                             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
