Untitled Texas Attorney General Opinion ( 2000 )

OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
September 19,200O
The Honorable Carole Keeton Rylander Opinion No. JC-0284
Comptroller of Public Accounts
P.O. Box 13528 Re: Whether the Commission on State
Austin, Texas 7871 l-3528 Emergency Communications or the Comptroller
is authorized to collect from a telecommuni-
Mr. James D. Goerke, Executive Director cations service provider delinquent 9-l -1
Commission on State Emergency emergency service fees and surcharges dating
Communications from 1992 to 1997 (RQ-0229-JC)
333 Guadalupe Street, Suite 2-212
Austin, Texas 78701-3942
Dear Comptroller Rylander and Mr. Goerke:
You jointly ask whether the Commission on State Emergency Communications or the
Comptroller has the authority to collect t?om a telecommunications service provider delinquent 9-l-l
emergency service fees and surcharges dating from 1992 to 1997. Your question arises because
House Bill 1983 (or “the Act”)’ shifted the duty to collect such fees and surcharges from the former
Advisory Commission on State Emergency Communications (which it renamed the Commission
on State Emergency Communications (the “Commission”)),* to the Comptroller,’ effective
September 1, 1999.4 Based on the House Bill 1983 savings clause and the administrative rules in
effect at the time of House Bill 1983’s enactment, we conclude that unless a contested case regarding
the collection of the fees at issue was tiled prior to the Act’s effective date, the House Bill 1983
amendments will govern, and the Comptroller rather than the Commission will have the authority
to collect the fees.
We begin with a brief review of the statutory scheme governing fee collection generally.
Subchapter D of Chapter 771 of the Health and Safety Code provides for the financing of state
emergency communications with 9-l-l emergency service fees and other surcharges that
telecommunications service providers are required to collect from their customers and deliver to
‘See Act of May 30,1999,16th Leg., R.S., ch. 1405, 1999 Tex. Gen. Laws 4739
2See id. $5 1,35 at 4739,4752.
‘See id. 5 29 at 4749-50.
‘See id. 5 38 at 4752.
The Honorable Carole Keeton Rylander - Page 2 (JC-0284)
Mr. James D. Goerke
the Commission. See TEX. HEALTH & SAFETYCODE ANN. $5 771.071-.079 (Vernon Supp. 2000).
These fees are used, as a general matter, “only for planning, development, provision,
and enhancement of the effectiveness of 9-l-l service” as approved by the Commission. See id.
9 771.075.
Your question concerns the collection of delinquent fees and surcharges from service
providers. Under chapter 771 as amended in 1999, the Commission notifies the Comptroller of “any
irregularity that may indicate that an audit of a service provider collecting a fee or surcharge under
this subchapter is warranted.” Id. 5 771.076(a). The Comptroller is also charged with collecting past
due amounts from service providers. Section 771.077 provides in pertinent part as follows:
(a) The comptroller by rule shall establish collection procedures
to collect past due amounts and recover the costs of collection from
a service provider or business service user that fails to timely deliver
the fees and the equalization surcharge to the commission.
(b) The comptroller by rule shall establish procedures to be used
by the commission to notify the comptroller of a service provider’s
or business service user’s failure to timely deliver the fees or
surcharges.
(c) In addition to amounts collected under Subsection (a), after
notice and an opportunity for a hearing, the comptroller may assess
a late penalty against a service provider who fails to timely deliver
the fees or surcharges. The late penalty is in an amount not to exceed
$100 a day for each day that the fees or surcharges are late.
Id.5 771.077(a)-(c). Prior to September 1, 1999, past due fees were collected by the Commission.
See Act of May 25, 1995,74th Leg., R.S., ch. 638,s 7,1995 Tex. Gen. Laws 3507,3509.
House Bill 1983, the bill that shifted collection of past due fees and surcharges from the
Commission to the Comptroller, contained the following savings provision:
(a) The changes in law made by this Act regarding the date of
payment of a fee or surcharge under Chapter 771, Health and Safety
Code, as amended by this Act, apply only to a fee or surcharge
collected on or after the effective date of this Act. A fee or surcharge
that is collected before the effective date ofthis Act is due on the date
the payment would have been due under the law as it existed
immediately before the effective date of this Act, and the former law
is continued in effect for that purpose.
The Honorable Carole Keeton Rylander - Page 3 (X-0284)
Mr. James D. Goerke
(b) The changes in law made by this Act regarding the collection
of fees, surcharges, or associated penalties apply only to an action
taken on or after the effective date of this Act. The collection of a fee,
surcharge, or associated penalty for which an action was initiated
before the effective date of this Act is governed by the law as it
existed immediately before the effective date of this Act, and the
former law is continued in effectfor thatpurpose.
(c) The changes in law made by this Act regarding the disposition
of a fee, surcharge, or associated penalty collected under Chapter 77 1,
Health and Safety Code, as amended by this Act, and the amount a
service provider may retain as an administrative fee apply only to a
fee, surcharge, or penalty collected on or after the effective date of
this Act. The disposition of a fee, surcharge, or associated penalty
that was collected before the effective date ofthis Act and the amount
a service provider may retain as an administrative fee are governed by
the law as it existed immediately before the effective date ofthis Act,
and the former law is continued in effect for that purpose.
Act of May 30,1999,76th Leg., R.S., ch. 1405,s 37,1999 Tex. Gen. Laws 4739,4752 (emphasis
added).
Subsection (b) of the savings provision, which deals with which law to apply regarding
collection of fees, governs your query, and we believe the crucial term in that provision is the word
“action.” The Code Construction Act provides that words are to be read in context and construed
according to the rules of grammar and common usage, and words with a technical meaning are to
be construed according to that meaning. See TEX.GOV’T CODEANN. $j3 11 ,011 (Vernon 1998). In
its common usage, “action” can be interpreted to mean “conduct” or “deed,” I OXFORD ENGLISH
DICTIONARY 127 (2d ed. 1989), but it also has the technical meaning of “legal process or suit,” id.
at 128; see also Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995) (“The term ‘action’ is
generally synonymous with ‘suit,’ which is a demand of one’s rights in court.“); Bradley v. Etessam,
703 S.W.2d 237,241 (Tex. App.-Dallas 1985, writ ref d n.r.e.). The phrase “an action” in the first
sentence of subsection tb) of this savings provision is said to be “taken,” suggesting that the word
“action” is being used in its common, more general sense. By contrast, in the second sentence, “an
action” is said to be “initiated,” a term of art suggesting that here the word has the more technical
meaning. See VII OXFORD ENGLISHDICTIONARY977 (2d ed. 1989) (defining “initiated” to mean
“[clommenced; originated”). We therefore believe that the word “action” in the first sentence of the
savings provision incorporates both conduct generally and more formal proceedings, whereas the
word “action” in the second sentence is limited only to more formal proceedings.
Your query involves the following situation: In 1998, the Commission notified a service
provider that an audit had revealed that the provider was past due on payment to the Commission
The Honorable Carole Keeton Rylander - Page 4 (X-0284)
Mr. James D. Goerke
of emergency service fees it collected from customers in 1992 to 1997. “The Commission initiated
informal discussions with the provider in 1998 regarding the delinquency, and in the course of these
conversations the provider indicated that it wished to avail itself of the hearing procedure.“5
However, the statute was amended, and the authority to collect past due fees was transferred from
the Commission to the Comptroller, “before any pleadings were filed or any formal contested case
procedure was initiated.” Request Letter, note 5, at 2. You ask “which agency now has the authority
to initiate formal, contested case collection efforts against the provider.” Id.
To definitively construe the savings clause in light of this factual situation, we examine
the administrative rules in effect at the time of House Bill 1983’s enactment. Prior to
September 1,1999, the Commission was authorized under section 771.077 to establish procedures
to collect past due amounts and recover the costs of collection from a service provider. See Act of
May 25, 1995,74th Leg., R.S., ch. 638, $ 7, 1995 Tex. Gen. Laws 3507,351l. The Commission
adopted rules to establish collection and hearing procedures pursuant to this provision. See 1 TEX.
ADMIN. CODE ch. 253 (2000); see id. 5 253.1(g) (“These rules establish collection and hearing
procedures pursuant to Texas Health and Safety Code, 8 771.077.“). Those rules provided for
collection by informal procedures as well as by formal contested cases. See id. $5 253.3 (informal
procedures), 253.4-.30 (contested cases). The rule on informal procedures, section 253.3, provided
that a service provider that disagreed with an initial written staff determination regarding untimely
delivery of 9-l-l emergency service fees or surcharges could request a “reconciliation conference
with the staff.” Id. 5 253.3(a). After the reconciliation conference, or if no reconciliation conference
was requested, the staff was required to “notify the service provider in writing of its
recommendation to the commission on the matter.” Id. A service provider that disputed any part
of the staffs recommendation was required to request a hearing within thirty days after receipt of
the staffs recommendation. See id. 5 253.3(c). The request had to comport with the following
requirements:
The request for a hearing must be in writing and must include a
statement of grounds that sets out in detail the reasons the service
provider or business service user does not agree with the staffs
recommendation. Legal authority must be cited if the service
provider or business service user disagrees with the staffs
interpretation of the law.
Id. Upon receiving a request for a hearing, staff was required “to proceed to formal contested case
proceedings, unless the staff determines that further settlement discussions with the service provider
or business service user are warranted.” Id. In the event that the service provider failed to timely
%tter from Mr. James D. Goerke, Executive Director, Commission on State Emergency Communications,
to Honorable John Corny% Texas Attorney General at 2 (May 4,200O) (on tile with Opinion Committee) [hereinafter
Request Letter].
The Honorable Carole Keeton Rylander - Page 5 (X-0284)
Mr. James D. Goerke
respond to staffs recommendation, the rule authorized “staff [to] begin to proceed to formal
contested case proceedings.” Id. 9 253.3(d).
Another Commission rule, section 253.4, provided that “[tlhe administrative law judge
acquires jurisdiction over a contested case when the staff of the agency, or any person authorized by
statute, files a request to docket a case in the form prescribed by the administrative hearings clerk,
and in accordance with $253.8 of this title (relating to Filings).” Id. 5 253.4(a). Under the rule, a
request to docket a case was considered tiled “when the request to docket is received and tile-marked
by the administrative hearings clerk.” Id. 5 253.4(b).
Again, the pertinent subsection of the House Bill 1983 savings clause provides that “the
changes in law made by this Act regarding the collection of fees, surcharges, or associated penalties
apply only to an action taken on or after the effective date of this Act,” and that the “collection of
a fee, surcharge, or associated penalty for which an action was initiated before the effective date of
this Act is governed by the law as it existed immediately before the effective date of this Act, and
the former law is continued in effect for that purpose.“6 As we have explained, we construe the word
“action” in the first sentence of the savings clause to refer generally to conduct or deeds and the
phrase “action . initiated” in the second sentence to refer more specifically to formal proceedings.
See discussion supra p. 3. Given the Commission rules, which were in effect at the time House Bill
1983 was enacted, we further conclude that the word “action” in the second sentence refers to a
contested case provided for in the Commission rules. In addition, we conclude that such an action
may be said to have been initiated only pursuant to section 253.4 of the Commission rules, which
established the formal mechanism for commencing a contested case. See TEX. GOV’T CODE ANN.
5 3 11.023 (Vernon 1998) (“In construing a statute a court may consider. circumstances under
which the statute was enacted [and] administrative construction of the statute”).
In sum, the first sentence ofthe savings provision mandates the application ofthe House Bill
1983 amendments to all actions taken after the Act’s effective date, both informal conduct and
newly-initiated formal proceedings. The second sentence of subsection(b) preserves prior law only
for contested cases tiled prior to House Bill 1983’s effective date. We gather from the facts asserted
in your request that the service provider at issue requested a hearing under section 253.3, but that
no request to docket a case was filed as provided by section 253.4. See Request Letter, supra note
5, at 2. On the other hand, a brief submitted by the telecommunications service provider suggests
a slightly different interpretation ofthe facts.’ Because this office cannot make fact findings and is
6Act of May 30,1999,76th Leg., R.S., ch. 1405, $37(b), 1999 Tex. Gen. Laws 4739,4752
‘See Brief from Mr. Anthony M. Whalen, State Tax Counsel, Sprint, to Opinion Committee, Office of the
Attorney General (Aug. 18,200O) (on tile with Opinion Committee).
The Honorable Carole Keeton Rylander - Page 6 (JC-0284)
Mr. James D. Goerke
not equipped to resolve factual disputes,* we take the facts asserted in the request letter as true and
assume that a contested case was not tiled under section 253.4 prior to House Bill 1983’s effective
date, September 1,1999. Assuming that no contested case was filed prior to the Act’s effective date,
prior law is not preserved with respect to collection of the fees at issue. The changes in law made
by House Bill 1983 regarding the collection of fees and surcharges will apply to a contested case
filed after September I,1999 to collect those fees. The Comptroller rather than the Commission is
authorized to collect the fees in such an action.
SUMMARY
The Comptroller rather than the Commission on State
Emergency Communications has the authority to collect from a
telecommunications service provider delinquent 9-l -1 emergency
service fees and surcharges dating from 1992 to 1997 ifno contested
case regarding the collection of the fees was tiled prior to the
effective date of House Bill 1983.
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee
*See Tex. Att’y Gen. Op. Nos. K-0020 (1999) at 2 (stating that investigation and resolution of fact questions
cannot be done in opinion process); M-187 (1968) at 3 ( “[Tlhis office is without authority to make factual
determinations.“); O-291 1 (1940) at 2 (“[Tlhis presents a fact question which we are unable to answer.“).