                               ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                                 May 7,2008



The Honorable Jana Duty                                   Opinion No. GA-0624
Williamson County Attorney
Williamson County Justice Center,                         Re: County payment to vendors under the Low-
   Second Floor                                           Income Vehicle Repair Assistance, Retrofit, and
405 Martin Luther King Box 7                              Accelerated Vehicle Retirement Program, and
Georgetown, Texas 78626                                   reimbursement to a county from the Texas
                                                          Commission on Environmental Quality
                                                          (RQ-0646-GA)

Dear Ms. Duty:

        On behalf of the Williamson County Auditor, you ask about county payment and
reimbursement of such payment under the Low-Income Vehicle Repair Assistance, Retrofit, and
Accelerated Vehicle Retirement Program (LIRAP) established under chapter 382 ofthe Health and
Safety Code.! You inform us that the LIRAP provides a method to assist low-income persons whose
vehicles cannot meet emission standards. Request Letter, supra note 1, at 1. Under this program,
you inform us, an eligible person takes such a vehicle to a participating dealer that repairs or replaces
the vehicle. See id The dealer is entitled to receive certain payments for the repair or replacement
from a county participating in the program, and the county is subsequently, as you describe it,
"reimbursed" for that payment by the Texas Commission on Environmental Quality (the "TCEQ").
See id. In 2007, the Legislature adopted Senate Bill 12, which among other changes to the LIRAP,
reduced the time period within which a county must make the dealer payment from thirty days to five
days. See id at 1-2. You believe that "the five-day payment provision is in conflict with long-
standing Texas law that make[s] it a core duty of the county commissioners court, treasurer, and
auditor to review and approve all county expenditures." Id. at 2. Thus, you ask:

                 (1) Can a county make disbursements to vendors under the state
                 [LIRAP] before such expenditures have been approved by the
                 county's commissioners court, treasurer, and auditor?

                 (2) If the answer to #1 is "No," is the [TCEQ] prohibited from
                 reimbursing a county for expenditures under LIRAP when the


         lSee Letter from Honorable Jana Duty, Williamson County Attorney, to Honorable Greg Abbott, Attorney
General of Texas (Nov. 8, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Jana Duty - Page 2                     (GA-0624)




                 required review makes a payment within five business days
                 impossible?

Id. at 1.

I.          Legal Background

        Section 382.209 of the Health and Safety Code directs the TCEQ and the Public Safety
Commission "by joint rule" to "establish and authorize the commissioners court of a participating
county2 to implement a low-income vehicle repair assistance, retrofit, and accelerated vehicle
retirement program." TEX. HEALTH & SAFETY CODE ANN. § 382.209(a) (Vernon Supp. 2007)
(footnote added); see also id § 382.202(a) (authorizing the TCEQ to request the Public Safety
Commission to establish a vehicle emissions inspection and maintenance program under
Transportation Code chapter 548). The statute also directs the TCEQ to provide funding for such
a program from available funds. Id. § 382.209(b); see also ide §§ 382.202(g), .302(c) (authorizing
assessment and collection ofvehicle emissions-inspection fees that may be used for the LIRAP and
other programs). An affected count)? is not required to participate in the LIRAP. Id. § 382.209(h).
Butsee ide § 382.218 (providing for required participation by "a county with a population of650,000
or more that borders the United Mexican States"). Participation, however, is encouraged. See ide
§ 382.216 (authorizing the TCEQ and other named state agencies to encourage counties to
implement the voluntary LIRAP, to establish incentives for counties to implement the LIRAP, and
to designate a county that implements the program as a "Clean Air County" and give it preference
in any federal or state clean air grant program).

        Section 382.210, at issue here, provides for "Implementation Guidelines and Requirements"
for the LIRAP. See ide § 382.210 (caption). In relevant part, Senate Bill 12 added subsection (d),
which provides as follows:

                           A participating county shall provide an electronic means for
                  distributing vehicle repair or replacement funds once all program
                  criteria have been met with regard to the repair or replacement. The
                  county shall ensure that funds are transferred to a participating
                  dealer under this section not later than five business days after the
                  date the county receives proof of the sale and any required
                  administrative documents from the participating dealer.

Id. § 382.210(d) (Vernon Supp. 2007} (emphasis added); Act of May 28, 2007, 80th Leg., R.S., ch.
262, § 1.04,2007 Tex. Gen. Laws 407,408-09 (amending section 382.210).


         2A "participating county" is "an affected county in which the commissioners court by resolution has chosen to

implement a low-income vehicle repair assistance, retrofit, and accelerated vehicle retirement program authorized by
Section 382.209." TEX. HEALTH & SAFETY CODE ANN. § 382.201(4) (Vernon Supp. 2007).

         3 An "affected county" is "a county with a motor vehicle emissions inspection and maintenance program

established under Section 548.301, Transportation Code." Id. § 382.201(1).
The Honorable lana Duty - Page 3                       (GA-0624)



        You generally contend that it is impossible, 4 as a practical matter, for a county to comply with
the section 382.210(d) five-day time constraint for transfer of funds. Request Letter, supra note 1,
at 2-3. You explain that a commissioners court in Texas does not meet every business day; it
generally meets in a regular session only monthly and in special sessions only weekly. Id. at 3. You
also note that a commissioners court may act on a matter only in an open session after giving
seventy-two hours prior notice of the matter under the Open Meetings Act. Id. 5 Finally, you assert,
the county's commissioners court, treasurer, and auditor each have a nondelegable duty to review
and approve such an expenditure before it may be paid, and the section 382.21 O(d) five-day payment
requirement, as a practical matter, conflicts with these established duties. See ide at 2-3. Your
questions specifically relate to this last contention. See ide at 1.

II.      Analysis

         A.     Disbursement Approvals

        You first ask whether a county is authorized to disburse funds to participating dealers 6 under
LIRAP before such expenditures have been approved by the county's auditor, commissioners court,
and treasurer. See ide at 1.




          4We do not determine whether county compliance with the legally required reviews and approvals makes
payment within the five-day period impossible as a practical matter. We note that the TCEQ "believes there are
reasonable alternatives" .for complying with the five-day requirement. Letter Brief from Robert Martinez, Director,
Environmental Law Division, Texas Commission on Environmental Quality, to Honorable Greg Abbott, Attorney
General of Texas, at 2 (Dec. 20, 2007) (on file with the Opinion Committee) [hereinafter TCEQ's Brief]. The TCEQ
points out that pursuant to section 382.209(g), Williamson County like some other counties could contract with a private
entity or another county to administer the LIRAP to avoid the practical problems that the request letter identifies. Id.
at 3. Additionally, the TCEQ notes, the county could "create a pre-approval process containing the necessary criteria
to ensure payments to participating dealers" within the required time period or "consider adopting a resolution approving
the payments provided the criteria are met." Id Alternatively, the TCEQ suggests it has the discretion to interpret the
section 382.210(d) language-"no later than five business days after the county receives proof of the sale and any
required administrative documents from the participating dealer"-broadly:

                  The [TCEQ] could interpret "receives" to mean when the county is in a position to
                  take action on the transaction. Therefore, the county receives proofof sale and any
                  required administrative documents on the day the Commissioners Court convenes
                  to take action on the transaction. Under this interpretation, Williamson County
                  should be able to comply with the five day provision in the statute.

Id.

          5See Tex. Att'y Gen. Ope No. JC-0307 (2000) at 8 ("Approval of a claim, invoice, or bill by the commissioners
court for payment is an official act ofthe court that must take place at a meeting held under the [Open Meetings] Act.").

          6you ask about "disbursements to vendors under the [LIRAP]." Request Letter, supra note 1, at 1. In the
context ofyour letter and Health and Safety Code section 382.21 0, we understand you to ask about dealers participating
in the program.
The Honorable Jana Duty - Page 4              (GA-0624)




        We look at the relevant statutes addressing the duties of the county auditor, the
commissioners court, and the county treasurer in disbursing county funds and approving
expenditures. Local Government Code section 113.064 provides that in a county with an auditor,
"[a] claim, bill, or account may not be allowed or paid until it has been examined and approved by
the auditor." TEX. Loc. GOV'T CODE ANN. § 113.064(a) (Vernon 2008). And "[e]ach claim, bill,
and account against the county must be filed in sufficient time for the auditor to examine and
approve it before the meeting ofthe commissioners court." Id. (emphasis added). A county auditor
may not "delegate to another legal entity or office [the auditor's] responsibility to examine and
approve, ifappropriate, a claim." Criderv. Cox, 960 S.W.2d 703,706 (Tex. App.-Tyler 1997, writ
denied).

        Additionally, section 115.021 of the Local Government Code specifically requires a
commissioners court to "audit and settle all accounts against the county and [to] direct the payment
of those accounts." TEX. Loc. GOV'T CODE ANN. § 115.021(a) (Vernon 2008). Under this
provision, a commissioners court has a nondelegable duty to "audit all claims against the county and
to order paid those only which are found to be just and legal demands." Padgett v. Young County,
204 S.W. 1046,1052 (Tex. Civ. App.-Fort Worth 1918, writ dism'd); accord Navarro County v.
Tullos, 237 S.W. 982, 987 (Tex. Civ. App.-Dallas 1922, writ refd); see also Tex. Att'y Gen. Ope
Nos. JC-0370 (2001) at 3 (concluding that "[a] commissioners court has a nondelegable duty to
review county payrolls and to issue warrants"); GA-0383 (2005) at 5-6 (discussing the nature of a
commissioners court's duties under section 115.021).

        Finally, section 113.041 of the Local Government Code requires a county treasurer to
disburse "money belonging to the county" and "pay and apply the money as required by law and as
the commissioners court may require or direct, not inconsistent with law." TEX. Loc. GOV'T CODE
ANN. § 113 .041 (a) (Vernon 2008) (emphasis added). The treasurer has a ministerial duty to endorse
a warrant presented for payment unless the treasurer has doubts about the "legality or propriety of
an [instrument] presented ... for payment." Id § 113.041(d); see ide § 113.041(c) (providing that
the county treasurer "may not pay money out of the county treasury without a certificate or warrant
from an officer who is authorized by law to issue the certificate or warrant"); Tex. Att'y Gen. Ope
No. JC-0490 (2002) at 3 (discussing the treasurer's duties). Under section 113.041, a county
treasurer may not disburse county funds without approval from the commissioners court. TEx. Loc.
GOV'T CODE ANN. § 113.041 (Vernon 2008); Tex. Att'y Gen. Ope No. JC-0370 (2001) at 3.

        Texas courts have held that the statutory provisions regarding the commissioners court and
the county auditor require them to separately examine and determine whether to approve each claim
against county funds. See Crider, 960 S.W.2d at 706; Smith v. McCoy, 533 S.W.2d 457,459 (Tex.
Civ. App.-Dallas 1976, writ dism'd). "The legislative scheme ofcontrol of county funds requires
specific approval of the claim by the Auditor before consideration by the Commissioners Court.
Likewise, the Auditor may not direct the expenditure of county funds without the County
Commissioner's order." Crider, 960 S.W.2d at 706 (citing Smith, 533 S.W.2d at 459). And the
county treasurer may not pay a claim that has not been approved by both the auditor and the
commissioners court.
The Honorable Jana Duty - Page 5               (GA-0624)



        Chapters 113 and 1150fthe Local Government Code do not except county payments to the
LIRAP participating dealers from the established procedures requiring the county auditor and the
commissioners court to separately examine and approve each claim against the county before county
funds are disbursed to pay the claim, and requiring the county treasurer to disburse county funds only
for payments approved by the commissioners court and the auditor. See TEX. Lac. GOV'T CODE
ANN. §§ 113.001-.903, 115.001-.901 (Vernon 2008).

        Nor does any provision in Health and Safety Code chapter 382 addressing the LIRAP except
the participant dealer payments from the established review and approval procedures. We note
that section 382.211 (a) authorizes a participating county to appoint one or more local advisory panels
to advise the county about the LIRAP, "including the identification of a vehicle make or model
with intrinsic value as an existing or future collectible." TEX. HEALTH & SAFETY CODE
ANN.§ 382.211(a) (Vernon Supp. 2007). Additionally, section 382.211(b) provides that the
"commissioners court may delegate all or part of the administrative and financial matters to one or
more local advisory panels established under Subsection (a)." Id. § 382.211(b). It is unclear what
the Legislature contemplated a commissioners court would "delegate" under this section to an
"advisory committee" established under section 382.211. Compare id, with id § 382.209(g)
(expressly authorizing a participating county to contract with an appropriate entity for services
necessary to implement the county's LIRAP). But, whatever section 382.211(b) may contemplate,
it does not expressly except payments to participating dealers from a commissioner court's well-
established and express duty to review and approve all claims against the county before county funds
are disbursed for their payment. And in the absence of clear legislative intent to do so, we do not
believe that such an exception may be implied by this office. Moreover, section 382.211(b) does not
alter the county auditor's and treasurer's duties with respect to the dealer payments.

       Accordingly, in response to your first question, we conclude that a county is not authorized
to disburse funds to participating dealers under the LIRAP before such expenditures have been
reviewed and approved by the county's auditor, commissioners court, and treasurer as required by
Texas law.

        B.    Commission Reimbursement

         You next ask whether the TCEQ is prohibited from "reimbursing" a county for its payments
to participating dealers under the LIRAP when the required reviews and approvals of county
expenditures makes it impossible7 to make the dealer payment within five business days. See
Request Letter, supra note 1, at 1. You suggest that "[i]n order to reconcile the amended act with
existing law . . . the five-day payment requirement . . . must be construed not as a mandatory
requirement but as an aspirational goal. The regulations are expressly supposed to be 'guidelines. ,,,
Id. at 4. You do not explain the particular legal basis for the view that the TCEQ may be prohibited
from reimbursing a county or for the suggested construction of section 382.210 supporting the
contrary view.



        7See supra note 4.
The Honorable Jana Duty - Page 6                        (GA-0624)




        Before addressing your principal question and argument as we understand them, it is
necessary to address two of their premises. First, your question and other statements suggest that
the statutory timing requirement is a problem because the TCEQ "reimburses" a county for
expenditures the county makes with county funds. See id at 1, 4.

        The express statutory scheme requires the TCEQ to distribute available funds to participating
counties. See TEX. HEALTH & SAFETY CODE ANN. § 382.209(b) (Vernon Supp. 2007). Health and
Safety Code section 382.209(b) directs the TCEQ to provide funding for the LlRAP "with available
funds collected under Section 382.202, 382.302, or other designated and available funds." Id And
section 382.202(g) directs the TCEQ (1) to use part of the fees assessed and collected for vehicle
emissions-related inspections to fund the LlRAP, and (2) "to the extent practicable, distribute
available funding . . . to participating counties in reasonable proportion to the amount of
fees collected ... in those counties or in the regions in which those counties are located." Id.
§ 382.202(g); see also id. §§ 382.202(e), .302(c) (authorizing the TCEQ to assess vehicle emissions-
related inspection fees).

        The TCEQ informs us that pursuant to the LlRAP, it distributes the available funds to
administer the LIRAP to participating counties in proportion to the number of vehicle inspection
stickers issued in the prior year. TCEQ's Brief, supra note 4, at 4. The TCEQ explains: "[T]hese
funds are distributed up-front to the counties, who in turn administer the LIRAP. In that respect
 Williamson County is not reimbursed for expenditures under LIRAP, but rather receives [its]
proportional share ofLIRAP funds in advance to administer the program." Id (emphasis added).

        Second, you suggest that the five-day payment requirement is a "guideline" under section
382.210(a). See Request Letter, supra note 1, at 4. This requirement is not a guideline as we
understand you to use the term. See TEX. HEALTH & SAFETY CODE ANN. § 382.210(a), (d) (Vernon
Supp.2007). Subsection (a) directs the TCEQ to "adopt guidelines to assist a participating county
in implementing a low-income vehicle repair assistance, retrofit, and accelerated vehicle retirement
program" and lists certain minimum topics that such guidelines must address. Id. § 382.210(a). In
contrast, the five-day payment requirement is imposed directly on participating counties by section
382.210(d). See id. § 382.210(d). It is subsection (d) that provides: "The county shall ensure that
funds are transferred to a participating dealer under this section not later thanfive business days after
the date the county receives proof of the sale and any required administrative documents from the
participating'dealer." Id. (emphasis added).8

        We now turn to your question and argument. As we understand it, the legal argument
here-for the view that section 382.21 O(d) does not prohibit TCEQ from reimbursing a county for
payments made by the county to participating dealers later than five business days when it is
impossible to make the payment within five days-would be that the statute's timing requirement
is directory rather than mandatory.



         8TCEQ has adopted a rule that parallels the statutory requirement to transfer funds not laterthan five days after
receipt of the required dealer documentation. See 30 TEX. ADMIN. CODE § 114.64(t) (2008).
The Honorable lana Duty - Page 7                       (GA-0624)




        When a statutory provision requires an act be performed within a certain time without any
words restraining the act's performance after that time or stating the consequences of failure to act
within the time specified, the timing provision is generally directory. Helena Chern. Co. v. Wilkins,
47 S.W.3d 486,495 (Tex. 2001); Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307,310
(Tex. 1976); Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956); Plano Parkway Office
Condos. v. Bever Props., LLC, 246 S.W.3d 188,193 (Tex. App.-Dallas 2007, no pet.). Underthis
analysis, courts generally consider the language ofthe statute first, and second, the consequences that
result from construing the timing provision as directory or mandatory. See Helena Chern. Co., 47
S.W.3d at 494; Plano Parkway Office Condos., 246 S.W.3d at 193-95; Tex. Dep't o/Pub. Safety v.
Dear, 999 S.W.2d 148, 152 (Tex. App.-Austin 1999, no pet.).

        We consider the language of section 382.210(d). This subsection provides that a "county
shall ensure that funds are transferred ... not later than five business days after the date the county
receives" the dealer documentation. TEX. HEALTH & SAFETY CODE ANN. § 382.210(d) (Vernon
Supp. 2007); see also Helena Chern. Co., 47 S.W.3d at 493 (stating that the term "shall," which is
generally recognized as mandatory, creates a duty unless the context in which it is used necessarily
requires a different construction). The issue here is the consequences of making the transfer funds
beyond the five-day period. Section 382.21 O(d) does not state any consequences for transferring the
funds later than five days after the receipt of the required dealer documentation. See TEX. HEALTH
& SAFETY CODE ANN. § 382.21 O(d) (Vernon Supp. 2007). In particular, section 382.21 O(d) does not
expressly prohibit the TCEQ from distributing available funds to a county when the county has
transferred the funds after the five-day period. See ide Nor do we find another provision in chapter
382 addressing the LIRAP that expressly prohibits the TCEQ from distributing funds in these
circumstances. See ide §§ 382.202, .210; cf State V. $435,000,842 S.W.2d 642,644 (Tex. 1992)
(indicating that if the Legislature intends a certain consequence for failure to comply with a
prescribed time period, it should provide it expressly). The absence ofstatutory language prohibiting
the distribution offunds upon failure to comply with the five-day payment requirement suggests that
the "not later than five-days" language is directory. Cf Wyeth V. Hall, 118 S.W.3d 487, 489-90
(Tex. App.-Beaumont 2003, no pet.) (concluding that statutory provision requiring the court of
appeals to "render its decision not later than the 120th day" after the appeal's perfection date is
directory and not jurisdictional in the absence of a noncompliance penalty or language prohibiting
the rendering of a decision after the 120 days). 9 However, this determination suggesting a directory
construction does not end our inquiry.

       When, as here, a statute is silent about the consequences of noncompliance, we must also
consider the consequences, in light ofthe statutory purpose, that result from opposing constructions.
See Helena Chern. Co., 47 S.W.3d at 494; Plano Parkway Office Condos., 246 S.W.3d at 193-95;
Dear, 999 S.W.2d at 152. But see Wyeth, 118 S.W.3d at 489-90 (concluding that timing



          9We note that section 382.002(b) of the Health and Safety Code supports a directory construction of the "not
later than five-days" language. Section 382.002(b) provides: "It is intended that this chapter be vigorously enforced and
that violations of this chapter ... result in expeditious initiation of enforcement actions as provided by this chapter."
TEX. HEALTH & SAFETY CODE ANN. § 382.002(b) (Vernon 2001) (emphasis added).
The Honorable lana Duty - Page 8               (GA-0624)



requirement was directory based only on the absence of additional restricting language and
noncompliance penalty).

        Construing the section 382.210(d) language as mandatorily prohibiting the TCEQ from
distributing available funds to a participating county-when a county may be unable, consistent with
Texas law, to make the dealer payment within the five-day period-would appear to unreasonably
punish a county for acts not within its control. Cf TEX. GOV'T CODE ANN. § 311.021(2)-(3)
(Vernon 2005) (stating that when construing a statute, it is presumed that the Legislature intends an
entire statute to be effective and that ajust and reasonable result is intended). Additionally, such a
construction would discourage county participation and conflict with the stated overall purpose of
chapter 382 to control and abate air pollution and emissions of air contaminants. See TEX. HEALTH
& SAFETY CODE ANN. § 382.002(a) (Vernon 2001) (statutory policy and purpose); ide § 382.216
(Vernon Supp. 2007) (encouraging county participation in the LIRAP and other chapter 382
programs). Conversely, construing the section 382.210(d) language as directory would appear to
permit a county to participate in the LIRAP and make dealer payments consistent with Texas law
governing the review and approval of county disbursements. Construing the statute as directory
raises only the possibility that a county might not make the dealer payments as expeditiously as
anticipated by the statute, and consequently discourage dealer participation in the LIRAP. However,
in the absence of any statutory indication that the Legislature intended to prohibit the TCEQ from
distributing available funds to a participating county making dealer payments later than five days,
we decline to imply it based solely on the possibility of a county's bad faith or lack ofdiligence. Cf
Tex. Dep't of Pub. Safety v. Forsgard, 108 S.W.3d 344, 348 (Tex. App.-Tyler 2003, no pet.)
("[W]e will not invade the powers of the Legislature by divining new laws that were neither
expressed nor intended.").

        In sum, the statutory silence regarding county payments to participating dealers after five
days and the consequences of opposing constructions favor construing the section 382.2l0(d)
language, "not later than five business days" to be directory. Accordingly, we conclude that the
TCEQ is not prohibited from distributing available funds to a participating county when the legally
required reviews and approvals by the county auditor, county commissioners court, and county
treasurer make county payments to LIRAP dealers within five days impractical.
The Honorable lana Duty - Page 9              (GA-0624)



                                       SUMMARY

                      Chapter 382 of the Health and Safety Code authorizes
              establishment of a Low-Income Vehicle Repair Assistance, Retrofit,
              and Accelerated Vehicle Retirement Program ("LIRAP") and directs
              the Texas Commission on Environmental Quality (the "TCEQ") to
              distribute available funds to participating counties to administer the
              program. Section 382.210(d) provides that a participating county
              "shall ensure that funds are transferred to a participating dealer ...
              not later than five business days after the date the county receives" the
              required dealer documentation. TEX. HEALTH & SAFETY CODE ANN.
              § 382.210(d) (Vernon Supp. 2007). But a participating county is not
              authorized to disburse funds to participating dealers under the LIRAP
              before such expenditures have been reviewed and approved by the
              county's auditor, commissioners court, and treasurer as required
              by Texas law. And the TCEQ is not prohibited from distributing
              available funds to a participating county when the required reviews
              and approvals by the county commissioner, county auditor, and
              county treasurer make county payments to LIRAP dealers within five
              days impractical.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee
