AG Ken Paxton’s opinion over funding nontolled elements of toll projects could ‘open the door’ for Central Texas work


Texas Attorney General Ken Paxton’s opinion over the state using voter-approved funds on nontolled elements of toll projects has given one Central Texas agency hope that some toll projects could now move forward.

Paxton released his opinion Monday that effectively states, “The absence of a definition of ‘toll road’ in the constitutional provisions, statutes or caselaw leaves us unable to determine whether the [Texas Transportation] Commission may use Proposition 1 and Proposition 7 monies on non-tolled portions of toll projects.”

Despite the lack of a definition of toll roads, officials from the Central Texas Regional Mobility Authority remain hopeful that the opinion could mean a positive outcome for its toll projects that were still in development.

“I think the opinion opens the door for [a]more thoughtful approach to building tolled and nontolled together when the project will benefit from both components in the same project as in [US] 183 North managed lanes,” Mobility Authority Executive Director Mike Heiligenstein said.

The agency had halted work on developing new toll projects in Central Texas—including adding toll lanes to US 183 in Northwest Austin, expanding Toll 183A to Liberty Hill and adding toll lanes to MoPac South—after the state’s top leadership in November instructed the Texas Department of Transportation to not use voter-approved funds for nontolled elements of projects with toll components.

A spokesperson from the Texas Department of Transportation said the department is reviewing the opinion but did not provide any further comment on the effect of the opinion.

A freeze on toll roads

Last November, progress on developing new toll roads halted statewide after Gov. Greg Abbott and Lt. Gov. Dan Patrick issued a statement saying funds from voter-approved propositions 1 and 7 couldn’t be used on nontolled elements of projects with tolled components.

An example is TxDOT had agreed to spend $120 million in state funding that would have come from propositions 1 and 7 to build the fourth nontolled lane on the US 183 North toll project. This project would add two tolled lanes in each direction on US 183 from SH 45 N to MoPac.

TxDOT had also announced plans just weeks before to add toll lanes to I-35 in Travis County on top of outlining other work designed to improve mobility and had announced it would expand SH 130, the majority of which it operates.

After the freeze on toll road development, the Texas Transportation Commission, the governing body for TxDOT, amended in December its 10-year planning document called the Unified Transportation Program that did not include any toll projects, including on I-35.

A sign of movement

Now that the opinion is out, Heiligenstein said he believes his agency would be able to “strictly separate” funding designated for the tolled elements on US 183 from the nontolled elements.

“It’s simply a matter of accounting and efficient oversight,” he said. “Second, the ‘unable to define’ a toll road [matter]seems to keep some flexibility in the development, procurement and construction and financing of big projects in Central Texas.”

He said it makes sense to maintain flexibility to ensure nontolled components will be accessible on toll roads, such as on the US 183 South project the agency is building that includes toll lanes and nontolled lanes.

On April 26, the Texas Transportation Commission approved a $36.7 million construction package for widening SH 130 to three lanes in each direction between SH 45 N and Hwy. 290. TxDOT expects to break ground this summer, and the project will take two years to complete, according to the department.

TxDOT and the Mobility Authority also announced May 3 that they selected a build alternative for the Oak Hill Parkway project that could now be stripped of its toll component. The project would include depressed main lanes along Hwy. 290 under Hwy. 71 with direct connections to both highways.

The city of Austin could also be called on to provide $2.5 million for the project, according to a city memo. A public hearing and open house is set for 6:15 p.m. May 24 at Bowie High School, 4103 W. Slaughter Lane, Austin.

AG Paxton May 7, 2018 opinion (Text)

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Amy Denney
Amy has been reporting in community journalism since 2007. She worked in the Chicago suburbs for three years before migrating south and joined Community Impact Newspaper in September 2010. Amy has been editor of the Northwest Austin publication since August 2012 and she is also the transportation beat reporter for the Austin area.
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