Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 12,2003
The Honorable Oliver S. Kitzman Opinion No. GA-O 129
Waller County Criminal District Attorney
836 Austin Street, Suite 103 Re: Whether the Waller County Commissioners
Hempstead, Texas 77445 Court must provide notice and hold a hearing
under section 25 1.152 of the Transportation Code
before authorizing the installation of stop signs on
a county road (RQ-0070-GA)
Dear Mr. Kitzman:
You ask whether the Waller County Commissioners Court must provide notice and hold a
hearing under section 25 1.152 of the Transportation Code before authorizing the installation of stop
signs on a county road.’
Title 7, subtitle C of the Transportation Code, the “Rules of the Road,” applies uniformly
throughout the state, and a local authority, such as a county, may regulate traffic only in a manner
that does not conflict with it. See TEX. TRANSP.CODE ANN. 8 542.201 (Vernon 1999); see also id.
0 541.002(3) (defining “local authority” to include a county or municipality). Subtitle C charges the
Texas Department of Transportation with, among other things, adopting a manual for a uniform
system of traffic-control devices, including stop signs,* and placing and maintaining traffic-control
devices on state highways. Id. 85 544.001-.002(a). A local authority may place and maintain a
traffic-control device on a highway under its jurisdiction to implement subtitle C or a local traffic
ordinance. Id. 8 544.002(b); see also id. 8 541.302(5) (defining “[hlighway or street” to mean “the
width between the boundary lines of a publicly maintained way any part of which is open to the
public for vehicular travel”).3 The traffic-control device must conform to the Department of
Transportation’s manual. See id. 5 544.002(b).
‘Letter from Debra Merge& Assistant Criminal District Attorney, Waller County, to Office of the Attorney
General, at 2 (received May 28, 2003) [hereinafter Request Letter].
*See TEX. TRANSP. CODEANN. 9 541.304( 1) (Vernon 1999) (defming “[olfficial traffic-control device” to mean
“a sign, signal, marking, or device that is: (A) consistent with this subtitle; (B) placed or erected by a public body or
officer having jurisdiction; and (C) used to regulate, warn, or guide traffic”).
3See aZso id. 5 542.203(a) (“A local authority may not erect or maintain a traffic-control device to direct the
traffic on a state highway, including a farm-to-market or ranch-to-market road, to stop or yield before entering or crossing
an intersecting highway unless permitted by agreement between the local authority and the Texas Department of
Transportation under Section 221.002.“).
The Honorable Oliver S. Kitzman - Page 2 (GA-0129)
Chapter 25 1, subchapter E of the Transportation Code authorizes a commissioners court to
regulate traffic on county roads. See id. 8 25 1.15 1 (a commissioners court “may regulate traffic on
a county road or on real property owned by the county that is under the jurisdiction of the
commissioners court”). Section 25 1.152 requires a commissioners court to provide notice and hold
a public hearing before issuing a traffic regulation:
(a) Except as provided by Section 25 1.159, before the
commissioners court may issue a trafjc regulation under this
subchapter, the commissioners court must hold a public hearing on
the proposed regulation.
(b) The commissioners court shall publish notice of the
hearing in a newspaper of general circulation in the county. The
notice must be published not later than the seventh or earlier than the
30th day before the date of the hearing.
Id. 8 251.152 (emphasis added).
In connection with a request from the Waller County Road and Bridge Department for
authorization to install stop signs at either end of a county road, you ask whether the Waller County
Commissioners Court is required by section 251.152 “to place a notice in the newspaper and hold
a public hearing before approving the placement of stop signs on a county road.” Request Letter,
supra note I, at 2. You inform us that section 25 1.159, which applies only to a county with a
population of more than 200,000, does not apply to Waller County. See id. at 3; see also TEX.
TRANSP.CODE ANN. 8 25 1.159 (Vernon Supp. 2004) (p ermitting commissioners court to provide
a traffic-regulation notice by posting a sign in lieu of publication and requiring commissioners court
to hold a public hearing on a proposed traffic regulation only if requested by a resident).
Your query requires us to determine whether a commissioners court order authorizing the
installation of stop signs on a county road is “a traffic regulation” under section 25 1.152. Chapter
25 1, subchapter E does not define the term “traffic regulation,” and we have not located any judicial
or attorney general opinion addressing section 25 1.152’s scope. Nor is the term “traffic regulation”
defined in any other Texas statute. According to its common meaning, however, a “traffic
regulation” is a broad term that refers to “a prescribed rule of conduct for traffic; a rule intended to
promote the orderly and safe flow of traffic.” BLACK’S LAW DICTIONARY 1502 (7th ed. 1999)
(defining “traffic regulation”); TEX. GOV’T CODE ANN. 0 3 11 .Ol 1(a) (Vernon 1998) (words and
phrases must be construed according to common usage), 3 11 .Ol l(b) (words and phrases that have
acquired a technical or particular meaning, whether by legislative definition or otherwise, must be
construed accordingly).
Under the statewide “Rules of the Road,” a stop sign is a “traffic-control device” that governs
drivers’ conduct. See, e.g., TEX. TRANSP.CODEANN. 83 544.01 O(a) (Vernon 1999) (“the operator
of a vehicle or streetcar approaching an intersection with a stop sign shall stop as provided by
Subsection (c)“), 544.01 O(c) (stop requirements), 545.15 1(a) (“[aln operator approaching an
intersection . . . shall stop, yield, and grant immediate use of the intersection in obedience to an
The Honorable Oliver S. Kitzman - Page 3 (GA-0129)
official traffic-control device, including a stop sign or yield right-of-way sign”), 545.153(b) (“an
operator approaching an intersection on a roadway controlled by a stop sign, after stopping as
required by Section 544.010, shall yield the right-of-way to a vehicle that has entered the intersection
from another”). A commissioners court order to install a stop sign at a particular location thus
imposes a prescribed rule of conduct for traffic at that location. See id. 8 544.002(b) (“To implement
this subtitle or a local traffic ordinance, a local authority may place and maintain a traffic-control
device on a highway under the authority’s jurisdiction.“) (emphasis added); see also Lorig v. City
of MisSion, 629 S.W.2d 699, 700 (Tex. 1982) (“A stop sign is intended to regulate traffic for the
safety of the public generally.“). Accordingly, we conclude that a commissioners court order
authorizing the installation of stop signs on a county road is a “traffic regulation” within section
25 1.152’s plain meaning.
In addition, section 25 1.155 of the Transportation Code, which specifically addresses a
commissioners court’s authority to install stop signs, indicates that a commissioners court order
authorizing the installation of traffic-control devices, including stop signs, is a traffic regulation.
Specifically, section 25 1.155(a) authorizes a cornmissioners court to “adopt regulations establishing
a system of traffic control devices in restricted traffic zones on property described by Section
251.151.” TEX. TRANSP. CODE ANN. 4 25 1.155(a) (Vernon 1999) (emphasis added); see also id.
8 25 1.15 1 (a commissioners court “may regulate traffic on a county road or on realproperty owned
by the county that is under the jurisdiction of the commissioners court”) (emphasis added). Under
section 25 1.155(c), a commissioners court may authorize the installation of certain traffic-control
devices, including stop signs, by order: “The commissioners court by order entered on its minutes
may install and maintain on property to which this section applies any traffic signal light, stop sign,
or no-parking sign that the court considers necessary for public safety.” Id. 8 25 1.155(c) (emphasis
added). A system of traffic-control devices adopted under section 25 1.155 “must conform to the
manual and specifications of the Texas Department of Transportation.” Id. $25 1.155(b).
You contend, however, that section 25 1.155 does not apply to Waller County’s installation
of stop signs because that statute deals only with “restricted traffic zones” and “Waller County has
not established restricted traffic zones.” Request Letter, supra note 1, at 3. You suggest that a
restricted traffic zone is an area with some special legal status and that section 25 1.155 does not
apply unless the commissioners court acts to install a traffic-control device in such an area.
Although both sections 25 1.155 and 25 1.156 use the phrase “restricted traffic zone,” TEX. TRANSP.
CODE ANN. 8 0 25 1.155(a), 25 1.156(a) (“The commissioners court of a county by order may have
signs installed that prohibit or restrict the stopping, standing, or parking of a vehicle in a restricted
traffic zone on property described by Section 251.151 . . . .“) (Vernon 1999 & Supp. 2004),
subchapter E does not establish special rules or procedures for establishing restricted traffic zones.
Subchapter E does not define the phrase nor is it used or defined by any other Texas law. The
meaning of the phrase “restricted traffic zone” in sections 251 .155 and 215.156 is not clear, but
given that state law does not afford a restricted traffic zone any special status, it appears that the
phrase simply refers to an area in which the county regulates traffic.
This interpretation of a restricted traffic zone as an area in which the county regulates traffic
is supported by these provisions’ evolution over the last half century. See TEX. GOV’T CODE ANN.
0 3 11.023 (Vernon 1998) (in construing statutes, courts may consider, among other things, the
The Honorable Oliver S. Kitzman - Page 4 (GA-0129)
circumstances under which a statute was enacted and the legislative history); see also Fleming Foods
of Texas, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (“specific, unambiguous [codified]
statutes are the current law and should not be construed by a court to mean something other than the
plain words say”). In 1947, this office concluded that a commissioners court lacked authority to
regulate traffic speeds and to install traffic-control devices. See Tex. Att’y Gen. Op. No. V-429
(1947). Thereafter, the legislature enacted several statutes authorizing counties to alter speed limits
established by the State Highway Commission. See generally id. V-1478 (1952). The legislature
enacted the statutory predecessor to chapter 25 1, subchapter E of the Transportation Code, former
article 6701 g of the Revised Civil Statutes, in 195 1. Section 1 authorized certain more populous
counties “to create and establish restricted traffic zones” in the county. Act of April 18, 195 1,52d
Leg., R.S., ch. 302, 5 1, 1951 Tex. Gen. Laws 483, 483 (codified as former article 6701g, 8 1).
Section 3 authorized those counties to “adopt rules and regulations consistent with this Act for the
establishment of a system of traffic control devices within restricted traffic zones.” Id. 8 3 at 483-84
(codified as former article 6701g, 8 3). Xn 1971, the legislature amended article 6701g, section 1 to
authorize certain counties to “regulate and restrict traffic on county roads,” deleting the phrase
“restricted traffic zone” from section 1. See Act of May 19,1971,62d Leg., R.S., ch. 3 18,s 1,197l
Tex. Gen. Laws 1260,126O. This new language appears to have broadened a commissioners court’s
authority beyond regulating speeds to regulating traffic generally, while embracing counties’ existing
authority to control traffic in restricted traffic zones. The same legislation added section l(b) to
article 6701 g, requiring a commissioners court to “hold a public hearing before issuing any traffic
regulation pursuant to this Act.” Id.
In 1983, the legislature repealed article 670 1g and adopted article 6702- 1 of the Revised Civil
Statutes, the County Road and Bridge Act, which authorized commissioners courts in all counties
to “regulate and restrict traffic on county roads” in section 2.30 1(a)( 1) and required a commissioners
court to hold a hearing before issuing any traffic regulation in section 2.301 (a)(2). See Act of May
20, 1983, 68th Leg., R.S., ch. 288, 88 l-2 (repealing article 67Olg), 1983 Tex. Gen. Laws 1431,
1452,1526. The legislature codified the County Road and Bridge Act in the Transportation Code
in 1995. See Act of May 1,1995,74th Leg., R.S., ch. 165, $3 1,24 (repealing article 6702-l), 1995
Tex. Gen. Laws 1025, 1159-l 16 1, 1871. The codification omits the word “restrict” in section
25 1.15 1 “because ‘restrict’ is included within the meaning of regulate.” TEX. TRANSP.CODE ANN.
$ 25 1.15 1 revisor’s note (Vernon 1999).
Subchapter E’s predecessors indicate that the phrase “restricted traffic zone” in sections
25 1.155 and 25 1.156 is a vestige from former law and that the phrase refers to an area in which a
county regulates traffic. Thus, section 25 1.155 applies whenever a commissioners court orders the
installation of stop signs or other traffic-control devices. Significantly, that statute’s express
language is consistent with our conclusion that a commissioners court order to install stop signs
constitutes a traffic regulation and is therefore subject to section 25 1.152’s procedural requirements.
See id. 0 251.155(a) (commissioners court may “adopt regulations establishing a system of traffic
control devices in restricted traffic zones on property described by Section 25 1.15 1”) (emphasis
added).
The Honorable Oliver S. Kitzman - Page 5 (GA-0129)
SUMMARY
Section 251.152 of the Transportation Code requires a
commissioners court to provide notice and hold a hearing before
issuing a traffic regulation. An order to install stop signs on a
county road constitutes a traffic regulation. The Waller County
Commissioners Court must provide notice and hold a hearing under
section 25 1.152 before authorizing the installation of stop signs on a
county road. In addition, section 25 1.155 of the Transportation Code
applies whenever a commissioners court orders the installation of
stop signs or other traffic-control devices to regulate traffic. Stop
signs installed by a county must conform with the Texas Department
of Transportation’s manual for a uniform system of traffic-control
devices. See TEX. TRANSP. CODE ANN. §§ 251.155(b), 544.001-
.002(b) (V emon 1999).
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee