Untitled Texas Attorney General Opinion ( 2010 )


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  •                              ATTORNEY GENERAL OF TEXAS
    GREG        ABBOTT
    May 21,2010
    The Honorable Susan Combs                          Opinion No. GA-0777
    Comptroller of Public Accounts
    Post Office Box 13528                              Re: The Comptroller of Public Account's imple-
    Austin, Texas 78711-3528                           mentation of article IX, section 17.10 of the
    2010-2011 General Appropriations Act, which directs
    allocations to the Rail Relocation and Improvement
    Fund (RQ-0844-GA)
    Dear Comptroller Combs:
    You ask two questions regarding the possible transfer of $182 million out of the State
    Highway Fund to the Rail Relocation and Improvement Fund for the 2010-2011 fiscal biennium.!
    Article IX, section 17.10 of the current General Appropriations Act (the "Act") provides, in
    relevant part:
    a.    Out of the funds appropriated above, and on a finding by the
    comptroller under subsection (b) of this rider, an amount of $91
    million is allocated out of the State Highway Fund for state fiscal
    year 2010 and an amount of$91 million is allocated out of the
    State Highway Fund for state fiscal year 2011 for transfer to the
    Texas Rail Relocation and Improvement Fund. The amounts are
    allocated for expenditure out of the Texas Rail Relocation and
    Improvement Fund to the Department of Transportation for the
    purposes described by Section 49-0, Article III, Texas
    Constitution.
    b.    The allocations under subsection (a) of this rider may be made
    only if the comptroller issues a finding of fact that the following
    items result in a net increase for the 2010-2011 state fiscal
    biennium of at least $182 million over the 2008-2009 state fiscal
    biennium:
    IRequest Letter at 2 (available at http://www.texasattomeygeneral.gov).
    The Honorable Susan Combs - Page 2               (GA-0777)
    (l)   the net impact of enacted revenue measures on incoming
    revenue of the State Highway Fund that is not dedicated
    under Article 8, Section 7-a of the Texas Constitution;
    (2)   as a gain, any reduction in appropriations made from State
    Highway Fund No. []006 to state agencies other than the
    Department of Transportation; and
    (3)   as a loss, any reduction in appropriations made to the
    Department of Transportation from the General Revenue
    Fund.
    General Appropriations Act, 81stLeg., R.S., ch. 1424, art. IX, § 17.l0(a)-(b), 2009 Tex. Gen. Laws
    4483,5374. You seek clarification about the meaning of section 17.10(b), specifically:
    1) Should State Highway Fund "transfers of appropriations" in
    2008-09 to the Health and Human Services Commission and the
    Texas Workforce Cominission be included as a gain within the
    calculations required by Section 17.l0(b)(2)?
    2) Should State Highway Fund "transfers of appropriations" in
    2010-11 to the newly created Department of Motor Vehicles be
    included within the calculations required by Section 17.1 O(b)(2)?
    Request Letter at 2.
    A recent opinion of this office addressed an issue related to your second question, so we will
    respond to that question first. You ask whether "State Highway Fund 'transfers of appropriations'
    in 2010-11 to the newly created Department of Motor Vehicles [should] be included within the
    calculations required by Section 17.1 O(b)(2)." Id In Attorney General Opinion GA-0776, this office
    said that a court would likely conclude that the transfer of fimds from the Texas Department of
    Transportation ("TxDOT") to the Department of Motor Vehicles ("DMV") did not constitute an
    "appropriation." Rather, based on the reasoning of the Texas Supreme Court in Jessen Associates,
    Inc. v. Bullock, and the plain language of the Act, we opined that a court would likely conclude that
    the Act directed the use of fimds and personnel that were initially and expressly appropriated to
    TxDOT as of the effective date of the 2010-2011 Act. Jessen Assocs., Inc. v. Bullock, 
    531 S.W.2d 593
    , 599 (Tex. 1975); see Tex. Att'y Gen. Op. No. GA-0776 at 4. The language of section
    17.1 O(b)(2) addresses "reductions in appropriations." Because the transfer to the DMV likely did
    not represent an appropriation to the DMV, it follows that a court could reasonably conclude that
    such transfers to the newly-created DMV should not be included within the calculations required by
    section 17.1 O(b)(2).
    You also ask whether "State Highway Fund 'transfers of appropriations' in 2008-09 to the
    Health and Human Services Commission and the Texas Workforce Commission [should] be
    The Honorable Susan Combs - Page 3             (GA-0777)
    included as a gain within the calculations required by Section 17.1 O(b)(2)." Request Letter at 2. The
    2008-2009 appropriation to TxDOT required that certain amounts from Fund No. 006 be transferred:
    TxDOT "shall transfernot less than $53,902,291 in State Highway Fund No. 006 funds to the Health
    and Human Services Commission" ("HHSC"). Moreover, TxDOT "shall transfer not less than
    $6,829,352 in State Highway Fund No. 006 funds to the Texas Workforce Commission" ("TWC").
    General Appropriations Act, 80th Leg., R.S., ch. 1428, art. IX, § 19.77(e)(1), (3), 2007 Tex. Gen.
    Laws 4911, 5798. The current appropriations act does not include transfers to HHSC or TWC. See
    Request Letter at 2.
    It is a fundamental rule of statutory construction that courts, and by .extension this office,
    must attempt to ascertain the intent of the Legislature. Osterberg v. Peca, 
    12 S.W.3d 31
    , 38 (Tex.
    2000). We must apply this rule of statutory construction when considering provisions of the Act.
    See 
    Jessen, 531 S.W.2d at 599
    (stating that "this rule applies also in determining what constitutes
    an item of appropriation"). "[S]tatutory provisions are not isolated from their surrounding text and
    construed apart from their context." Id at 601. For example, in considering the validity of a rider
    in an appropriations act, the Jessen court, declaring that statutory provisions must be read as a whole
    and in context, declined to invalidate the rider on the basis of one questionable section. Id
    Therefore, our duty here must be to effectuate the legislative intent and to read statutes, including
    riders, as a whole and in context.
    It is not clear how a court would treat the 2008-2009 transfers to HHSC and TWC under
    section 17.1 O(b)(2). A court could apply the reasoning utilized in GA-0776 to conclude that, because
    the Legislature transferred to HHSC and TWC amounts initially appropriated to TxDOT, such
    transfers are not appropriations, but merely transfers that direct the use of funds appropriated
    elsewhere. See General Appropriations Act, 80th Leg., R.S., ch. 1428, art. VII, 2007 Tex. Gen. Laws
    4911,5576 (Strategy D.l.2.: Client Ti:ansportation Services). Under such a construction, a court
    might not view the transfers as "appropriations made ... to state agencies other than [TxDOT]." If
    a court were to take that position, then for purposes of section 17.1 O(b)(2), the amount appropriated
    to TxDOT will not have changed from one biennium to the next. Therefore, the fact that TxDOT
    is not instructed to make these transfers in 2010-2011, as it was in 2008-2009, would not be
    considered a "reduction in appropriations made to state agencies other than [TxDOT]." The end
    result of this construction would be that there is no resulting "gain" to TxDOT within the
    calculations required by section 17.1 O(b )(2).
    A court could, however, look to the facts and circumstances surrounding, and the effects of,
    the 2008-2009 transfers to HHSC and TWC, particularly as they compare to the transfers to the
    DMV, in determining the appropriate treatment of the transfers under section 17.1 O(b)(2). The facts
    and circumstances ofthe transfers to HHSC and TWC differ substantially from those associated with
    the transfer to the DMV in 2010-2011. When making a determination about what the Legislature
    intended when it used the phrase "reduction in appropriations made ... to state agencies other than
    TxDOT" in section l7.10(b)(2), a court could take note of the following.
    The language ofthe Act transferring funds to the DMV was contingent upon the creation of
    the DMV. Under House Bill 3097, which created the DMV, and section 17.1 O(b)(2) of the Act, the
    The Honorable Susan Combs - Page 4
    Legislature transferred from TxDOT to the DMV a number of responsibilities, together with all
    funds and positions associated with those responsibilities. The transfer of such duties and a
    commensurate amount of resources pursuant to those provisions should not affect the funding
    available to TxDOT for functions not transferred to the DMV.
    In contrast, the Legislature in 2008-2009 appropriated a particular amount of money to
    TxDOT, and then directed TxDOT to transfer those funds to HHSC and TWC. When the
    Legislature appropriated money to TxDOT in 2010-2011, it did not reenact the riders transferring
    funds to those agencies. The Legislature's decision not to reenact the riders resulted in the
    availability of additional funding to TxDOT for its functions. Briefing received by this office argues
    that the intent of the Legislature in enacting section 17.10 of the Act was to ensure that TxDOT had
    available at least the same amount of funds for TxDOT functions not transferred to the DMV,z
    Under such a construction, a court could conclude that, because the Legislature's decision not to
    reenact the provisions transferring funds to HHSC and TWC resulted in the availability of additional
    funds to TxDOT for the 2010-2011 biennium, thete has been a "reduction in appropriations" from
    Fund 006 to agencies other than TxDOT. Thus, such amounts should be included as a gain for
    purposes of the section 17.10(b)(2) calculation.
    Section 17.1O(b) of the Act makes the allocations under subsection (a) ofthe rider contingent
    upon a finding of fact by the Comptroller that the calculations set forth in section 17.1 O(b) "result
    in a net increase for the 20 10-20 11 state fiscal biennium of at least $182 million over the 2008-2009
    state fiscal biennium." In conditioning the allocations on a finding offact from the Comptroller, the
    Legislature charged the implementation of the rider to the Comptroller. In such event, the courts will
    accord some deference to the Comptroller's interpretation of the Act, so long as that construction
    does not contradict the rider's plain language and is reasonable. See In re Sw. Bell Tel. Co., L.P.,
    
    226 S.W.3d 400
    , 403 (Tex. 2007) ("courts should defer to appropriate administrative agencies when
    ... the agency is staffed with experts trained in handling complex problems within the agency's
    purview, and ... great benefit is derived from the agency's uniform interpretation oflaws within its
    purview"). With regard to the question of whether the 2008-2009 transfers to the HHSC and TWC
    should be included as a "gain" within the calculations required by section 17.1O(b)(2), we believe
    that a court could conclude that either result would be reasonable .and not contrary to the plain
    meaning of the rider. As such, the initial determination is within the sound discretion of the
    Comptroller.
    'See Brief from Bruce Todd, Executive Director, Texas Rail Relocation and Improvement Association, to
    Honorable Susan Combs at 2-3 (Oct. 23, 2009) (on file with the Opinion Committee).
    The Honorable Susan Combs - Page 5             (GA-0777)
    SUMMARY
    Because a court would likely determine that, under the
    20 I 0-20 II General Appropriations Act, the transfer of amounts from
    the Texas Department of Transportation to the Department of Motor
    Vehicles (the "DMV") did not represent an appropriation to that
    agency, it follows that a court would likely conclude that such
    transfers to the newly-created DMV should not be included within the
    calculations required by section 17.1 O(b)(2), article IX of the Act.
    It is unclear whether a court would conclude that the transfer
    of funds to the Health and Human Services Commission and the Texas
    Workforce Commission in the 2008-2009 General Appropriations Act,
    and the absence of such transfer in the 2010-2011 General
    Appropriations Act, represents a "gain" for purposes of the section
    17.10(b)(2) calculation. In conditioning potential allocations to the
    Texas Rail Relocation and Improvement Fund on a fmding of fact from
    the Comptroller of Public Accounts, the Legislature charged the
    Comptroller with the implementation of the rider. Because a court
    could conclude that more than one construction is reasonable and not
    in conflict with the plain language ofthe rider, the initial determination
    of whether the transfers should be included as a "gain" for purposes of
    the section 17.1 O(b )(2) calculation is within the sound discretion of the
    Comptroller.
    ANDREW WEBER
    First Assistant Attorney General
    JONATHAN K. FRELS
    Deputy Attorney General for Legal Counsel
    NANCY S. FULLER
    Chair, Opinion Committee
    Rick Gilpin
    Assistant Attorney General, Opinion Committee
    

Document Info

Docket Number: GA-0777

Judges: Greg Abbott

Filed Date: 7/2/2010

Precedential Status: Precedential

Modified Date: 2/18/2017