Untitled Texas Attorney General Opinion ( 2014 )

GREG
0
ATTORNEY GENERAL OF TEXAS
ABBOTT
April21, 2014
The Honorable Tan Parker Opinion No. GA-l 052
Chair, Committee on Corrections
Texas House of Representatives Re: Implementation of Senate Bill 1678, relating
Post Office Box 2910 to the Major Events Trust Fund
Austin, Texas 78768-2910 (RQ-1159-GA)
Dear Representative Parker:
You inquire whether the "Comptroller of Public Accounts must give full application to certain
amendments to the Major Events Trust Fund [("METF")] statute made by [Senate Bill] 1678." 1
Specifically, you ask:
1) Is it clear that the Legislature chose a specific venue for an annual
event to be included in the METF?
2) Does the ComptroHer have sufficient authority to promulgate rules
implementing S.B. 1678 immediately under applicable state laws? If so,
should the Comptroller promulgate rules to implement this "largest
venue" provision?
Request Letter at 5.
The METF statute, contained in section SA, article 5190.14 of the Texas Revised Civil Statutes,
provides a funding mechanism by which the Comptroller of Public Accounts may expend funds for
costs associated with the holding of an "event." See TEX. REV. Crv. STAT. ANN. art. 5190.14, § 5A(d),
(f) (West Supp. 2013) (providing for a trust fund for an event with a portion of the projected
incremental increase in local tax receipts attributable to the event). The term "event" is defined by an
extensive list of specific sporting, entertainment, and political events. !d. § 5A(a)(4). An event must
be listed in the definition of "event" to be eligible for funding under the METF. !d. §5A(a-1). The
inclusion of an event in the definition does not by itself make the event eligible for funding: Section
5A(a-1) expressly provides that "[a] listed event may receive funding under this section only if'' the
1
See Letter from Honorable Tan Parker, House Comm. on Corrs., to Honorable Greg Abbott, Tex. Att'y Gen. at 1
(Oct. 21, 2013 ), http://www.texasattorneygeneral.gov/opin ("Request Letter").
The Honorable Tan Parker - Page 2 (GA-1052)
event satisfies certain requirements, two of which involve the work of a site selection organization. I d.
§ SA(a-1)(1)-(2). A "site selection organization" is defined to include a list of governing or
administrative bodies relating to the various events.Z Id. § 5A(a)(5); compare id. § 5A(a)(4) (defining
"event" to include a Super Bowl and a National Collegiate Athletic Association Final Four tournament ·
game), with id. § 5A(a)(5) (defining "site selection organization" to include the National Football
League and the National Collegiate Athletic Association).
Senate Bill 1678 added three items to the definition of "event": "the X Games," "a mixed
martial arts championship," and "the largest event held each year at a sports entertainment venue in
this state with a permanent seating capacity, including grandstand and premium seating, of not less
than 125,000" (the "largest event"). Id. § 5A(a)(4). Senate Bill 1678 did not amend the definition of
"site selection organization" to add any governing or administrative bodies relating to the three new
events. See generally id. § 5A(a)(5). By the terms of the amended statute, an event generally is not
eligible for METF funding unless all four requirements in subsection (a-1) are met. Id. § SA(a-1).
Senate Bill 1678 exempts one new event-the largest event-from the eligibility requirement of
(a-1)(1), which involves a site selection organization. See id. § 5A(a-2). But the bill does not exempt
the largest event from the other eligibility requirements in subsections (a-1)(2)-(4), including (a-1)(2).
See id. § SA(a-1)(2)-(4). Thus, the statutory requirement that a site selection organization select for
the event a sole site in this state or region remains in place. Id. § SA(a-1)(2). Without such a selection
by a site selection organization, an event cannot satisfy subsection (a-1 )(2) and thus is ineligible for
METF funding. Moreover, the Comptroller's fund disbursement responsibilities and duties are directly
limited by the eligibility requirements and the documentation responsibilities of a site selection
organization. See id. § 5A(p) (providing that "[t]he comptroller may not undertake any of the
responsibilities or duties set forth in this section unless" the event meets the funding requirements
including those in subsection (a-1), and the request is accompanied by documentation from a site
selection organization).
Your first question is, in essence, about the Legislature's intent in enacting Senate Bill 1678 to
choose "a specific venue for an annual event to be included in the METF." Request Letter at 5. In
statutory interpretation, courts seek to effectuate the Legislature's intent but are nonetheless
constrained by the language of the enactment. See Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492,
493 (Tex. 2013) ("A fundamental constraint on the court's role in statutory interpretation is that the
Legislature enacts the laws of the state and the courts must find their intent in that language and not
elsewhere."); Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 453 (Tex. 2012) (noting that the "intent of
the Legislature is derived from the language it finally enacted"). Further, in construing statutes, courts
look to the whole of the statute, not just isolated provisions. See Tex. Mut. Ins. Co., 381 S.W.3d at 454
(stating that "[L]egislative intent emanates from the [statute] as a whole, and not from one isolated
provision"). Despite the Legislature's apparent selection of a particular venue for the largest event,
when considered as a whole, as explained above the language of article SA as amended by Senate Bill
2
The METF statute contemplates that a site se lection organization will select a site in the state pursuant to an
applicati on from a local entity . TEX. REV. IV. STAT. ANN. art. 5 190. 14 § 5A(b) (West Supp. 2013) (prescribing
Comptroller of Pub.f ic Account duties if site selected pursuant to local in itiation) 5A(a)(l) (defining "endorsing county"),
5A(a)(2) (defi ning "endorsing munici pality); see also Tex. Att'y Gen. Op. No. GA-0931 (20 I 2) at 1- 2.
The Honorable Tan Parker - Page 3 (GA-1052)
1678 requires that an "event" at that venue must still satisfy specified eligibility requirements in order
to receive METF funding.
Your primary legal question is your second question concerning the Comptroller's authority.
See Request Letter at 5. You suggest the Comptroller, through the adoption of rules, may provide a
mechanism for the largest event to benefit from METF funding despite the fact that the Legislature has
not designated a site selection organization for the event. See id. at 3-4. You argue that the
rulemaking process is the appropriate method to determine how the site selection organization duties
are to be carried out satisfactorily. See id. at 4.
An administrative agency has only those powers expressly conferred and those necessarily
implied to accomplish its express duties. Tex. Natural Res. Conservation Comm 'n v. Lakeshore Uti/.
Co., 164 S.W.3d 368, 377-78 (Tex. 2005); see generally TEX. CONST. art. IV, § 23 (requiring the
Comptroller of Public Accounts to perform duties required by law), TEX. Gov'T CODE ANN.
§§ 403.001-.455 (West 2013 & Supp. 2013) (governing the Office of the Comptroller of Public
Accounts). An agency may only adopt rules that "are authorized by and consistent with its statutory
authority." Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008). The power to
adopt rules, however, is not the power to make laws but only to adopt regulations to carry the statute
into effect. Cf TEX. CoNST. arts. II, § 1 (separating executive, judicial, and legislative powers), III, § 1
(vesting legislative power in the Legislature). Furthermore, "[a]n agency may not, however, exercise
what is effectively a new power, or a power contradictory to the statute, on the theory that such power
is expedient for administrative purposes." Pub. Uti/. Comm 'n of Tex. v. City Pub. Serv. Bd. of
San Antonio, 53 S.W.3d 310, 316 (Tex. 2001 ).
Here, the Comptroller has express authority to "adopt rules necessary to implement [section
SA]." TEX. REV. CJV. STAT. ANN. art. 5190.14, § 5A(v) (West Supp. 2013); see also 34 TEX. ADMIN.
CODE§§ 2.100-2.205 (2013) (Comptroller of Public Accounts). Yet, that general authority is likely
insufficient to remedy the Legislature's failure to designate a site selection organization that
corresponds to the largest event. The statute cannot be remedied by using administrative rulemaking to
reassign site selection organization duties because the involvement of a site selection organization is a
statutory eligibility requirement as well as a direct statutory limit on the Comptroller's authority to
perform disbursement duties. The Legislature could have designated a site selection organization for
the largest event, as it has for other events. It did not do so. If the Legislature wishes to make the
largest event eligible for METF funding, it must amend the statute. 3
Although we have not been provided with language of a proposed rule to consider, any rule
purporting to bypass the site selection organization involvement required by article 5190.14, section
SA(a-1)(2) would be directly contrary to the language of the statute. The Comptroller's Office has
authority to adopt rules to implement Senate Bill 1678, but that does not include authority to adopt a
3
It appears the defect in the statute was discovered during the same legislative session in which Senate Bill 1678
was adopted. See Tex. S. Con. Res. 48, 83rd Leg., R.S. (2013) (Introduced) (adding the National Association for Stock Car
Auto Racing to the definition of site selection organization). The resolution designed to remedy the defect failed to pass.
The Honorable Tan Parker - Page 4 (GA-1052)
rule that is contrary to the statute. See generally R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future
& Clean Water, 336 S.W.3d 619,624-25 (Tex. 2011).
The Honorable Tan Parker - Page 5 (GA-1052)
SUMMARY
While the Comptroller of Public Accounts is expressly authorized
by article 5190.14, section 5A(v) of the Revised Civil·Statutes to adopt
rules to implement the Major Events Trust Fund statute, such authority
does not include authority to adopt a rule that is contrary to the language
of the statute.
Very truly yours,
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee