross weights and widths, and lets county commissioners courts set load limits on county roads and bridges. But it also allows vehicles exceeding those limits to operate under a permit system. Section 623.011 creates a uniform statewide permit, issued by the Department, that lets an overweight vehicle operate throughout the state under one permit; the applicant designates each county where the vehicle will operate and pays an added fee per county, the Department notifies each designated county clerk, and the fee revenue is shared with the designated counties.

The decisive provision is section 623.018(d)(1). It says that if a vehicle has a permit issued under section 623.011, a commissioners court may not issue a permit under section 623.018, charge an additional fee, or otherwise regulate or restrict the vehicle's operation because of weight. The opinion read that as a clear answer: a county has no authority to require a local permit in addition to the state permit. The opinion noted this matched two prior AG opinions and a Texas court of appeals decision (Scurlock Permian Corp. v. Brazos County), which held a county may not require a county permit when the vehicle has a valid state permit. So counties are prohibited from requiring an overweight-vehicle operator to obtain a county permit once the operator has a Department permit under section 623.011.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Transportation Code's oversize and overweight permit provisions (chapters 621 and 623) and the related county-road authority statutes have been amended since 2007. Anyone dealing with overweight-permit requirements today should check the current statutes and any later case law rather than relying on the 1999-2006 versions cited here.

Who this opinion affected (as of 2007)

County commissioners courts: The opinion told counties they could not require an overweight-vehicle operator to get a county permit, charge an extra weight-based fee, or otherwise restrict the vehicle because of weight, once the operator held a state permit under section 623.011.

Overweight-vehicle operators and the forest products industry: The opinion meant operators who obtained the statewide Department permit (and designated the counties of operation) did not also have to obtain duplicative local permits to run in those counties.

The Texas Department of Transportation: The opinion confirmed the Department's section 623.011 permit functions as a single statewide authorization, with fees shared among the designated counties, rather than a floor on top of which counties could layer their own permits.

Common questions

Can a county make an overweight truck get a local permit if it already has a state permit?
No. The opinion concluded a county commissioners court is not authorized to require a county permit when the operator already holds a Department permit under Transportation Code section 623.011.

What statute settles this?
The opinion pointed to section 623.018(d)(1), which bars a commissioners court from issuing a permit, charging an additional fee, or otherwise regulating or restricting an overweight vehicle's operation because of weight once it has a section 623.011 permit.

Don't counties have authority over their own roads?
Yes, to a point. The opinion acknowledged counties can set load limits and regulate traffic on county roads, but that authority is expressly limited by section 623.018(d)(1) when a state permit has issued.

Had this question come up before?
Yes. The opinion noted two prior AG opinions reaching the same result and a Texas court of appeals decision, Scurlock Permian Corp. v. Brazos County, holding a county may not require a county permit when the vehicle has a valid state permit.

Background and statutory framework

The Transportation Code sets statutory load-weight and vehicle-width limits (with an exception for loading agriculture or forestry commodities before processing), authorizes the Texas Transportation Commission to set maximum gross weights and widths, and authorizes county commissioners courts to set load limits on county roads and bridges, while still allowing vehicles exceeding those limits to operate under a permit system (Tex. Transp. Code Ann. § 621.101 (Vernon Supp. 2006); § 621.201 (Vernon 1999); § 621.503(c) (Vernon Supp. 2006); § 621.102 (Vernon Supp. 2006); § 621.202 (Vernon 1999); § 621.301 (Vernon Supp. 2006); §§ 623.011-.019 (Vernon 1999 & Supp. 2006)).

Section 623.011 establishes a uniform statewide permit issued by the Department to operators meeting registration, security, and fee requirements, allowing the vehicle to exceed maximum gross weights by a specified tolerance; the applicant designates each county of operation and pays a per-county fee, the permit does not authorize operation in undesignated counties, the Department notifies each designated county clerk, and the fees are shared with the designated counties (Tex. Transp. Code Ann. § 623.011(a) (Vernon Supp. 2006); § 623.011(b); § 623.011(g); § 623.0111(a) (Vernon 1999); § 623.0111(b) (Vernon 1999); § 623.013(a); § 621.353). A footnote addressed Chambers County, where the Commission has been authorized to let the county issue permits for oversize or overweight vehicles on state highways in that county (Tex. Transp. Code Ann. § 623.252(a) (Vernon Supp. 2006); 43 Tex. Admin. Code §§ 28.100-.102 (2006)).

Counties have authority to make rules for road maintenance, exercise general control over county roads and bridges, regulate traffic, set load limits, and issue county overweight permits, but section 623.018(d)(1) expressly limits that authority by barring a commissioners court from issuing a county permit, charging an added fee, or otherwise regulating or restricting an overweight vehicle because of weight once it has a section 623.011 permit; two prior AG opinions and a court of appeals decision reached the same conclusion (Tex. Transp. Code Ann. § 251.003(a)(1); § 251.016 (Vernon Supp. 2006); § 251.151 (Vernon 1999); § 251.153(a) (Vernon Supp. 2006); § 623.018(a) (Vernon 1999); § 623.018(d)(1); Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 490 (Tex. App.-Houston [1st Dist.] 1993, writ denied)).

Citations

Statutes and regulations:

• Tex. Transp. Code Ann. §§ 621.101, 621.102, 621.201, 621.202, 621.301, 621.353, 621.503(c) (Vernon 1999 & Supp. 2006)
• Tex. Transp. Code Ann. §§ 623.011-.019; §§ 623.011(a), (b), (g), 623.0111(a), (b), 623.013(a), 623.018(a), 623.018(d)(1), 623.252(a) (Vernon 1999 & Supp. 2006)
• Tex. Transp. Code Ann. §§ 251.003(a)(1), 251.016, 251.151, 251.153(a) (Vernon 1999 & Supp. 2006)
• 43 Tex. Admin. Code §§ 28.100-.102 (2006)

Cases:

• Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 490 (Tex. App.-Houston [1st Dist.] 1993, writ denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0509
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0509.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 30, 2007

The Honorable James L. Keffer
Chair, Committee on Ways and Means
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0509

Re: Whether a county may require an overweight vehicle to obtain an operating permit in addition to the permit required by the Department of Transportation (RQ-0517-GA)

Dear Representative Keffer:

You inquire whether a county has the authority to require an overweight vehicle to obtain a local operating permit in addition to the "permits for overweight trucks issued by the Texas Department of Transportation."[1] You inform us that some counties in East Texas have implemented programs requiring overweight vehicles to have such a local permit before operating in the respective county and that the "duplicative regulations [have] become exceedingly burdensome to the livelihood of many in the forest products industry" and others. Request Letter, supra note 1, at 1.

The Texas Transportation Code governs oversize and overweight vehicles operating in Texas. Maximum load weights and maximum vehicle widths are established by statute. See TEX. TRANSP. CODE ANN. §§ 621.101 (Vernon Supp. 2006) (load weight), 621.201 (Vernon 1999) (vehicle width). But see id. § 621.503(c) (Vernon Supp. 2006) (weight limitations in section 621.101 do not apply to the "loading of an agriculture or forestry commodity before the commodity is changed in processing from its natural state"). The Texas Transportation Commission (the "Commission") is authorized to set maximum gross weights and vehicle widths. See id. §§ 621.102 (Vernon Supp. 2006) (maximum weight), 621.202 (Vernon 1999) (maximum width). In addition, county commissioners courts are authorized to establish load limits on county roads and bridges. See id. § 621.301 (Vernon Supp. 2006). Despite the statutory size and weight limits, and grants of authority to the Commission and county commissioners courts to set weight limits for public roads, the Transportation Code authorizes vehicles exceeding these limits to operate in Texas. See id. §§ 623.011-.019 (Vernon 1999 & Supp. 2006).

Section 623.011 establishes a uniform statewide permit system that allows overweight vehicles to operate throughout the state under one statewide permit. See id. § 623.011(a) (Vernon Supp. 2006). These statewide permits are issued by the Texas Department of Transportation (the "Department") to vehicle operators that have complied with statutory requirements for registration, security, and fees. See id. § 623.011(b). Vehicles operating under 623.011 permits are statutorily authorized to exceed maximum allowable gross weights by a specified tolerance. See id. § 623.011(g). Under the permitting scheme, the applicant must designate "each county in which the vehicle will be operated" and pay an additional fee based on the number of counties designated. See id. § 623.0111(a) (Vernon 1999). "A permit issued under section 623.011 does not authorize the operation of the vehicle in a county that is not designated in the application." Id. § 623.0111(b) (Vernon 1999). Once the Department issues a permit under section 623.011, it must notify the county clerk of each county designated in the application. See id. § 623.013(a). And the funds received with the application for a permit under section 623.011 are shared with each county designated in the application. See id. § 621.353.

In addition to having authority over county roads, counties are expressly authorized by the Transportation Code to issue permits for the operation of overweight vehicles over highways of a county. See id. §§ 251.003(a)(1) (commissioners court may "make and enforce all necessary rules and orders for the . . . maintenance of public roads"), 251.016 (Vernon Supp. 2006) (commissioners court "may exercise general control over all roads, highways, and bridges in the county"), 251.151 (Vernon 1999) (commissioners court "may regulate traffic on a county road"), 251.153(a) (Vernon Supp. 2006) (commissioners court "may establish load limits for any county road or bridge"), 623.018(a) (Vernon 1999) (county permit). The statute, however, expressly limits that authority when a permit has been issued by the Department under section 623.011: "If a vehicle has a permit issued under Section 623.011, a commissioners court may not: issue a permit under [section 623.018] or charge an additional fee for or otherwise regulate or restrict the operation of the vehicle because of weight . . . ." Id. § 623.018(d)(1). We believe this statutory limitation on a county's authority to issue a permit for an overweight vehicle provides a clear answer to your query. Under section 623.018(d)(1), a county does not have authority to require a local permit in addition to a permit issued by the Department under section 623.011.

This is not the first time this conclusion has been reached. In fact, in two prior opinions this office has come to the same result. See Tex. Att'y Gen. Op. Nos. JC-0517 (2002) at 3 ("A county has no authority to permit or to impose additional requirements on a vehicle that has a permit from the Department under section 623.011."), GA-0088 (2003) at 7 ("A commissioners court may not impose additional regulations with regard to weight on trucks granted an overweight certificate by the Texas Department of Transportation . . . ."). More importantly, however, a Texas court of appeals has concluded that a county may not require an overweight vehicle to have a county permit if the vehicle has a valid permit issued by the state. See Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 490 (Tex. App.-Houston [1st Dist.] 1993, writ denied) (considering the question under the statutory predecessor to section 623.011). Therefore, in accordance with the clear language of the statute, the prior opinions of this office, and the court of appeals opinion, we again conclude that counties are prohibited from requiring an operator of an overweight vehicle to obtain a permit from the county when the operator has obtained a permit from the Department under section 623.011.

SUMMARY

A county commissioners court is not authorized to require the operator of an overweight vehicle to obtain a permit from the county when the operator has obtained a permit from the Department of Transportation under section 623.011, Texas Transportation Code.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable James L. Keffer, Chair, Committee on Ways and Means, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Aug. 2, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] To the extent you inquire about Chambers County, the Transportation Code expressly authorizes the Texas Transportation Commission to authorize Chambers County "to issue permits for the movement of oversize or overweight vehicles carrying cargo on state highways located in Chambers County." TEX. TRANSP. CODE ANN. § 623.252(a) (Vernon Supp. 2006). The authority has been granted. See 43 TEX. ADMIN. CODE §§ 28.100-.102 (2006) (Tex. Dep't of Transp., Chambers County Permits).