January 1974
We the People...
For almost a century the Texas constitution has been used by special interests to hamstring good government. The new draft constitution changes most (but not all) of that.
IN A GRAND CEREMONY AT the Capitol on November 1, the work of the 37-member Texas Constitutional Revision Commission was presented to the presiding officers of both houses of the Legislature. It consisted of a document entitled, with hopeful anticipation, "A New Constitution for Texas," along with an accompanying text that spelled out the reasons for the changes the Commissioners had made in the state's 97-year-old Reconstruction-era constitution.
They grappled with almost every substantial issue that exists in Texas politics. More often than not they chose the path of caution and conservatism, avoiding the temptation to draft a "pure" but controversial document that might fail to win the approval of the coming Constitutional Convention, or of the voters themselves, who must approve any new basic law before it can take effect. Among the issues they considered were several of special concern to urban voters: mass transit, local government powers, single member legislative districts, and public school education.
Discord prevailed when the Commissioners turned their attentions to one of the most blatant bits of special-interest legislation in the current constitution, the Highway User Fund. Since 1946, when the "Good Roads Amendment" was adopted, three-fourths of the total revenue from the state's gasoline tax has been allocated to "the sole purpose of acquiring rights of way, constructing, maintaining, and policing...public road ways" and for the administration of traffic safety laws (the remaining one-fourth, amounting to more than $80 million a year at the current tax rate of 5¢ per gallon, goes to the public schools). With these constitutionally-protected funds, the State Highway Department has developed the finest highway network of any state in the union, more than 70,000 miles in all. The Department (like any bureaucracy) desperately wants to keep these funds beyond the reach of a Legislature that might one day decide to spend part of them on something else, like urban mass transit systems. In this effort they are enthusiastically supported by the Texas Good Roads Association, which lobbies tirelessly for highway expenditures in perpetuity.
Several members of the Constitutional Revision Commission were of the opinion that even if the time has not yet come to allocate a portion of gasoline taxes to mass transit, the time surely has come to free the Legislature from an ironclad constitutional prohibition against doing so in the future. Other members questioned the wisdom of insulating highway funds from Legislative scrutiny while other funds, like health, were left to the give-and-take of political infighting that occurs with every biennial appropriation bill. Still others objected to the whole concept of special "dedicated" tax funds that are set in constitutional concrete. Consequently, they found themselves allied against the advocates of the status quo on the opening question of whether to preserve any dedicated highway fund at all.
Few issues elicited more emotional heat among the Commissioners. Vice Chairman Beryl Milburn, an influential leader in the state Republican party, supported the Fund with her most impassioned speech of the hearings:
This fund reflects the years of work that have gone on the highways, the safety system, the life blood of this state which has been built on transportation and communication....I would be very reluctant to remove the constitutional seal from this provision.
Dr. George Beto, a Lutheran minister who formerly directed the Texas Department of Corrections, urged his fellow Commissioners to remove the Fund:
I think you are being extremely short-sighted in committing yourselves to a dedicated tax for highways in this rapidly-changing technological age....
...you are taking a non-human value in this state and dedicating millions of dollars to it. To me a much more pressing problem than good highways—and I realize that I am almost speaking against the Flag, Motherhood, and God when I say this—but a much more pressing problem is the treatment of mentally retarded children in this state....
It was left to Dr. Peter Flawn, a geologist who currently serves as President of the University of Texas at San Antonio, to rebut Beto's appeal. In a retort that is unlikely to win any Comeback-of-the-Year awards, Commissioner Flawn exclaimed:
Dr. Beto, who uses the highways? Human beings! You don't believe that mentally retarded children are transported to and from hospitals over highways?
By a vote of 13 to lO, the Commissioners decided to keep the highway Fund in the constitution. The battle-ground then shifted to the question of how broad that provision would be. Former United States Senator Ralph Yarborough successfully (but as it turned out, only temporarily) managed to rephrase it to set aside "not less than one-fourth" of the revenues for the public schools, leaving the door open for a future legislature to increase the share going to education at the expense of the share going to highways—even to the point of allocating the gasoline tax wholIy to education. There was also discussion of amending the provision to permit future use of the highway share for county roads and urban mass transit, if the Legislature so chose.
No sooner had Yarborough's proposal prevailed by a vote of 20-14 than representatives of the State Highway Commission, the trucking industry, and the Good Roads Association set out to overturn it, and to block any forthcoming amendment that might have allowed Mass Transit to get its sinister, unTexan foot in the door. The Commissioners were bombarded with pro-highway propaganda bluntly implying that those who doubted that highways shollld get preferential treatment really wanted to abolish roads. The highway Fund advocates declared with straight faces that this section of the Texas constitution must be left the way it is, because "there is no other way to keep the economy of this country rolling."
The Good Roads Association diagrammed in exquisite detail the catastrophes which would befall a people so foolish as to believe that highways ought to win their appropriations by logic and persuasion.
"There are 505,346 Texas school children who go to school each day by bus." [If the Fund were removed or squandered on mass transit, a future Abe Lincoln would presumably have to walk.]
"Texas farmers are wholly dependent on highway transportation....Good roads help to keep transportation costs down—and this is reflected in food prices paid by Texans."
"Roads and streets are needed for emergency vehicles." [But when the lack of mass transportation forces people to use automobiles, the resulting traffic slows down these same emergency vehicles.]
"One life is saved each year for each five miles of highway built to modern Interstate standards." [Elsewhere, the Association points out that the avemge cost of a mile of Interstate highway in Texas is $919,000. That works out to $4,595,000 per life, a pretty costly way to avoid mass transit, which after all is safer than private automobiles.]
The 39,800-mile farm-to-market road system is a boon to urban Texans because it offers them "the quick mobility to find and enjoy a serene and relaxing weekend spot." [Is it such a boon, in fact, that another 10,200 miles should be built instead of diverting part of their tax money into figuring out how mass transit might cut down some of that five o'clock traffic on the Stemmons Freeway?]
The highway program is "people-related." Highway construction and highway transportation account for 1,164,471 jobs, including those in "motor vehicle manufacturing, the petroleum industry , auto sales, the Texas Highway Department [aha!], the truck and bus industry, and highway construction." [All of whom would presumably be milling around in the streets looking for work if the dedicated highway Fund were removed from the constitution—when the other projects the money could be spent on would generate jobs as well.]
"There is reason to be concerned about the changing nature of political winds in Austin, Texas....At this moment four cities—Houston, Dallas, Fort Worth, and San Antonio—constitute 57.5 per cent of the urban population. Politics being politics, the legislators of the future can be expected to focus their interest, and the state's moneys, on those projects that most promote the favor of these urban-oriented voters. In theory, this is as it should be. [So far, so good.] But if carried to the absolute letter in practice. the economy of the state would likely suffer substantial damage over the longer picture. For the economy of Texas is, to a great extent, an economy on wheels."
And finally, the clincher: If the Fund is removed from the Constitution, some future urban-dominated Legislature might carry democracy to the absolute letter in practice and let the state's "highly expensive investment" deteriorate or turn their backs on some particular road-building project. Warns the Good Roads Association gravely: "Highways cannot be built piecemeal...Oh, they can. But what would happen? You would drive for 20 miles on a splendid stretch of road, then come to a dead-end or a badly-deteriorated section. Doubtless this is not a situation any responsible person would want to encourage."
Incredibly, the Constitutional Revision Commissioners eventually yielded to this barrage and erased the Yarborough amendment, thereby guaranteeing that a full three-fourths of the gasoline tax would continue to be earmarked for highways. Then they went even beyond the present constitutional language to make certain that none of the money could possibly be used for mass transit. They took out the reference to "public road ways" (which some, including Yarborough, felt might be broad enough to include rapid transit rights-of-way) and substituted language limiting the Fund to "a state highway system"—thus locking out not only mass transit but county roads as well. One Commissioner on the losing side remarked that "they rigidified it. This freezes the Legislature into spending all that money on just one kind of transportation. They can't even spend it on a little county road going to the lake: they have to spend it on state roads big enough for trailer trucks to travel on."
A minority report will be filed on the highway Fund issue, and there is every likelihood that it will be as hotly debated among the members of the Constitutional Convention as it was among the Commissioners.
