Does the Texas DOT have to issue an oversize or overweight vehicle permit if the applicant meets the requirements?

Plain-English summary

The Victoria County Criminal District Attorney asked whether section 623.011 of the Transportation Code gives the Texas Department of Transportation discretion to decide whether to issue a permit for an oversize or overweight motor vehicle to operate on public roads. The question came from a wording change. Before the Transportation Code was codified in 1995, the predecessor statute said the Department "shall" issue these permits. The 1995 codification, which the Legislature intended to be nonsubstantive, changed "shall" to "may." The District Attorney's county was concerned that the Department had been permitting heavy loads onto county roads and bridges not built to carry them, and he asked whether the switch to "may" let the Department refuse a permit and defer to an affected county.

The Attorney General concluded that section 623.011 does not give the Department that discretion. It must issue the permit to any applicant who has complied with the statutory requirements. The District Attorney relied on the Texas Supreme Court's decision in Fleming Foods, which held that when a codification's unambiguous plain language cannot be reconciled with prior law, the new language controls despite a label calling the codification nonsubstantive. The opinion reasoned that Fleming Foods did not control here because the word "may" is ambiguous, not unambiguous. While "may" generally indicates discretion, the Code Construction Act and ordinary usage recognize that in some contexts "may" means simply "to have authority to" or "to be permitted to." Given that ambiguity, the opinion looked to prior law, which used "shall," and to the Legislature's stated intent that the 1995 codification not change the substance.

The opinion reinforced that reading with subsection (b) of section 623.011, which sets three requirements an applicant must meet: the vehicle must be properly registered for its maximum gross weight, the applicant must file the required security ($15,000, payable to the Department and the counties of the state), and the applicant must pay a base permit fee of $75 plus any additional fees. Nothing in the relevant subchapter gives the Department a basis to distinguish among applicants who meet those three requirements. So once an applicant qualifies, the Department must issue the permit. The opinion also explained that a county has no authority to issue its own permit, charge an additional fee, or impose road-use agreements, bonds, or other conditions on a vehicle that already holds a section 623.011 permit.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The district attorney and counties worried about road damage (what the opinion held): The opinion held that the Department of Transportation must issue an oversize or overweight permit under section 623.011 to a qualifying applicant; the 1995 change from "shall" to "may" did not hand the Department discretion to refuse and defer to a county. It also confirmed that a county may not add its own permit, fee, or conditions on a vehicle that already holds a section 623.011 permit.

Trucking companies and operators of oversize or overweight loads (what the opinion held for them): The opinion held that an applicant who meets the three statutory requirements (registration, security, and fees) is entitled to the state permit, and the Department's task in issuing it is nondiscretionary.

Common questions

Did the change from "shall" to "may" let TxDOT start refusing oversize permits?
No. The opinion held the 1995 codification was nonsubstantive and that, because "may" here is ambiguous, the statute still requires the Department to issue a permit to any applicant who meets the requirements.

What does an applicant have to do to get the permit?
The opinion identified three requirements in subsection (b): the vehicle must be registered for its maximum gross weight, the applicant must file the required security, and the applicant must pay the base fee of $75 plus any additional fees.

Can a county add its own permit or fee for a permitted vehicle?
No. The opinion explained that if a vehicle holds a section 623.011 permit, a commissioners court may not issue its own permit, charge an additional fee, or require road-use or indemnity agreements, filings, bonds, or letters of credit beyond the security section 623.012 prescribes.

Why didn't the Fleming Foods case control the result?
Because Fleming Foods applies when a codification's plain language is unambiguous and cannot be reconciled with prior law. The opinion held that "may" is ambiguous, so the court was free to read section 623.011 consistently with its "shall" predecessor.

Background and statutory framework

Section 623.011 of the Transportation Code authorizes the Department to issue a permit for the operation of an oversize or overweight commercial motor vehicle within stated axle-weight and gross-weight tolerances. Tex. Transp. Code Ann. § 623.011(a) (Vernon Supp. 2002). Subsection (b) sets the conditions to qualify: registration under chapter 502 for the maximum gross weight applicable under section 621.101 (not to exceed 80,000 pounds), satisfaction of the security requirement of section 623.012, and payment of a $75 base permit fee plus any additional fees. Id. § 623.011(b); § 623.012(b)(1) (Vernon 1999). When the Department issues the permit, it issues a windshield sticker. Id. § 623.011(d). Related provisions limit where such a permit authorizes travel and address particular permits. Id. § 623.0113; § 623.017(a) (Vernon 1999). A permittee who violates chapter 623, subchapter B commits a misdemeanor. Id. § 623.019(a)-(b) (Vernon 1999).

A county has no authority to permit or impose additional requirements on a vehicle that holds a section 623.011 permit. For county highways other than state highways and roads within a municipality, a commissioners court, through its county judge, may issue a permit for moving an overweight, oversize, or overlength commodity. Id. § 623.018(a) (Vernon 1999); § 623.018(c). But if a vehicle has a permit issued under section 623.011, the commissioners court is prohibited from issuing its own permit, charging an additional fee, or otherwise regulating or restricting the vehicle's operation because of weight, id. § 623.018(d)(1), and from requiring road-use or indemnity agreements, filings, applications, bonds, or letters of credit other than the security section 623.012 prescribes. Id. § 623.018(d)(2).

Before codification, the predecessor statute said the Department "shall issue permits" for oversize or overweight vehicles, and the Legislature intended the 1995 codification to be nonsubstantive. The codified text says the Department "may" issue a permit. The opinion held that "may" is ambiguous. As the office had stated, "may" generally indicates discretion, but context controls; and the Code Construction Act, chapter 311 of the Government Code, recognizes that "may" creates discretionary authority or grants permission or a power. Tex. Gov't Code Ann. § 311.016(1) (Vernon 1998). Because "may" is ambiguous, the rule of Fleming Foods, under which an unambiguous codification that cannot be reconciled with prior law is given full effect, did not preclude reading section 623.011 consistently with its "shall" predecessor. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286-87 (Tex. 1999). Reinforced by subsection (b)'s entitlement of a qualifying applicant to a permit, the opinion held the Department's duty to issue is nondiscretionary once the three requirements are met.

Citations

Statutes:

• Tex. Transp. Code Ann. § 623.011(a), (b), (d); § 623.0113; § 623.017(a); § 623.019(a)-(b); § 623.018(a), (c), (d)(1), (d)(2); § 623.012(b)(1)
• Tex. Gov't Code Ann. § 311.016(1)

Cases:

• Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286-87 (Tex. 1999)

Prior Attorney General materials referenced: Tex. Att'y Gen. Op. No. JC-0245 (2000); Tex. Att'y Gen. LO-93-60.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0517
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0517.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

June 24, 2002

The Honorable M.P. "Dexter" Eaves Opinion No. JC-0517
Victoria County Criminal District Attorney
210 West Constitution Re: Whether section 623.011 of the
Victoria, Texas 77901 Transportation Code provides the Texas
Department of Transportation with discretion to
decide whether to issue a permit authorizing an
oversize or overweight motor vehicle to operate
on public roads (RQ-0487-JC)

Dear Mr. Eaves:

Prior to its codification in 1995, the statutory predecessor to section 623.011 of the Transportation Code provided that the Texas Department of Transportation (the "Department") "shall" issue permits allowing oversize or overweight motor vehicles to operate on certain public roads. See Act of May 29, 1989, 71st Leg., R.S., ch. 488, § 1, 1989 Tex. Gen. Laws 1661, 1661-62 (former article 6701d-11, section 5B(a), Revised Civil Statutes), repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1871. Since the purportedly nonsubstantive codification in 1995, section 623.011 of the Transportation Code provides that the Department "may" issue such a permit. TEX. TRANSP. CODE ANN. § 623.011(a) (Vernon Supp. 2002). Citing the Texas Supreme Court's decision in Fleming Foods of Texas, Inc. v. Rylander, you ask whether this change of language means that the Department is no longer required to issue permits: "Did the Legislature in the adoption of the Transportation Code and the change of the language from 'shall' to 'may' grant discretionary authority to [the Department] in the issuance of such permits?"[1] See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286-87 (Tex. 1999). Under Fleming Foods, where unambiguous provisions of a purportedly nonsubstantive codification cannot be reconciled with prior law, the codification's plain language must be effectuated. See id. at 286. Because the term "may" is ambiguous, however, Fleming Foods does not control, and we may look to prior law to construe section 623.011 of the Transportation Code. Consistently with the prior law, section 623.011 does not provide the Department with discretion to issue permits for oversize or overweight commercial vehicles to applicants who have complied with the statutory requirements for registration, filed security, and paid necessary fees.

Section 623.011 of the Transportation Code pertains to the Department's authority to permit the operation of oversize and overweight vehicles on certain public roads:

            (a) The department may issue a permit that authorizes the operation of a commercial motor vehicle, trailer, semitrailer, or combination of those vehicles, or a truck-tractor or combination of a truck-tractor and one or more other vehicles:

                    (1) at an axle weight that is not heavier than the weight equal to the maximum allowable axle weight for the vehicle or combination plus a tolerance allowance of 10 percent of that allowable weight; and

                    (2) at a gross weight that is not heavier than the weight equal to the maximum allowable gross weight for the vehicle or combination plus a tolerance allowance of five percent.

            (b) To qualify for a permit under this section:

                    (1) the vehicle must be registered under Chapter 502 for the maximum gross weight applicable to the vehicle under Section 621.101, not to exceed 80,000 pounds;

                    (2) the security requirement of Section 623.012 must be satisfied; and

                    (3) a base permit fee of $75, any additional fee required by Section 623.0111, and any additional fee set by the department under Section 623.0112 must be paid.

            . . . .

            (d) When the department issues a permit under this section, the department shall issue a sticker to be placed on the front windshield of the vehicle above the inspection certificate issued to the vehicle. . . .

TEX. TRANSP. CODE ANN. § 623.011(a), (b), (d) (Vernon Supp. 2002); see also id. § 623.0113 (Vernon Supp. 2002) (explaining that, in certain circumstances, permit issued under section 623.011 does not authorize oversize or overweight vehicle operation on "the national system of interstate and defense highways" and bridges for which "a maximum weight and load limit has been established and posted"); § 623.017(a) (Vernon 1999) (providing that Department "may issue" annual permit authorizing movement of oversize vehicle "used to carry cylindrical bales of hay"). "A person who holds a permit issued under" section 623.011 but who violates chapter 623, subchapter B commits a misdemeanor offense. Id. § 623.019(a)-(b) (Vernon 1999).

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. With respect to county highways, "other than state highways and public roads in the territory of a municipality," a county commissioners court, through its county judge, "may issue a permit" for transporting an "overweight, oversize, or overlength commodity," for operating the superheavy or oversize equipment necessary to transport such a commodity, or for operating overweight vehicles. See id. § 623.018(a) (Vernon 1999); see also id. § 623.018(c) (allowing county to issue annual permit to dealer in implements of husbandry). But, "[i]f a vehicle has a permit issued under" section 623.011, a commissioners court is prohibited from issuing its own permit, charging an additional fee for, or otherwise regulating or restricting the vehicle's operation because of weight. Id. § 623.018(d)(1). A commissioners court is further prohibited from requiring the owner or operator to "execute or comply with a road use agreement or indemnity agreement, to make a filing or application, or to provide a bond or letter of credit other than the bond or letter of credit" section 623.012 prescribes. Id. § 623.018(d)(2). Thus, as you suggest, vehicles that have been issued a permit from the Department under section 623.011 "have been immune from further permit requirements of individual counties." Request Letter, supra note 1, at 1. In your opinion, the Department has permitted excess loads upon county roads that "are not built to withstand such weight[,] much less our load limit bridges," and counties have been unable to protect the roads or to receive adequate compensation for the resulting damage. Id. at 1-2.

As you point out, section 623.011 was codified in 1995. See Request Letter, supra note 1, at 1; see also Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 623.011, 1995 Tex. Gen. Laws 1025, 1751-52. Prior to its codification, the relevant statute provided that the Department "shall issue permits" for oversize or overweight vehicles. See Act of May 29, 1989, 71st Leg., R.S., ch. 488, § 1, 1989 Tex. Gen. Laws 1661, 1661-62 (former article 6701d-11, section 5B(a), Revised Civil Statutes), repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1871. The legislature intended any changes made by the 1995 codification to be nonsubstantive. See Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 25, 1995 Tex. Gen. Laws 1025, 1871.

But because the 1995 codification changed the word "shall" to "may," you believe codification was substantive. In your view, the Department now has discretion to issue permits under section 623.011 and, conceivably, could decline to issue permits and defer to a county whose roads will be affected. See Request Letter, supra note 1, at 2. You cite as support the Texas Supreme Court's 1999 decision in Fleming Foods of Texas, Inc. v. Rylander. See id.; see also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286-87 (Tex. 1999). Prior to the Supreme Court's decision in Fleming Foods, we could have accepted a statement of nonsubstantive codification "at face value." Tex. Att'y Gen. Op. No. JC-0245 (2000) at 3. In Fleming Foods, however, the Supreme Court concluded that a codification that was intended to be nonsubstantive had, in fact, substantively altered the statute because the codification's plain language was unambiguous and could not "be reconciled with prior law." Fleming Foods, 6 S.W.3d at 286. "When there is no room to interpret or construe the [codified statute] as embodying the old," a court will give "full effect" to the current law. Id. "General statements of the Legislature's intent cannot revive repealed statutes or override the clear meaning of a new, more specific statute." Id.

The word "may" in the codified section 623.011 of the Transportation Code is ambiguous. As this office previously has stated, in construing a statute, "the use of the word 'may' as opposed to 'shall'" generally indicates "discretion or choice between two or more alternatives, but the context in which the word appears must be the controlling factor." Tex. Att'y Gen. LO-93-60, at 1-2 (citing BLACK'S LAW DICTIONARY 979 (6th ed. 1990)). The Code Construction Act, chapter 311 of the Government Code, indicates that the word "may" can have one of two meanings unless the context requires a different meaning: "'May' creates discretionary authority or grants permission or a power." TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 1998) (emphasis added); accord HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. S.B. 884, 75th Leg., R.S., at 1 (1997). In some contexts, the word "may" means "'to have authority to' or 'to be permitted to.'" Id. at 2 (quoting BRYAN GARNER, MODERN LEGAL USAGE 98, 354 (1987)).

We conclude that the term "may" in section 623.011 of the Transportation Code authorizes the Department to issue the permits to qualifying applicants rather than authorizes the Department to determine whether it will issue a permit to a qualifying applicant. See TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 1998); TEX. TRANSP. CODE ANN. § 623.011(a) (Vernon Supp. 2002). Given the ambiguity of the word "may," Fleming Foods does not preclude us from construing section 623.011 consistently with its statutory predecessor, which stated that the Department "shall issue" permits. Thus, the 1995 codification did not alter the meaning of section 623.011(a)'s substance.

Moreover, subsection (b) of section 623.011 of the Transportation Code appears to entitle a qualifying applicant to a permit from the Department and, conversely, to delegate to the Department a nondiscretionary task. See TEX. TRANSP. CODE ANN. § 623.011(b) (Vernon Supp. 2002). As section 623.011(b) makes clear, an applicant for a permit must meet three requirements: (1) demonstrate that the vehicle is appropriately registered; (2) file security in the amount of $15,000, payable to the Department and "the counties of this state"; and (3) pay a base permit fee of $75, as well as any additional fees. Id. § 623.011(b); see id. § 623.012(b)(1) (Vernon 1999) (explaining security requirement). Nothing in chapter 623, subchapter B provides the Department a basis for distinguishing among applicants that "qualify for a permit" by meeting these three requirements. Id. § 623.011(b) (Vernon Supp. 2002); see XII OXFORD ENGLISH DICTIONARY 972 (sense 4a) (2d ed. 1989) (defining "qualify" as "[t]o make legally capable; to endow with legal power or capacity; to give a recognized status to"). Accordingly, once an applicant has satisfied the three requirements, it is qualified for a permit, and the Department must issue one.

                                   SUMMARY

            Section 623.011 of the Transportation Code requires the Department of Transportation to issue a permit authorizing the operation of an oversize or overweight motor vehicle if the applicant meets the statutory requirements. See TEX. TRANSP. CODE ANN. § 623.011(a) (Vernon Supp. 2002).

                                        Very truly yours,

                                        JOHN CORNYN
                                        Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable M.P. "Dexter" Eaves, Victoria County Criminal District Attorney, to Honorable John Cornyn, Attorney General of Texas (Dec. 31, 2001) (on file with Opinion Committee) [hereinafter Request Letter].