Was the 2001 ballot language for the Texas Mobility Fund amendment legally sufficient?

Plain-English summary

A Texas House committee chair, continuing a question first raised by her predecessor, asked the Attorney General about the ballot wording voters saw back in 2001 when they approved the Texas Mobility Fund. That vote, Proposition 15, added article III, section 49-k to the Texas Constitution. The amendment created the Mobility Fund as a way to finance state highways and let the state issue bonds secured by money in the fund. The same proposition also amended the constitution to drop a requirement that toll revenue be used to repay certain Highway Fund spending.

The concern behind the request was that the Texas Department of Transportation now uses gas-tax revenue from the State Highway Fund on toll projects, and the ballot wording for Proposition 15 did not spell out that connection. So the question was narrow: was the ballot language sufficient?

The AG explained the legal test. Texas courts ask whether ballot language "identifies the amendment, showing its character and scope, that is, its intent, import, subject matter, or theme." The point is to give voters fair notice and let them tell one proposition from another, not to reprint the whole amendment, which courts have said would often be impractical. Voters are also presumed to be familiar with the contents of a measure. The AG noted that for the 2001 election, at least two state publications, the Texas Legislative Council analysis and the House Research Organization report, walked voters through Proposition 15's funding mechanism and its effect on the Highway Fund, including the removal of the toll-repayment limitation.

Applying that standard, the AG concluded a court would likely find the ballot language sufficient. Proposition 15 described creating the Mobility Fund and authorizing grants, loans, and obligations to finance "state highways, turnpikes, toll roads, toll bridges, and other mobility projects," it was the only one of nineteen amendments on that ballot dealing with transportation financing, and the preelection publications had educated the public about its full impact. That the ballot did not include every minor detail did not undermine it. The AG also pointed out, separately, that courts ordinarily do not use ballot language to construe an amendment at all; they look to the language of the amendment itself.

One thing the AG would not do: decide whether any particular revenues are actually being used improperly to fund current toll projects. The opinion described that as requiring the resolution of numerous fact questions outside the scope of the attorney general opinion process.

Currency note

This opinion was issued in 2015 and analyzes a 2001 constitutional amendment and ballot. 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 mentioned here.

What the opinion meant for those who asked

Legislators and those questioning the 2001 vote (as the opinion described it): The opinion described the Proposition 15 ballot language as likely sufficient under the constitutional standard, because it conveyed the amendment's character and scope and set it apart from the other measures on the ballot. It did not treat the ballot's omission of specific funding details as a defect.

Election officials and drafters of ballot propositions (as the opinion described it): The opinion restated the governing test: ballot language is sufficient if it identifies the amendment and shows its character and scope, and it need not reprint the entire amendment or list every detail.

Anyone reading the amendment's meaning (as the opinion described it): The opinion noted that courts ordinarily do not use ballot language to construe a constitutional amendment; they look to the language of the amendment itself to determine its meaning.

Where the AG declined to opine: The opinion expressly did not decide whether any particular revenues are being used improperly to fund current TxDOT toll projects. It described that as turning on numerous fact questions outside the attorney general opinion process. The page does not answer that question, because the AG did not.

Common questions

What did Proposition 15 do in 2001?
The opinion explained that Proposition 15 added article III, section 49-k to the Texas Constitution, creating the Texas Mobility Fund to finance state highways and authorizing state obligations secured by the fund. It also amended the constitution to repeal a requirement that toll revenue repay certain Highway Fund spending.

How do Texas courts decide if ballot language is good enough?
The AG said the test is whether the language identifies the amendment and shows its character and scope, its intent, import, subject matter, or theme. Courts give voters fair notice and let them distinguish one proposition from another; they do not require the full amendment to be printed.

Did the ballot have to say gas taxes could fund toll roads?
The AG said no. Ballot language need not include every detail. It described Proposition 15 as adequately conveying the amendment's scope, aided by state voter guides that discussed the funding mechanism and the Highway Fund changes.

Does ballot language control what an amendment means?
No. The AG noted that courts ordinarily do not use ballot language to construe an amendment; they look to the amendment's own text to determine its meaning.

Did the AG decide whether toll projects are being funded improperly today?
No. The AG said that question depends on numerous facts and is outside the opinion process, so it was left undecided.

Background and statutory framework

Proposition 15, approved in November 2001, added article III, section 49-k to the Texas Constitution, creating the Texas Mobility Fund to finance state highways and authorizing the issuance of state obligations secured by the fund; the same proposition amended article III, section 52-b to repeal a requirement to use toll revenue to repay certain State Highway Fund spending (Tex. Const. art. III, § 49-k(b), (d); art. III, § 52-b; Tex. S.J. Res. 16, §§ 1-3, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694). The Legislature also enacted two implementing bills, Senate Bill 4 (Mobility Fund operation and highway bonds) and Senate Bill 342 (state participation in toll projects) (Act of May 24, 2001, 77th Leg., R.S., ch. 1213, 2001 Tex. Gen. Laws 2775; Act of May 27, 2001, 77th Leg., R.S., ch. 1237, 2001 Tex. Gen. Laws 2910).

The AG applied the standard that ballot language is sufficient if it identifies the amendment and shows its character and scope, and need not reprint the entire amendment or list every detail (Rooms with a View, Inc. v. Private Nat'l Mortg. Ass'n, Inc., 7 S.W.3d 840, 850 (Tex. App.-Austin 1999, pet. denied); R.R. Comm'n v. Sterling Oil & Ref. Co., 218 S.W.2d 415, 418 (Tex. 1949)). A sufficient ballot gives fair notice to a voter of average intelligence so the voter can identify the amendment and distinguish it from other propositions, judged against the facts when the Legislature adopted the resolution (Brown v. Blum, 9 S.W.3d 840, 848 (Tex. App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.); Hill v. Evans, 414 S.W.2d 684, 692 (Tex. Civ. App.-Austin 1967, writ ref'd n.r.e.)).

The AG observed that two state publications, the Texas Legislative Council analysis and the House Research Organization report, had explained Proposition 15's funding mechanism and Highway Fund changes to voters, and that Proposition 15 was the only one of nineteen proposed amendments on the 2001 ballot addressing transportation financing. On that basis the AG concluded a court would likely find the ballot language sufficient. The AG added that courts ordinarily look to an amendment's own text, not its ballot language, to construe it (In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011)). It declined to resolve whether particular revenues are being used improperly for toll projects, describing that as a fact question outside the opinion process (Tex. Att'y Gen. Op. No. GA-1033 (2013)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 49-k(b), (d) (Texas Mobility Fund; state obligations)
• Tex. Const. art. III, § 52-b (repeal of toll-revenue repayment requirement)
• Tex. S.J. Res. 16, §§ 1-3, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694 (Proposition 15 resolution and ballot language)
• Act of May 24, 2001, 77th Leg., R.S., ch. 1213, 2001 Tex. Gen. Laws 2775 (Senate Bill 4)
• Act of May 27, 2001, 77th Leg., R.S., ch. 1237, 2001 Tex. Gen. Laws 2910 (Senate Bill 342)

Cases:

• Rooms with a View, Inc. v. Private Nat'l Mortg. Ass'n, Inc., 7 S.W.3d 840, 850 (Tex. App.-Austin 1999, pet. denied)
• R.R. Comm'n v. Sterling Oil & Ref. Co., 218 S.W.2d 415, 418 (Tex. 1949)
• Brown v. Blum, 9 S.W.3d 840, 848 (Tex. App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.)
• Hill v. Evans, 414 S.W.2d 684, 692 (Tex. Civ. App.-Austin 1967, writ ref'd n.r.e.)
• In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011)

Prior Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. GA-1033 (2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0017
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0017.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 11, 2015

The Honorable Myra Crownover Opinion No. KP-0017
Chair, Committee on Public Health
Texas House of Representatives Re: Construction of article III, section 49-k
Post Office Box 2910 of the Texas Constitution, related to the
Austin, Texas 78768-2910 Texas Mobility Fund, in light of the 2001
ballot language proposing the constitutional
amendment (RQ-1229-GA)

Dear Representative Crownover:

Your predecessor asked about a 2001 ballot proposition concerning the creation of the Texas Mobility Fund ("Mobility Fund"). [1] The proposition, Proposition 15, resulted in the addition of article III, section 49-k to the Texas Constitution. See Tex. S.J. Res. 16, § 1, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694, 6694-96. Article III, section 49-k created the Mobility Fund, which is used to provide a method of financing state highways. TEX. CONST. art. III, § 49-k(b). Article III, section 49-k also authorized the issuing and selling of state obligations that are secured by all or part of the money in the Mobility Fund. Id. art. III, § 49-k(d). In addition, Proposition 15 resulted in the amendment of article III, section 52-b to repeal the requirement to use toll revenue to repay certain expenditures of the State Highway Fund ("Highway Fund"). [2] See Tex. S.J. Res. 16, § 2, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694, 6696.

Your predecessor stated that the Texas Department of Transportation ("TxDOT") "now routinely uses [revenue from] gas taxes to construct toll projects, as well as to pledge it for repayment of bonds if toll revenues fall short." Request Letter at 3. Your predecessor's request letter cites to several articles describing current toll projects and asserts that the projects are funded by gas tax revenue. Id. at 3 nn.5-8. The request letter also asserts that the ballot language for Proposition 15 "makes no direct connection for the authorization of the State Highway Fund—i.e., gas tax and vehicle registration fees—to be used for toll projects." Id. at 3. In this context, your predecessor asked about the sufficiency of the ballot language of Proposition 15. [3]

The standard by which to determine the sufficiency of constitutional ballot language is whether the language "identifies the amendment, showing its character and scope, that is, its intent, import, subject matter, or theme." Rooms with a View, Inc. v. Private Nat'l Mortg. Ass'n, Inc., 7 S.W.3d 840, 850 (Tex. App.-Austin 1999, pet. denied). The Texas Supreme Court has said that "[t]he Constitution requires that certain publicity shall be given a proposed amendment prior to an election. This is done to identify the amendment and to show its character and purposes, so that the voters will be familiar with the amendment and its purposes when they cast their ballots." R.R. Comm'n v. Sterling Oil & Ref. Co., 218 S.W.2d 415, 418 (Tex. 1949). Moreover, the supreme court has acknowledged the impracticability of printing an entire amendment on a ballot: Exactitude is not required because it would often "be impracticable to print an entire amendment on a ballot." Id. Thus, in setting the sufficiency standard, Texas courts have consistently determined that it "is not necessary to include all relevant details or to print the entire proposed amendment on the ballot." Rooms with a View, 7 S.W.3d at 850; see also Sterling Oil, 218 S.W.2d at 418 (stating that ballot language must show an amendment's "character and purposes"); accord Hardy, 849 S.W.2d at 358. And as voters are presumed to be familiar with the contents of a measure on a ballot, "[a] ballot adequately describes a proposed amendment if it gives fair notice to the voter of average intelligence by directing him to the amendment so that he can discern its identity and distinguish it from other propositions on the ballot." Brown v. Blum, 9 S.W.3d 840, 848 (Tex. App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.) (quotation marks omitted); accord Rooms with a View, 7 S.W.3d at 850; see also Hill v. Evans, 414 S.W.2d 684, 692 (Tex. Civ. App.-Austin 1967, writ ref'd n.r.e.). A determination about the sufficiency of ballot language is judged against the "facts at the time the legislature adopted the resolution proposing the amendment." Hill, 414 S.W.2d at 687.

The November 2001 ballot contained the following language as Proposition 15:

The constitutional amendment creating the Texas Mobility Fund and authorizing grants and loans of money and issuance of obligations for financing the construction, reconstruction, acquisition, operation, and expansion of state highways, turnpikes, toll roads, toll bridges, and other mobility projects.

Tex. S.J. Res. 16, § 3, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694, 6696. The amendment described by Proposition 15 created the Mobility Fund and moved the state away from the then current "pay-as-you-go" system to one of using state funds to secure long-term obligations to finance Texas state highway projects. [4] Proposition 15 described both of these changes and expressly connected the state's new financing obligations to "state highways, turnpikes, toll roads, toll bridges, and other mobility projects." Id.

Importantly, the preelection publicity for the November 2001 election included at least two State government publications designed to educate the voters about the full extent of Proposition 15. The Texas Legislative Council and the House Research Organization published comprehensive guides analyzing all of the proposed amendments, including arguments for and against each proposed amendment. [5] These publicly available guides include a complete discussion about Proposition 15's proposed funding mechanism as well as its limitations. TLC Report at 121-24; HRO Report at 44-48. Both of these publications expressly note the changes and removal of limitations on the use of the Highway Fund. See TLC Report at 122 (noting that the amendment would remove existing limitations on use of state money for toll road purposes); HRO Report at 44-45 (noting limitation on dedicated fund sources to Highway Fund as well as the repeal of requirement that Highway Fund be repaid from toll and other turnpike revenue). A court addressing the question could be expected to presume the preelection publications educated the public so that a voter understood the full impact of Proposition 15, including any impact on the Highway Fund. See Brown, 9 S.W.3d at 848. Furthermore, as Proposition 15 was the only one of the nineteen proposed amendments on the November 2001 ballot with transportation financing as its subject, the same court could be expected to conclude that the ballot language enabled a voter to discern Proposition 15's identity and distinguish it from the other propositions on the ballot. See id. That Proposition 15 did not include or refer to every minor detail of the proposed amendment does not impact the validity of the proposition presented to the voters. See Rooms with a View, Inc., 7 S.W.3d at 850. Accordingly, it is likely that a court would conclude that the language used to describe Proposition 15 on the ballot, adding article III, section 49-k to the Texas Constitution, sufficiently expressed the scope and character of the proposed amendment and set its subject matter apart from the other amendments to satisfy constitutional standards. [6]

SUMMARY

A court would likely conclude that the language used to describe Proposition 15 on the 2001 November ballot, adding article III, section 49-k to the Texas Constitution, sufficiently expressed the scope and character of the proposed amendment and set its subject matter apart from the other amendments to satisfy constitutional standards.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Lois W. Kolkhorst, Chair, House Comm. on Pub. Health, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 6, 2014), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"); see also Email from Honorable Myra Crownover, Chair, House Comm. on Pub. Health, to Op. Comm. (Feb. 13, 2015) (requesting this office to continue with the opinion request submitted by the former chair of the House Committee on Public Health, Honorable Lois Kolkhorst) (on file with Op. Comm.).

[2] The Legislature enacted two bills in conjunction with Proposition 15: Senate Bill 4 provided for the operation of the Mobility Fund and the issuance of highway bonds, and Senate Bill 342 provided for state participation in highway toll projects. See Act of May 24, 2001, 77th Leg., R.S., ch. 1213, 2001 Tex. Gen. Laws 2775, 2775-78, Act of May 27, 2001, 77th Leg., R.S., ch. 1237, 2001 Tex. Gen. Laws 2910, 2910-15.

[3] Your predecessor did not expressly ask and we do not address whether any particular revenues are being used improperly to fund current TxDOT toll projects. Such a question would require the resolution of myriad fact questions that are outside the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-1033 (2013) at 1 (noting that fact questions cannot be resolved in the opinion process).

[4] See TEX. LEGISLATIVE COUNCIL, ANALYSIS OF PROPOSED CONSTITUTIONAL AMENDMENTS, NOVEMBER 6, 2001 ELECTION at 122 (Sept. 2001) (discussing background) ("TLC Report").

[5] See id.; HOUSE RESEARCH ORG., FOCUS REPORT No. 77-12, CONSTITUTIONAL AMENDMENTS PROPOSED FOR NOVEMBER 2001 BALLOT (Aug. 13, 2001) ("HRO Report").

[6] Typically, courts do not look to ballot language to construe an amendment and instead look to the language of the amendment to determine its meaning. See Sterling Oil, 218 S.W.2d at 418 (recognizing that ballot language does not serve to limit the "natural meaning of the language of the amendment itself"); see also In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011) (recognizing that courts try to ascertain and give effect to the plain language of the framers and voters of the constitution).