Sen K B Hutchison has lawyers scratching heads over Texas toll projects

January 8, 2008
By Peter Samuel

US Senator from Texas, Kay Bailey Hutchison keeps throwing abstruse legal obstacles in the way of homestate projects. Her latest effort which has USDOT and TxDOT lawyers scratching their heads is a tiny item Sec 197 of the annual transportation appropriations bill passed late last year which is called Tolling Provision and under the heading Prohibition states:

None of the funds made available by this Act shall be used to consider or approve an application to permit the imposition or collection of any toll on any portion of a Federal highway facility in the state of Texas that is (1) in existence on the date of enactment and (2) untolled under a provision of 1216(b) or (3) would result in the federal highway facility having fewer non-tolled lanes than before the date on which he toll was first imposed or collected. It goes under the heading Exemption from this ban on consideration of tolling to allow consideration of projects being tolled on the date of enactment or constructed, under construction or subject to an application for construction submitted to the US Sec transportation after the date of enactment.

see exact text here

If that seems to be an exemption that negates the prohibition we're told that's not entirely the case. TxDOT officers think it puts a roadblock in the way of progress on the I-635 Managed Lanes project and also on the upgrade of US77 which need federal approvals.

K B Hutchison is reportedly trying to curry favor with the anti-toll movement in her state where she is planning to run for governor. At the same time she is trying to provide TxDOT with room to continue with toll projects needed to enhance mobility and reduce congestion.

Of course she could be asking US officials to consider Texas projects in their spare time in a further attempt to curry favor with taxpayer associations. Out of hours work by USDOT on considering and approving Texas project is clearly allowed.

A fourth thrust of the senator's activity might be a pitch to the American Bar Association. Her efforts are obviously make-work for lawyers.

What is a "federal Highway facility" could go all the way to the US Supreme Court.

That's a term not used in any existing law.

Interstate highways are not obviously federal highway facilities. They are owned and controlled by the states and merely designated as Interstate by the US Government. US routes, again, are state owned and operated highways. State Highways are hardly federal Highway facilities either.

Maybe highways on Indian reservations or US military bases or in National parks are federal highway facilities, so no tolls are to be considered on US Army post Ft Hood - unless, of course, they are allowed by the exemption the senator has also provided.

COMMENT: Sec 197 is a fine example of the clearminded, fearless, no-nonsense leadership required to govern the great state of Texas in 2009 and beyond. She recently got an Outstanding Legislator Award for stuff like this.

TOLLROADSnews 2008-01-08

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