                                ATTORNEY GENERALOF                        TEXAS
                                             GREG       ABBOTT




                                              February 2 1,2006



Mr. Paul Mallett, Executive Director                Opinion No. GA-040 1
Commission on State Emergency
   Communications                                  Re: Whether the Commission on State Emergency
333 Guadalupe Street, Suite 2-212                  Communications or the Comptroller of Public Accounts
Austin, Texas 78701-3942                           has primary jurisdiction to determine in the context of
                                                   a claim for a refund whether the 9-l-l emergency
                                                   service fee imposed on wireless telecommunications
                                                   connections by Texas Health and Safety Code section
                                                   771.071 l(a) is applicable to a service provider’s
                                                   specific service (RQ-0370-GA)

Dear Mr. Mallett:

         You ask whether the Commission on State Emergency Communications (the “Commission”)
or the Comptroller of Public Accounts (the “Comptroller”) has primary jurisdiction to determine in
the context of a claim for a refund whether a 9-l-l emergency service fee imposed on wireless
telecommunications    connections by Texas Health and Safety Code section 771.071 l(a) applies to
a service provider’s specific service.’

          A “9-l - 1 service” is a telecommunications  service that enables a user of the public telephone
system “to reach a public safety answering point by dialing the digits 9-l -1.” TEX. HEALTH &
SAFETY CODE ANN. $ 771.001(6) (Vernon 2003). Service is generally provided by local service
districts, which may participate in 9- 1- 1 service plans developed by regional planning commissions.
Id. $0 771.056-.058 (Vernon2003), 772.105-.110(VernonSupp.2005),772.210-.310(Vernon2003
& Supp. 2005). The Commission administers the implementation of statewide 9-l-l service. Id.
9 77 1.05 1(a)( 1) (Vernon 2003).

         In the subchapter of the code concerning the financing of state emergency communications,
section 771.071 l(a) states that the Commission             shall impose a fee on each “wireless
telecommunications     connection,” commonly known as a cell phone. See id. 5 77 1.07 11 (a) (located
in chapter 77 1, subchapter D); see also id. 6 77 1.OOl(13) (definition of “wireless telecommunications



          ‘Letter from Mr. Paul Mallett, Executive Director, Commission on State Emergency Communications, to
Honorable Greg Abbott, Attorney General of Texas (Aug. 3,2005) (on file with the Opinion Committee, also available
at http://www.oag.state.tx.us) [hereinafter Request Letter].
Mr. Paul Mallett        - Page 2                         (GA-040 1)




connection”); Request Letter, supra note 1, at 2.2 The fee is statutorily established at 50 cents per
month per connection.     TEX. HEALTH & SAFETY CODE ANN. 0 771.0711 (b) (Vernon 2003). A
“wireless service provider” must bill the fee to subscribers, receive payment, and remit amounts so
collected to the Comptroller, who deposits the money to the credit of the 9-l- 1 services fee account.
Id. $4 771.071 l(b), .073(a).3 The Commission administers the distribution of money appropriated
to the Commission from the 9-l-l service fee. Id. $j§771.056(d), .071(f), .071 l(c), .078. Money
from fees collected under section 77 1.07 11 “may be used only for services related to 9-l -1 services.”
Id. 5 771.071 I(c).

         Your question is prompted by a wireless service provider’s claim for a refund, filed with both
the Commission and the Comptroller. Request Letter, sup-a note 1, at 1. The provider contends that
it is not subject to section 771.071 l’s requirements because the provider’s wireless services are
offered on a prepaid basis. Id. You clarify that the Commission does not seek an opinion about the
applicability of the statute to the prepaid service provider. Rather, your specific question is “whether
the Commission or the Comptroller has primary jurisdiction to determine whether the 9-l -1
emergency service fee imposed on wireless telecommunications          connections by Texas Health and
Safety Code Section 771.07 11 (a) is applicable to a specific service provided by a service provider.”
Id. at 3; TEX. HEALTH & SAFETY CODE ANN. 8 77 1.0711 (Vernon 2003).

         Your question is essentially a matter of statutory construction-whether       the legislature
intended the Commission or the Comptroller to decide, in the first instance, the applicability of the
emergency service fee on wireless telecommunications       connections to a specific service, thereby
obligating the service provider to bill, receive, and remit the fee to the Comptroller under section




      ‘The Commission is also authorized to impose fees “on each local exchange access line or equivalent.” TEX.
HEALTH& SAFETYCODEANN. 9 77 1.07 l(a) (Vernon 2003).

         3”Wireless service provider” is defined as:

                     a provider of commercial mobile service under Section 332(d), Federal
                     Telecommunications Act of 1996 (47 U.S.C. Section 151 et seq.), Federal
                     Communications Commission rules, and the Omnibus Budget Reconciliation Act
                     of 1993 (Pub. L. No. 103-66), and includes a provider of wireless two-way
                     communication service, radio-telephone communications related to cellular
                     telephone service, network radio access lines or the equivalent, and personal
                     communication service. The term does not include a provider of:

                             (A) a service whose users do not have access to 9- 1-1 service;

                             (B) a communication channel used only for data transmission;

                             (C) a wireless roaming service or other nonlocal radio access line service;
                             or

                             (D) a private telecommunications service.

Id. 9 771.001(12).
Mr. Paul Mallett - Page 3                               (GA-040 1)




771.0711. Consequently, we review section 771.071 l’s allocation of responsibility                        between the
Commission and the Comptroller.4

        Section 771.051 begins with a clear statement about the Commission’s role under the
chapter: “The commission is the state’s authority on emergency communications.”        TEX. HEALTH
& SAFETY CODE ANN. $ 77 1.05 1(a) (Vernon 2003). The Commission has the duty to “administer
the implementation of statewide 9- 1- 1 service.” Id. 0 771.05 l(a)(l).       This duty requires the
Commission to oversee or coordinate the efforts of a complex amalgam of local emergency
communication      districts of various types, regional planning commissions,        local exchange
providers, intrastate long distance providers, wireless service providers, and others. See, e.g., id.
~~771.001(3)-(5),(10),(12),.051(a)(1)-(10),.055-.058(Vemon2003),772.101-.455(Ve~on2003
& Supp. 2005). A major feature of the Commission’s duties is its relation to regional planning
commissions. The Commission must enter into contracts with the regional planning commissions
to provide 9-l-l service, assist them in the establishment of such service, develop performance
standards for equipment and operations that regional plans are to follow, and review and approve
or disapprove regional plans. Id. $3 771.051(a)(2), (3), .056 (Vernon 2003).

         Concerning the financing of state emergency communications, the Commission is authorized
to impose a 9-1-l emergency service fee on each “local exchange access line [sometimes referred
to as a wire line or land line] or equivalent local exchange access line,” id. 5 77 1.07 1(a), and on each
wireless telecommunications       connection.    Id. 5 771.071 l(a). The Commission is required to
determine by rulemaking what constitutes a local exchange access line and an equivalent local
exchange access line, reviewing its definition annually in light of changing circumstances such as
technological development. Id. 6 771.063(a)-(c). The Commission may set the fee, not to exceed
50 cents a month per line, in different amounts in different regions based on costs in the region. Id.
rj 771.071(b)-(c). Also, the Commission must impose an equalization surcharge on all intrastate
long-distance service customers. Id. 9 771.072(a). Local exchange service providers and intrastate
long-distance service providers must collect the respective fees and remit them to the Comptroller
in a manner similar to that required by section 771.0711 concerning wireless service providers. Id.
4 771.071(e). However, for all fees and surcharges under sections 771.071,771.0711, and 771.072,
the Commission may establish payment schedules and minimum thresholds.               Id. 6 771.073(f).

        The Commission must allocate fees collected under sections 77 1.071 and 771.07 11 to each
region according to statutorily specified formulas. Id. 5 771.078(b)(l)-(2).            Additionally, the
Commission may allocate remaining funds to a region in an “amount that the commission considers
appropriate to operate 9- l- 1 service in the region according to the [region’s] plan and contracts” with
the Commission. Id. 6 771.056(d). Specifically with respect to the wireless telecommunications



         4The analogous “primary jurisdiction doctrine” is a judicially-created doctrine that decides whether a court
should abate a proceeding before it to allow an agency to make the initial determinations in a dispute when the court and
the agency have concurrent jurisdiction. See Subaru ofAm., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212,221
(Tex. 2002). Also, as between agencies, if an agency has “primary and plenary jurisdiction” over a regulated industry,
generally “[olther state agencies should recognize the validity of the orders of the primary agency.” Bullock v. Shell
Pipeline Corp., 671 S.W.2d 715, 719 (Tex. App.-Austin 1984, writ refd n.r.e.).
Mr. Paul Mallett     - Page 4                         (GA-0401)




connection fee, section 77 1.07 11 states that the fees “may be used only for services related to 9- 1- 1
services.” Id. 0 77 1.07 11 (c). That section also requires the Commission or a municipal emergency
services district or a chapter 772 emergency services district to reimburse a wireless service provider
according to state law “for reasonable expenses for network facilities, including equipment,
installation, maintenance, and associated implementation costs.” Id. 3 771.07 1 l(g).

         As originally enacted, section 771.0711 required the Commission to receive the fee from
wireless telecommunication         providers and authorized the Commission to establish collection
procedures. See Act of May 23, 1997,75th Leg., R.S., ch. 1246, $ 2, 1997 Tex. Gen. Laws 4720,
4720-2 1. Accordingly, the Commission promulgated rules for collection procedures and contested
case hearings in title 1, sections 253.1-.3 1 of the Texas Administrative Code. See 22 Tex. Reg. 9786
(1997), adopted23 Tex. Reg. 1540 (1998) (codified at 1 TEX.ADMIN. CODE $5 253.1-.31); 28 Tex.
Reg. 3666 (2003) (repeal of 1 TEX. ADMIN. CODE $0 253.1-.3l), adopted28 Tex. Reg. 4885 (2003)
(Comm’n on State Emergency Communications).             However, in 1999 the legislature shifted authority
for collecting past due fees from the Commission to the Comptroller. Act of May 30, 1999, 76th
Leg., RX, ch. 1405,§ 37,1999 Tex. Gen. Laws 4739,4752; see generally Tex. Att’y Gen. Op. No.
JC-0284 (2004). Further, in 2001 the legislature amended section 771.0711 to require service
providers to pay fees collected from subscribers to the Comptroller instead of to the Commission.
Act of May 26,200 1,77th Leg., R.S., ch. 1158,§ 8 1,200 1 Tex. Gen. Laws 2570,26 12. According
to the bill analysis for the bill as enrolled, the purpose of the 200 1 legislation was to “streamline and
enhance the [Comptroller’s] administration of the state’s fiscal matters.” HOUSE COMM. ON WAYS
& MEANS, BILL ANALYSIS, Tex. H. B. 2914,77th Leg., R.S. (2001).

         As a result of these changes to chapter 771, the Comptroller has a number of fiscal
responsibilities under chapter 771. The Comptroller must receive the fees remitted by the wireless
telecommunications    provider and deposit them to the credit of the 9- 1- 1 services fee account. TEX.
HEALTH & SAFETYCODE ANN. 6 771.071 l(b) (Vernon 2003). At the Comptroller’s discretion or
upon the Commission’s notification of irregularities concerning a provider, the Comptroller may
conduct an audit of a service provider, which must include an audit of “collections and
disbursements to determine if the provider is complying with [chapter 77 I] .” Id. 5 771.076(a)-(b).
Under section 771.077(a), the Comptroller “may establish collection procedures to collect past due
amounts . . . from a service provider” that fails to deliver required fees. Id. $ 771 .077(a).5 That
section further states that “Subtitles A and B, Title 2, Tax Code, apply to the administration and
collection of amounts by the comptroller under this subchapter.” Id. 9 771.077(a).

         Title 2, subtitle B, chapter 111 of the Tax Code concerns enforcement and collection. TEX.
TAX CODE ANN. $6 111 .OOl-.353 (Vernon 2001 & Supp. 2005). Section 111.104 permits a refund
“[i]f the comptroller finds that an amount of tax, penalty, or interest has been unlawfully or
erroneously collected.” Id. 8 111.104(a) (Vernon Supp. 2005). The Comptroller may grant or deny
such a claim after an informal review or render a decision after a hearing according to procedures
prescribed by the Comptroller. Id. 5 $ 111.1042(a), .105(a) (Vernon 200 1 & Supp. 2005). A person


        ‘Additionally,the Comptroller may establish procedures for collecting past due fees directly from individual
subscribers. TEX. HEALTH & SAFETY CODE ANN. $5 77 1.0711(f), .073(c) (Vernon 2003).
Mr. Paul Mallett - Page 5                              (GA-040 1)




dissatisfied with the decision after the administrative hearing may, in appropriate circumstances                 and
following proper procedure, sue for the refund in court. Id. 9 112.15 1(a) (Vernon 2001).

        No statute addresses how to resolve or who should resolve a wireless telecommunications
service provider’s contention that it provides a service that is not subject to the fee in section
771.071 l(a). You do not elaborate about the provider’s contention, other than to say that it was
raised in connection with a claim for a refund and based on the fact that the services were provided
on a prepaid basis. Request Letter, supra note 1, at 1. We assume the question involves mixed
questions of statutory construction and fact requiring a degree of expertise concerning emergency
communications.

        Administrative agencies have only “those powers the law confers upon them in clear and
express statutory language and those reasonably necessary to fulfill a function or perform a duty that
the Legislature has expressly placed with the agency,” In re Entergy Corp., 142 S.W.3d 316,
322 (Tex. 2004). The Commission’s overriding function in chapter 771 is to administer the
implementation of statewide 9-l -1 service. See TEX. HEALTH& SAFETY CODE ANN. 5 77 1.05 1(a)( 1)
(Vernon 2003). The intent to centralize the state’s emergency communications expertise in the
Commission is manifest in the direct statement that the “commission is the state’s authority on
emergency communications.”      Id. 5 771.05 1(a). The Commission is expressly required to impose
the fee on wireless telecommunications    connections. Id. 6 771.07 11(a). From the imposition of the
fee flows the providers’ duties to bill, receive, and remit the fee. Id. $5 771.071 l(a)-(b), .073(a).
The Commission’s authority to resolve a claim about the applicability of section 771.071 l(a) to a
wireless telecommunications    connection based on the nature of the provider’s service is therefore
clearly within the Commission’s purview.

         On the other hand, the Commission’s authority to order a refund is extremely limited. See
id. 6 77 1.073(g) (prohibiting a recovery of fees erroneously billed and remitted to the Commission
except in limited circumstances).    The Commission does not appear to have the authority to grant
the relief requested under the circumstances presented. See Request Letter, supra note 1, at 1. Under
chapter 77 1 of the Health and Safety Code and section 111.104 of the Tax Code, the authority to
order such a refund lies with the Comptroller. See TEX. HEALTH& SAFETYCODE ANN. 0 77 1.077(a)
(Vernon 2003); TEX. TAX CODE ANN. § 111.104(a) (Vernon Supp. 2005). The legislature transferred
the Commission’s collection authority to the Comptroller to maximize efficiency in collecting the
fees. See HOUSE COMM. ON WAYS & MEANS, BILL ANALYSIS, Tex. H. B. 2914, 77th Leg., R.S.
(2001). The legislature did not vest the Comptroller with authority to impose the fee on wireless
telecommunications    connections, however. See TEX. HEALTH& SAFETYCODE ANN. 0 77 1.07 11(a)
(Vernon 2003). Nor do we discern in chapter 771 the intent for the Comptroller to duplicate the
expertise of the Commission in matters concerning the implementation of statewide 9-l -1 services.6


          6For this reason, we believe that a court would give deference to the Commission’s determinations about
emergency communications that it likely would not afford to decisions by the Comptroller about the same issues. See
City of Corpus Christi v. Pub. Util. Comm ‘n, 5 1 S.W.3d 23 1,26 1 n. 143 (Tex. 2001) (concerning deference given to
construction of a statute by an agency charged with its administration); Buddy Gregg Motor Homes, Inc. v. Motor Vehicle
Bd. of Tex. Dep ‘t of Transp., 156 S.W.3d 91, 102 (Tex. App.-Austin 2004, pet. denied) (stating that a court may afford
less deference to an agency’s determination in a matter outside of its expertise).
Mr. Paul Mallett   - Page 6                      (GA-040 1)




Consequently, the Comptroller does not have the authority to decide in the first instance whether the
fee in section 771.07 11(a) applies to a wireless telecommunications connection based on the nature
of the wireless service provider’s particular service.

         In short, the Commission has the authority to decide the applicability of section 771.0711 (a)
to a particular service offered by a wireless service provider, but not the authority to grant the relief
requested; the Comptroller may grant a refund but does not have the authority to resolve the issue
in the first instance. Nevertheless, chapter 771 as a whole reflects an intent that the Commission and
the Comptroller cooperate in the administration of fee payment and collection. The Comptroller is
authorized to establish collection procedures generally and particularly to “establish procedures to
be used by the commission to notify the comptroller of a service provider’s . . . failure to timely
deliver the fees or surcharges.” See id. 0 771.077(a)-(b). A claim for a refund must be filed with the
Comptroller according to that office’s rules and the Tax Code, but if the claim is based on the
applicability of section 77 1.07 11(a) to a wireless telecommunications    connection due to the nature
of the provider’s service, the Comptroller should abate the proceeding to allow the Commission to
determine the issues singularly within its expertise.
Mr. Paul Mallett - Page 7                     (GA-040 1)




                                       SUMMARY

                        The Commission on State Emergency Communications, not
               the Comptroller of Public Accounts, has authority to determine
               whether section 771.071 l(a) of the Texas Health and Safety
               Code, imposing a 9-l-l         emergency service fee on wireless
               telecommunications     connections,   applies to a wireless service
               provider’s specific service. The Comptroller, not the Commission,
               has authority to order a refund of fees collected under section
               77 1.07 11. A claim for a refund of the fee imposed under that section
               must be filed with the Comptroller, but if the claim presents issues
               particularly within the Commission’s expertise, the Comptroller
               should abate the administrative proceeding to allow the Commission
               to make the initial determination of those issues.

                                              Very truly yours,




                                          ’ Attorney&al           of Texas



BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
