Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 21, 2010
The Honorable Jeff Wentworth Opinion No. GA-0776
Chair, Senate Jurisprudence Committee
Texas State Senate Re: Whether the transfer of certain funds and
Post Office Box 12068 positions from the Texas Department of
Austin, Texas 78711-2068 Transportation to the Texas Department of Motor
Vehicles in section 17.30(b), article IX of the
20 I 0-20 II General Appropriations Act constitutes
an appropriation (RQ-0838-GA)
Dear Senator Wentworth:
You ask whether the transfer of certain funds and positions from the Texas Department of
Transportation ("TxDOT") to the Department of Motor Vehicles ("DMV") provided in section
17.30(b), article IX of the 2010-2011 General Appropriations Act (the "Act") "constitutes an
'appropriation' or is merely language directing and qualifYing the use of funds appropriated
elsewhere" in that Act. I
Part 17 of article IX of the 2010-2011 General Appropriations Act, enacted by the
Legislature during its 2009 regular session, is entitled "Contingency and Other Provisions." General
Appropriations Act, 81 st Leg., R.S., ch. 1424, art. IX, pt. 17,2009 Tex. Gen. Laws 4485, 5370 (the
"General Appropriations Act"). One of the enumerated contingency provisions is section 17.30(b),
entitled "Contingency Appropriation for House Bill 300 or House Bill 3097." Id § 17.30(b), at
5379. Section 17.30(b) reads as follows:
b. Contingent on the enactment of House Bill 300 or House Bill
3097, or similar legislation relating to the creation of the
Department of Motor Vehicles and the transfer of certain
programs to the Department of Motor Vehicles from the
Department of Transportation, and subject to approval by the
Legislative Budget Board, the Department of Transportation shall,
in the time and manner prescribed by the legislation, transfer to
the Department of Motor Vehicles all funds and full-time-
equivalent (FTE) positions appropriated to the Department of
'Request Letter at 1 (available at http://www.texasattomeygeneral.gov).
The Honorable Jeff Wentworth - Page 2 (GA-0776)
Transportation for fiscal years 2010 and 2011 that are directly
associated with the programs and responsibilities required to be
transferred under the provisions ofthe legislation (estimated to be
$103.7 million in All Funds and 622.0 FTEs each year) plus any
additional FTE positions (not to exceed 75.0 FTEs) and
associated funding for personnel that primarily support the
programs to be transferred to the Department of Motor Vehicles.
The Legislative Budget Board is authorized to resolve any
disputes concerning the transfers identified in this rider.
Id.
,
While House Bill 300 did not become law, House Bill 3097 was enacted as subtitle M, title
7 of the Transportation Code. See Act of May 23,2009, 81st Leg., R.S., ch. 933,2009 Tex. Gen.
Laws 2485, 2485-2522. Because under the terms of House Bill 3097, a number of TxDOT
programs and positions were transferred to the newly-created DMV as of November 1,2009, the
contingency provided by section 17.30(b) occurred? Id. §§ 6.01 (a}-(c), 6.02(a), 6.03(a), at2519-20.
Thus, section 17.30(b) directs TxDOT to "transftr to the [DMV] all funds and full-time-equivalent
(PTE) positions appropriated to [TxDOT] for fiscal years 20 10 and 2011 that are directly associated
with the programs and responsibilities required to be transferred under the provisions of the
legislation ... plus any additional FTE positions ... and associated funding for personnel that
primarily support the programs to be transferred to the [DMV]." General Appropriations Act, art.
IX, § 17.30(b), at 5379 (emphasis added). You inquire whether the language of section 17.30(b)
constitutes an appropriation. Request Letter at 1.
The Texas Supreme Court has articulated a test for determining when a provision in a general
appropriations act constitutes an appropriation. In Jessen Associates, Inc. v. Bullock, the court
considered whether a rider to the 1976-1977 General Appropriations Act that authorized the
construction of certain enumerated projects without the consent of the Coordinating Board of the
Texas College and University System was an "item of appropriation" subject to veto by the
Governor. Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 596 (Tex. 1975). The rider permitted
the board of regents ofthe University of Texas System, inter alia, "(1) to expend such amounts of
its Permanent University Fund bond proceeds and/or other bond proceeds and such amounts of its
other available moneys as may be necessary to fund one or more of the following projects either in
whole or in part ... : Alterations and Additions to Law School." Id. at 597.
After discussing prior judicial authority regarding the meaning of the term "item of
appropriation," the Jessen court declared that the term "contemplates the setting aside or dedicating
of funds for a specified purpose. This is to be distinguished from language which qualifies or directs
the use of appropriated funds or which is merely incidental to an appropriation." Id. at 599. With
'The Legislative Budget Board has given the requisite approval. See Letter from John O'Brien, Director,
Legislative Budget Board, to Victor Vandergriff, Chairman of the Board, Texas Department of Motor Vehicles (Nov.
18,2009) (on file with the Opinion Committee).
The Honorable Jeff Wentworth - Page 3 (GA-0776)
respect to the rider in question, the court determined that the Legislature did not intend to appropriate
or set aside funds:
When the rider is read in connection with the requirements of Section
61.058, Texas Education Code, its purpose becomes clear. What the
Legislature intended was to give its approval to the enumerated
projects, and thereby eliminate the need for approval by the
Coordinating Board. There was no intent for the language of the rider
to set aside funds for these projects, because such funds were
appropriated elsewhere. The rider was intended merely to direct the
use of those funds by giving express legislative approval to the
projects specified.
Consequently, the rider cannot be construed as an "item of
appropriation" as that term is used in the Constitution.
Id at 600; see also id at 599. ("Of special significance in determining the legislative intent in this
case is the fact that the funds mentioned . • . are appropriated elsewhere in the General
Appropriations Act.")
In Jessen, the Comptroller of Public Accounts argued that if the rider is not an item of
appropriation, then it is general legislation in violation of article III, section 35 of the Texas
Constitution. 3 The court held that, although the rider did not itself appropriate funds, it was
nonetheless valid because, "[i]n authorizing the expenditure of funds, it relates to the appropriation
of funds. Likewise, it is germane to that subject. This subdivision merely directs the expenditure
of appropriated funds, and is therefore permissible under Article III, Section '35, of the [Texas]
Constitution." Id. at 601.
The Texas Supreme Court's opinion in Jessen is instructive in the situation you pose.
Section 17.30(b) does not itself set aside or dedicate funds to the DMV. Rather, it directs TxDOT
to transfer funds and positions to the DMV in the future, if and when the DMV is created: "the
Department of Transportation shall ... transfer to the Department of Motor Vehicles." General
Appropriations Act, art. IX, § 17.30(b), at 5379. The actual appropriation in question was made to
TxDOT upon the effective date ofthe Act, i.e., September 1,2009. See General Appropriations Act,
at 5444. As we have noted, the funds and positions addressed by House Bill 3097 did not transfer
to the newly created DMV until November 1,2009. Act of May 23,2009, 81st Leg., R.S., ch. 933,
§ 6.01,2009 Tex. Gen. Laws 2485, 2519-20. The Legislature's express use of the phrase "transfer
to the Department of Motor V ehiclesall funds ... appropriated to [TxDOT]" suggests that, in
3Article III, section 35 of the Texas Constitution provides that "[n]o bill ... shall contaio more than one
subject," and thus stands for the proposition that a general appropriations bill may not contaio general legislation. See
Jessen, 531 S.W.2d at 600; TEX. CONST. art. III, § 35. The appropriation offunds from the state treasury is considered
a siogle subject for the purposes of article III, section 35. See Jessen, 531 S.W.2d at 600.
The Honorable Jeff Wentworth - Page 4 (GA-0776)
enacting section 17.30(b), the Legislature was merely qualifying or directing the use of funds that
it expressly appropriated to TxDOT elsewhere in the Act. General Appropriations Act, art. IX,
§ 17 .30(b), at 53 79 (emphasis added). Thus, under the plain language of section 17 .30(b) and the
test announced by the Texas Supreme Court in Jessen, a court would likely conclude that section
17.30(b) does not constitute an appropriation to the DMV. Rather, section 17.30(b) would likely be
construed as language that merely directs the use of funds appropriated elsewhere in the 2010-2011
General Appropriations Act. 4
'In Attorney General Opinion MW-51, this office considered a rider to the appropriation for the Texas
Department of Human Resources, which authorized and directed that department "to construct a state office building,"
described the total square footage of the building, and declared the "intent of the Legislature" that the building house
certain state agencies, and the further intent thatthe Department ofMental Health and Mental Retardation transfer certain
described property in Austin to the State Board of Control. Tex. Att'y Gen. Op. No. MW-51 (1979) at 3-4. The
Attorney General declared that "[t]hese two paragraphs do not constitute an 'item' of appropriation under the test
established in Jessen. They do not set aside or dedicate funds. Instead, the language directs and qualifies the use of
funds appropriated elsewhere." Id. at 4.
The Honorable Jeff Wentworth - Page 5 (GA-0776)
SUMMARY
A court would likely conclude that the transfer of certain
funds and positions from the Texas Department of Transportation to
the Texas Department of Motor Vehicles in section 17.30(b), article
IX of the 2010-2011 General Appropriations Act does not constitute
an appropriation to the Department of Motor Vehicles. Rather,.
section 17 .30(b) would likely be construed as merely directing the use
offunds appropriated to the Department of Transportation in another
portion of the 2010-2011 General Appropriations Act.
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