                                ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                               December 11, 2008



The Honorable Susan Combs                            Opinion No. GA-0686
Texas Comptroller of Public Accounts
Post Office Box 13528                                Re: Whether the Comptroller's report required by Tax
Austin, Texas 78711-3528                             Code sections 313.008 and 313.032 must be limited to
                                                     the items listed therein and exclude information that is
                                                     marked as "confidential" (RQ-0727-GA)

Dear Comptroller Combs:

       In 2001, the Legislature adopted the Texas Economic Development Act (the "Act"). See Act
of May 24, 2001, 77th Leg., R.S., ch. 1505, § 1, 2001 Tex. Gen. Laws 5362, 5362-72 (codified as
Tax Code chapter 313). The Act authorizes a school district to limit the appraised value of a
property for the maintenance and operations portion ofthe school district property tax. See generally
TEX. TAX CODE ANN. ch. 313 (Vernon 2008). The limitation is set out in an agreement between the
school district and the person receiving the appraised value limitation. See ide § 313.027.

        In 2007, the Legislature enacted legislation that, in relevant part, requires the Office of the
Comptroller ofPublic Accounts (the "Comptroller") to prepare a biennial report! for the Legislature
regarding the progress of value limitation agreements entered into pursuant to the Act. See Act of
May 25,2007, 80th Leg., R.S., ch. 1270, § 6, 2007 Tex. Gen. Laws 4249, 4252 (codified as Tax
Code section 313.008); Act of May 28, 2007, 80th Leg., R.S., ch. 939, § 17, 2007 Tex. Gen. Laws
3241,3246 (codified as Tax Code section 313.008); Act ofMay 25,2007, 80th Leg., R.S., ch. 1262,
§ 6, 2007 Tex. Gen. Laws 4225, 4227 (codified as Tax Code section 313.032). The reporting
requirements are contained in sections 313.008 and 313.032 ofthe Tax Code. TEX. TAX CODE ANN.
§§ 313.008(a), .032(a) (Vernon 2008). Both sections provide that "[t]he report must be based on
data certified to the comptroller by each recipient of a limitation on appraised value ... and state for




          lIt appears from your request, which consistently refers to the reports required under sections 313.008 and
313.032 ofthe Tax Code in the singular, that the Comptroller produces one report in response to the requirements under
these two statutes. See Request Letter at 1-3 (available at http://www.texasattomeygeneral.gov). We similarly refer
to a single report in our discussion.
The Honorable Susan Combs - Page 2                     (GA-0686)



each [limitation] agreement" eleven specified items of information. 2 Id. The eleven items of
information set out in sections 313.008 and 313.032 are almost identical. Id.

         You ask the following questions about this report:

                  1)     Whether the Comptroller's report is limited to the 11 items
                         listed in Sections 313.008(a) and 313.032(a)?

                  2)     Whether the Comptroller may use in the report information
                         provided by· recipients of limitation on appraised value
                         agreements, regardless ofwhether the information was marked
                         as confidential by the recipients?

Request Letter at 1.

I.       Applicable Law

        Your questions raise issues of statutory construction. In construing a statute, we must
ascertain the Legislature's intent in enacting the statute. State v. Shumake, 199 S.W.3d 279, 284
(Tex. 2006). We look "first and foremost" to the statutory language in understanding that intent.
Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We may also consider legislative
history in construing a statute. TEX. GOV'T CODE ANN. § 311.023(3) (Vernon 2005).

        Your questions also involve determinations regarding the Comptroller's powers. While the
Texas Constitution defines some of the Comptroller's functions and duties, much of the
Comptroller's authority is specified by the Legislature. See TEX. CONST. art. IV, § 23 (requiring the
Comptroller to "perform such duties as are or may be required by law"). The Comptroller's express
statutory authority carries with it implied authority reasonably necessary to carry out the statute's
purpose. See Bullockv. Calvert, 480 S.W.2d 367,372 (Tex. 1972) ("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"); Tex. Att'y Gen. Ope No. GA-0427
(2006) at 2; see also Tex. Mun. Power Agency v. Pub. Utile Comm 'n, 253 S.W.3d 184, 193 (Tex.
2007) ("when the Legislature expressly confers a power on an agency, it also impliedly intends that
the agency have whatever powers are reasonably necessary to fulfill its express functions or duties").




           2S ection 313.031 requires the Comptroller to "adopt rules and forms necessary" to implement and administer
chapter 313. TEX. TAX CODE ANN. § 313.031(a) (Vernon 2008). The only rule we find relevant to the questions
presented provides that "[r]ecipients ofproperty value limitations shall promptly submit to the comptroller information
that is required to complete the comptroller's biennial report assessing the progress of each agreement. The comptroller
will promulgate a form on which the required information shall be submitted." 34 TEX. ADMIN. CODE § 9.1 057(a) (2008)
(Tex. Comptroller of Pub. Accounts, Recommendation, Evaluation, and Reports by Comptroller).
The Honorable Susan Combs - Page 3              (GA-0686)



II.     Analysis

         Neither section 313.008 nor 313.032, which contain the required content of the report,
expressly indicate that the list of eleven items is intended to be exclusive in nature. And we find
nothing in the legislative history suggesting that the list is intended to be exclusive. Insofar as the
list of items in sections 313.008 and 313.032 does not provide the information necessary for the
Comptroller to prepare "a report assessing the progress of each agreement," we conclude the
Comptroller may include in the report additional information that is reasonably necessary to fulfill
the Comptroller's statutory obligation of preparing such a report. See Bullock, 480 S.W.2d at 372.

       In sum, because ofthe lack ofany limiting language in sections 313.008 and 313.032 and the
Comptroller's implied authority, we conclude that the Comptroller is not precluded from including
more information in the report than is required by sections 313.008 and 313.032. This additional
information must, however, be reasonably necessary to fulfill the Comptroller's statutory obligation
ofproviding a report that assesses the progress of limitation agreements under the Act. See ide And
in no instance may the report include "information that is confidential by law" as expressly
prohibited by sections 313.008 and 313.032. See TEX. TAX CODE ANN. §§ 313.008(b), .032(b)
(Vemon 2008).

        The statutory prohibition against the inclusion ofconfidential information in the report brings
us to your second question-"[w]hether the Comptroller may use in the report information provided
by recipients oflimitation on appraised value agreements" ifthose recipients markedthe information
as confidential. Request Letter at 1. Sections 313 .008(b) and 313 .032(b) prohibit the Comptroller
from including in the report information that is confidential by law, not information that is marked
as confidential by a recipient of a limitation. TEX. TAX CODE ANN. §§ 313 .008(b), .032(b) (Vernon
2008). We conclude, therefore, that the express terms of the statutory provisions prohibit only the
inclusion of information which is confidential by law, a determination that the statutes implicitly
leave to the Comptroller in the first instance.
The Honorable Susan Combs - Page 4           (GA-0686)



                                      SUMMARY

                      In preparing the report on limitation agreements under the
               Texas Economic Development Act, the Comptroller of Public
               Accounts may include more information than is required by sections
               313.008 and 313.032 ofthe Tax Code ifthe information is reasonably
               necessary to assess the progress of such agreements.

                       The Comptroller may use in the report information provided
               by recipients of limitations, regardless of whether the information is
               marked as confidential by the recipients, so long as the information
              ,is not confidential by law. The Comptroller must, in the first
               instance, determine whether information is confidential by law.




ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee
