                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 May 3,2006



The Honorable David Swinford                           Opinion No. GA-0427
Chair, Committee on State Affairs
Texas House of Representatives                         Re: Whether the Comptroller of Public Accounts
Post Office Box 2910                                   has constitutional or statutory authority to “research,
Austin, Texas 78768-2910,                              analyze and report” about a state agency and the
                                                       organic legislation creating the agency
                                                       (RQ-0424-GA)

Dear Representative     Swinford:

        You ask whether the Office ofthe Texas Comptroller of Public Accounts (the “Comptroller”)
has the constitutional or statutory authority to “research, analyze and report” about a state agency and
the organic legislation creating the agency, and you also ask about the scope of any such authority.’

         At the time of your request, you related that the Comptroller was conducting an investigation
involving the Texas Residential Construction Commission (the “TRCC”). See Request Letter, sugra
note 1, at 1. The investigation was undertaken at the request of State Representative Todd Smith?
Representative Smith asked the Comptroller, “[p]ursuant to [the Comptroller’s] constitutional and
statutory authority:     to “research, analyze and report on the Texas Residential Construction
Commission Act          and its impact on Texas homeowners and the Texas economy.” Smith Letter,
supra note 2, at 1. The Smith Letter further requested that the Comptroller examine six particular
questions:

                 In particular, I would request that your office make an independent
                 assessment ofwhether: (1) Texas homeowners who have tiled claims
                 with the TRCC are satisfied with the agency and its claims process,
                 and whether the TRCC has processed their claims fairly; (2) the
                 TRCC has allocated appropriate personnel and funds to process



         ‘Letter f?om Honorable David Swinford, Chair, Committee on State Affairs, Texas House ofRepresentatives,
to Honorable Greg Abbott, Attorney General of Texas (Dec. 1.6, 2005) (on file with the Opinion Committee, also
available at www.oag.state.tx.us) [hereinafter Request Letter].

        *See Letter from Honorable Todd Smith, Texas House of Representatives,     to Honorable &role K&on
Stnyhom, Texas Comptroller ofPublic Accounts (Aug. 16,2005) (attached to Request Letter, supra note 1) [hereinafter
Smith Letter].
The Honorable David Swinford        - Page 2      (GA-0427)




                claims appropriately and promptly; (3) the Act and the TRCC process
                provides disincentives for good building, which in the long-term may
                discourage homeownership and increase foreclosures in Texas as well
                as decrease economic growth and state revenues; (4) the TRCC’s
                state mandated warranty is unfair to Texas homeowners and will
                discourage in the long-term home purchases and economic
                development; (5)the TRCC’s claims process and Texas homeowners’
                rights comp~are unfavorably to those in other states; and (6) the board
                of the TRCC, in particular its ratio of public to homebuilder
                members, as well as the restrictions on who can serve as a public
                member, compares unfavorably to those of similar agencies in Texas
                or other states.

Id. The report requested by Representative       Smith has been completed and released.3

         The Texas Constitution establishes the office of the Comptroller as an elected position in the
executive department, TEX. CONST.art. IV, 5s l-2,23. An elected ‘officer possesses a “sphere of
authority” created and defined by the constitution and statutes. Abbottv. Pollock, 946 S.W.2d 513,
517 (Tex. App.-Austin       1997, writ denied); see also State ex rel. Dep’t of Criminal Justice v.
VitaPro Foods, Inc., 8 S.W.3d 316, 322 (Tex. 1999) (stating that “[a]11 state officers’ powers are
fixed by law”). A public officer’s express statutory authority carries with it implied authority
reasonably necessary to carry out the statute’s purpose. See Bullock v. Culvert, 480 S.W.2d 367,
371-72 (Tex. 1972) (stating that “[i]t is quite true that every specific, permissible act of a public
officer need not be expressed in a statute; we imply the authority to do those acts necessary to
achieve the power or object expressly granted, because the Legislature must have intended to grant
the constituent details within the larger commission”).

         The Texas Constitution does not purport to comprehensively define the Comptroller’s
functions and duties. A number of the Comptroller’s specific duties are mentioned throughout the
constitution.   See, e.g., TEX. CONST. art. III, § 28 (listing the Comptroller as a member of the
Legislative Redistricting Board); id. art. VII, 3 4 (Comptroller’s duties with respect to the Permanent
University Fund); id art. XVI, 5 70 (Comptroller’,s duties with respect to the Texas Growth Fund).
Concerning reports, the constitution requires the Comptroller before each regular legislative session
to report to the legislature and the Governor the financial condition of the treasury, estimating the
receipts and disbursements for the current fiscal year and “the anticipated revenue based on the laws
then in effect” for the succeeding biennium. Id. art. III, 5 49a(a). Also, the Comptroller must find
whether the amount appropriated in an appropriation bill is within estimated revenue. Id. art. III,
5 49a(b). By and large, however, the constitution leaves the specification of the Comptroller’s
authority to the legislature. See id. art. IV, § 23 (requiring the Comptroller to “perform such duties
as are or may be required by law”).


         ‘News Release, Statement from &role Keeton Strayhorn, Texas Comptroller of Public Accounts, Texas
Residential Construction Commission News Conference (Jan. 23,2006), available athttp://www.window.state.tx.us/
news/60123trccstatement.html  (last visited Mar. 17, 2006).
The Honorable David Swinford       - Page 3     (GA-0427)




         Chapter 403, subchapter B of the Government Code addresses the Comptroller’s general
powers and duties. See TEX. GOV’T CODE ANN. 5s 403.01 l-.335 (Vernon 2005 & Supp. 2005).
Section 403.011 prescribes many of the office’s specific duties concerning state government
accounts, claims, and revenue, including the duty to “supervise, as the sole accounting offker of the
state, the state’s fiscal concerns and manage those concerns as required by law” and the duty to
“suggest plans for the improvement and management of the general revenue.” Id. 5 403.0 11(3), (18)
(Vernon 2005). Section 411 ,013 requires the Comptroller to make certain reports to the Governor,
including an “audited comprehensive annual financial report that includes all state agencies
determined to be part of the statewide accounting entity.” Id. 3 403.013(c). The Comptroller is
required to report to the legislature and the Governor about how certain tax provisions affect state
revenue. Id. 5 403.014. Additionally, the Comptroller biennially must compile information and
issue a report concerning economic development in the state. Id. 5 403.030(a). For that report,
however, the Legislative Budget Board (the “LBB”) must provide the Comptroller with information
necessary to identify “strategies in the General Appropriations Act identified as meeting the
statewide prioritygoal or service category of economic development, if any, of each state agency.”
Id. 5 403.030(a)(l), (c).

         Prior to 2003, the Comptroller had express authority to initiate and conduct extensive reviews
of state agencies and report the resulting findings. As former section 403.022 of the Government
Code provided:

                         (a) The comptroller periodically may review and analyze the
                effectiveness and efficiency of the policies, management, fiscal
                affairs, and operations of state agencies.

                        (b) The comptroller shall report the findings of the review
                and analysis to the governor, lieutenant governor, and speaker of the
                house of representatives.

Act of May 4,1993,73d Leg., R.S., ch. 268,s 17, 1993 Tex. Gen. Laws 583,968, amended by Act
of Apr. 25, 1995, 74th Leg., R.S., ch. 76, 5 5.90, 1995 Tex. Gen. Laws 458, 542. In 2003 the
legislature enacted House Bill 7, repealing section 403.022. See Act of Oct. 13,2003,7&h Leg., 3d
C.S., ch. 3, $j6.18,2003 Tex. Gen. Laws 78,86. House Bill 7 gave to the LBB authority identical
to that previously held by the Comptroller-to    “review and analyze the effectiveness and efficiency
of the policies, management, fiscal affairs, and operations” of state agencies. Id. 5 6.09 (now
codified at TEX. GOV’T CODE ANN. 3 322.017 (Vernon Supp. 2005)).

          Section 6.21 of House Bill 7 confirms that the legislature intended a complete transfer from
the Comptroller to the LBB of authority to conduct an efficiency review of a state agency. -The
section transfers from the Comptroller to the LBB: “all employees                whose primary functions
relate to the      . efficiency review of state agencies, ” “all records and other property . that relate
to      an efficiency review of a state agency,” and “all unexpended and unobligated appropriations
     relating to the         efficiency review of a state agency.” Id. § 6.21. Section 6.21 also provides
that “any reference in law to the [Comptroller] that relates to the             efficiency review of state
The Honorable David Swinford         - Page 4      (GA-0427)




agencies,      means the Legislative Budget Board.” Id. These provisions manifest a clear legislative
intent to relieve the Comptroller of the authority and responsibility to initiate and conduct the agency
effectiveness and efficiency reviews. Consequently, the Comptroller does not have the authority to
initiate and conduct an investigation of an agency and issue a report to the extent the purpose is to
“review and analyze the effectiveness and efficiency of the policies, management, fiscal affairs, and
operations of state agencies.” See TEx. GOV’T CODE ANN. ?j 322.017 (Vernon Supp. 2005).

         A brief submitted by the Comptroller suggests that the office has statutory authority to
investigate a state agency independent of the authority eliminated by House Bill 7.4 The brief
proposes that Representative Smith’s request authorized the Comptroller to conduct an assessment
pursuant to section 301.028 of the Government Code. See Comptroller Brief, supra note 4. Under
that section, “[elach standing committee, including a general investigating committee, may request
necessaty assistance tiom all state agencies, departments, and offices,” and “[elach state agency,
department, and office shall assist any legislative committee that requests assistance.” TEX. GOV’T
CODE ANN. 5 301.028(a)-(b) (Vernon 2005). That section is part of the subchapter governing the
organization of the legislature into committees.       See id. §§ 301.011-.034 (subchapter B, the
“Legislative Reorganization Act of 1961”). The plain language of section 301.028 concerns
committee requests, not requests from an individual legislator. The Smith Letter to the Comptroller
does not purport to be on behalf of any committee. See Smith Letter, supra note 2. That section
does not apply when, as here, there has not been a request from or on behalf of a committee.

         Of course, a legislator may ask any executive agency for information and assistance, and the
agency may provide it out of comity between the executive and legislative branches of government.
See State Bd. ofIns. Y. Betts, 308 S.W.2d 846,852 (Tex. 1958) (observing that “co-operation oftwo
or more branches or departments of government in the solution of certain problems is both the usual
and expected thing”). But the agency may do so only within the bounds of its constitutional and
statutory authority. See Crosthwait v. State, 138 S.W.2d 1060, 1061 (Tex. 1940) (noting that an
“offtcer must look to the Act by which his office is created, and its duties are defined, to ascertain
the extent of his powers, and the line of,his duties; and he is not permitted to transcend the former,
nor to vary the prescribed mode of performance of the latter”) (quoting Bryan v. Sundberg, 5 Tex.
418 (1849)). Indeed, the Smith Letter asked for assistance “[plursuant to [the Comptroller’s]
constitutional and statutory authority.” Smith Letter, supva note 2, at 1. As a practical matter, an
agency receiving a request for assistance must determine the extent of its authority to comply with
the request,

        The brief also suggests that the Comptroller’s authority       to initiate and conduct investigations
concerning an agency may be found in section 111.003 of the            Tax Code. Comptroller Brief, supra
note 4, at 4. Section 111.003(a)-(d) relates to an investigation        of an agency that has been requested
by the Governor. See TEX. TAX CODE ANN. § 111.003(a)-(d)                (Vernon 2001). Section 111.003(a)
provides that at the Governor’s request the Comptroller shall          “investigate any state institution and


         ‘Brief from Timothy Mashbum, General Counsel, Comptroller of Public Accounts, to Nancy S. Fuller, Chair,
Opinion Committee, Office ofthe Attorney General (Jan. 23,2006) (on tile with the Opinion Committee) [hereinat&
Comptroller Brief].
The Honorable David Swinford       - Page 5     (GA-0427)




its policies, management, and operation, including the fiscal affairs and the conduct and efficiency
of any state employee of the institution.” Id. 5 111.003(a)(3). By.its terms, section 111.003(a)
makes the Comptroller’s authority to investigate a state institution’s “policies, management, and
operation” contingent on a request from the Governor. Id.; see also Tex. Att’y Gen. Op. Nos. MW-
192 (1980) at 11, H-1063 (1977) at 3-4 (determining that the Comptroller’s authority under the
predecessor to section 111.003 to audit an agency was contingent on a gubernatorial request).

       The final subsection of section 111.003, subsection (e), provides:

                The comptroller may at any time examine and investigate the
                expenditure of appropriated money for a state institution or for any
                other purpose or for improvements made by the state on state property
                or money received and disbursed by any board authorized to receive
                and disburse state money. The comptroller shall investigate any state
                institution when required by information coming to his own
                knowledge.

TEX. TAX CODE ANN. 3 111.003(e) (Vernon 2001). A statutory provision may not be construed in
isolation, but instead must be read in context of the statutory scheme. See Tex. Workers ’Camp. Ins.
Fund v. Del Indus., Inc., 35 S.W.3d 591,593 (Tex. 2000). Section 111.003(e) as a whole concerns
a state institution’s expenditures of appropriated money or money received and disbursed by certain
authorized boards. In context, section lll.O03(e)‘s grant of authority to the Comptroller to initiate
an investigation is limited to the authority to investigate agency fiscal matters. TEX. TAX CODEANN.
 5 111.003(e) (Vemon2001). Moreover, theComptroller’s authorityinsection           111.003(e) oftheTax
Code must be construed in harmony with House Bill 7, which transferred to the LBB the authority
to initiate and conduct an investigation into “the effectiveness and efficiency of the policies,
management, fiscal affairs, and operations of state agencies.” See TEX. GOV’TCODEANN. § 322.017
(Vernon Supp. 2005).

          Finally, the Comptroller’s brief suggests that the authority to initiate and conduct an
investigation of an agency such as the TRCC derives more broadly from the office’s constitutional
duty to estimate expected revenues and expenditures before each regular session of the legislature
and the office’s statutory duties to supervise and manage the state’s fiscal affairs and to suggest plans
for the improvement of the general revenue. See Comptroller Brief, supra note 4, at 4-6; ‘Ex.
CONST. art. III, § 49a(a); TEX. GOV’T CODE ANN. 5 403.01 l(3), (18) (Vernon 2005). To be able to
estimate state government revenue, the brief reasons, the Comptroller must understand trends in the
state economy and the effect that state agency action has on the economy. Comptroller Brief, supra
note 4, at 34. The use of general fiscal authority to initiate and conduct what is in essence an
investigation formerly authorized by Government Code section 403.,022-the authority to “review
and analyze the effectiveness and efficiency of the policies, management, fiscal affairs, and
operations of state agencies”-is     clearly contrary to the intent of the legislature in House Bill 7. See
Act of Oct. 13, 2003, 7’8th Leg., 3d C.S., ch. 3, $5 6.09,6.18, 6.21,2003 Tex. Gen. Laws 78, 86.
 Cf: Tex. Att’y Gen. Op. No. JM-872 (1988) (questioning whether the State Auditor may use the
 office’s authority to conduct an effectiveness audit or an economy and efficiency audit as a pretext
 for inquiring into the Comptroller’s methods and means of deriving the information in a budget
 certification and revenue estimate).
The Honorable David Swinford       - Page 6   (GA-0427)




                                       SUMMARY

                       The Comptroller of Public Accounts does not have the
              authority to initiate and conduct an investigation              into the
              effectiveness and efficiency of a state agency’s policies, management,
              fiscal affairs, or operations as formerly authorized by the Government
              Code.      State agencies, departments, and offices are statutorily
              required to provide assistance to a legislative committee upon the
              committee’s request. A state agency, department or office may
              respond to a single legislator’s request for assistance and information
              only within constitutional and statutory limits of authority. The Tax
              Code does not authorize the Comptrollerto investigate state agencies
              and their policies, management, and operations and issue a report
              thereon, except in response to a request from the Governor. Also,
              the Tax Code authorizes the Comptroller to initiate and conduct
              an investigation      of certain agency expenditures,      receipts, and
              disbursements, but this cannot be construed as authorizing a more
              broad based investigation into the effectiveness and efficiency of a
              state agency’s policies, management, fiscal affairs, and operations.




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
