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Texas Attorney General Says No More Public Money For Toll Roads
Texas attorney general confirms that the ban on public toll road funding includes express lanes and other mixed projects.

Ken Paxton
Texans overwhelmingly approved a ballot measure four years ago raising $1 billion for transportation with a clear directive that none of the funds could be diverted for use by non-road projects such as bicycle paths or for toll roads. Attorney General Ken Paxton last week clarified that this state constitutional amendment, enacted with the support of 80 percent of voters, applies to projects the state until recently has been supporting.

"The [Texas Transportation] Commission may not spend state highway funds received under Propositions 1 and 7 to fund any road for the use of which a toll is collected," Paxton wrote. "Construing the term 'toll road' becomes more complicated, however, due to the realities of toll roads today."

While often portrayed as "free market" projects, toll roads in the United States are heavily subsidized by federal and state governments. In some high-profile projects, the private tolling operators only pay the cost of interest on the project, with taxpayers on the hook for the rest. State Representative Joe C. Pickett (R-El Paso), the chairman of the Environmental Regulation Committee, was concerned that the Texas Transportation Commission would evade the voters' will by shifting state subsidies to "express lanes" that mix free lanes with pay lanes.

"The constitutional amendments passed by the voters do not allow these monies to be used by toll projects, yet I see see we are going forward with projects that have both tolled and non-tolled components and are using Prop 1 and Prop 7 monies along with other funding creating one project," Pickett wrote in his letter to Paxton. "If we are not able to move forward on these as standalone tolls or standalone non-tolls, I would think just the combining of Prop 1 and Prop 7 monies would constitute using these sources for something not only not intended, but not allowed."

After Pickett's letter was sent, the commission dropped plans for tolling portions of certain roads. Paxton urged the legislature to clarify the extent of the funding prohibition, saying the limits of the tolling prohibition remain unclear.

"Unquestionably, the commission may not withdraw Proposition 1 and Proposition 7 funds from the state highway fund and place them into a general fund for a partially tolled project with no mechanism for ensuring that it spends the funds as constitutionally required, that is, only on non-tolled roads," Paxton wrote.

Texas Turf, an anti-toll road group, raised the alarm earlier this month that the commission was quietly attempting to spend $37 million to expand the bankrupt SH130 toll road.

A copy of the attorney general's opinion is available in a 200k PDF file at the source link below.

Source: PDF File Opinion KP-0197 (Texas Attorney General, 5/7/2018)

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