For nearly seven months, transportation projects across Texas have been on hold as a result of the Texas Transportation Commission (the “Commission”) removing several toll projects from their long range plan. At the same time, Representative Joe Pickett submitted an opinion request to the Attorney General questioning the use of Proposition 1 and 7 funds on “projects that have both tolled and non-tolled components.” On May 7, 2018, Texas Attorney General Ken Paxton issued Opinion No. KP-0197 on this issue.
An overview of KP-0197 can be found here. Essentially, the opinion states that Prop 1 and 7 funds cannot be placed into a general fund for “a partially tolled project” without an accounting mechanism for ensuring that Prop 1 and 7 funds are spent as constitutionally required (i.e. not on a “toll road”). Thus, it appears that as long as the Commission maintains proper accounting mechanisms to separately track and account for Prop 1 and 7 funds, those funds may be spent on a non-tolled road that is located in the same corridor as a toll road.
In April, the Commission approved the widening of the SH 130 toll road in Travis County, which will be funded entirely by toll revenues generated from TxDOT’s system of toll roads. Since KP-0197 was released on May 7, other previously delayed projects are slowly beginning to advance. A procurement to construct direct connectors at the interchange between SH 130 and 290, approved by the Commission last year, is moving forward. The Commission has also approved the procurement of a design-build contract for LBJ 635 East in Dallas County.
There are still much needed, shovel-ready toll projects awaiting authorization to move forward. It remains to be seen what will happen with future toll projects and tolling policy in general, but with Texas’s rapidly growing population, the congestion relief offered by these now-active projects is a step in the right direction.