                                               The Attorney            General of Texas
                                                                  November 30, 1981

MARK WHITE
Attorney General


Supreme      Court Building
                                             Honorable George N. Rodriguez, Jr.       Opinion No. MW-395
P. 0. Box 12548                              El Paso County Attorney
Austin.    TX. 78711                         Room 201, City-County Building           Re: Discretion of the Highway
5121475-2501                                 El Paso, Texas 79901                     and    Public   Transportation
Telex    9101874-1367
                                                                                      Commission to withhold funds
Telecopier     512/4750266
                                                                                      from   designated   recipients
                                                                                      under the formula program of
1607 Main St.. Suite            1400                                                  article 6663~
Dallas,   TX. 75201                          Dear Mr. Rodriguez:
214/742-8944

                                                  You ask whether the State Department of Highways and Publik
4824   Alberta      Ave.,   Suite      100   Transportation "can refuse to provide funds under the formula program
El Paso. TX.        79905                    pursuant to Art. 6663~ 63, Tex. Rev. Civ. Stat." The provision to
915/533-3484                                 which you refer was enacted in 1975 as part of a "mass transportation"
                                             legislative package consisting of companion bills in the Senate that
1220 Dallas Ave., Suite               202
                                             have been codified as articles 6663, 6663b and 6663~. V.T.C.S. They
Houston,     TX. 77002                       are in pari materia, and should be read together. -See 53 Tex. hr. 2d
7131650-0666                                 Statutes 9188, at 286.

                                                  Article 6663b. section 1, V.T.C.S., provides, among other things,
CC.6 Broadway,          Suite   312
Lubbock,     TX.      79401
                                             that the State Department of Highways and Public Transportation:
8061747-5238
                                                            (1) may purchase, construct, lease, and
                                                       contract for public transportation systems in the
4309 N. Tenth, Suite            B
McAllen,     TX. 78501
                                                       state;
5121682-4547
                                                            (2) shall encourage, foster, and assist in
                                                       the development of public and mass transportation,
200 Main Plaza, Suite 400                              both intracity and intercity, in this state;
San Antonio,  TX. 78205
512/225-4191
                                                            . . . .

An Equal         Opportunityl                               (4)   shall    develop    and   maintain a
Affirfnative       Action     Employer                 comprehensive master plan for public and mass
                                                       transportation development in this state;

                                                            (5) shall assist any political subdivision of
                                                       the state in procuring aid offered by the federal
                                                       government for the purpose of establishing or
                                                       maintaining   public   and   mass   transportation
                                                       systems;




                                                                          p. 1341
Honorable George N. Rodriguez, Jr. - Page 2 (MW-395)



               (6)   shall   conduct   hearings   and   make
          investigations it considers necessary to determine
          the location, type of construction, and cost to
          the state or its political subdivisions of public
          mass transportation systems owned, operated, or
          directly financed in whole or in part by the
          state;

                   . . . .

               (8)  may apply for and receive gifts and
          grants from governmental and private sources to be
          used in carrying out its function under this Act;
          [ andI

               (9) may represent the state in public and
          mass transportation matters before federal and
          state agencies;

                   . . . .

     A companion statute, article 6663~. V.T.C.S., deals with the
administration and funding of mass transportation projects. section
l(b) thereof states:

                   The purposes of this Act are to provide:

               (1) improved public transportation for the
          state through local governments acting as agents
          and instrumentalities of the state;

               (2) State assistance to local governments and
          their instrumentalities in      financing public
          transportation systems to be operated by local
          governments as determined by local needs; and

              (3) coordinated direction by a single state
         agency of both highway development and public
         transportation improvement. (Emphasis added).

This statute establishes a "formula" program and a "discretionary"
program for funding projects, both programs to be administered by the
State Highway and Public Transportation Commission. "Formula program"
funds may be used during the year they are allocated therefor only to
provide sixty-five percent (65%) of the local share requirements of
federally funded projects       for  capital improvements, whereas
"discretionary program" funds may be used when federal funds are
unavailable. -Id. §§3(d), 4(c).

     Subsection 3(c) of article 6663~ provides that the funds
allocated to the formula program are to be apportioned annually on the
basis of a formula recognizing population and population density. The




                                 p. 1342
.


    Honorable George N. Rodriguez, Jr. - Page 3   (MW-395)



    designated recipients of an eligible urbanized area "are entitled to
    receive an amount equal to [the sum derived by applying the formula to
    the funds allocated to the entire formula program]." A "designated
    recipient" is defined by subsection 3(b) of the statute as a local
    governmental entity designated as a recipient of federal funds by the
    governor with the concurrence of the Secretary of the United States
    Department of Transportation. V.T.C.S. art. 6663~. 93(b). "Local
    share requirements" are the amounts required and eligible to match
    federally funded projects, and "federally funded projects" are those
    "proposed for funding under [article 6663~1" being funded in part
    under the Urban Mass Transportation Act [49 U.S.C.A. 516.01 et seq.],
    or other federal programs. e    V.T.C.S. art. 6663c, §§2(4). 2(5).

         In suggesting that the commission has no discretion in the
    matter, you rely most heavily upon subsection 3(e) of article 6663~.
    which reads:

                  Within 30 days after an application for funds
             under the formula program is received, if there
             are unallocated formula funds for the applicant,
             the commission shall certify to the federal
             government that the state share of the local share
             requirement is available. The application must
             contain a    certification by     the   designated
             recipient that:

                   (1) funds are available to provide 35 percent
              of the local share requirement of federally
              assisted programs; and

                   (2)  the proposed public     transportation
             project is consistent with ongoing, continuing,
             cooperative,    and    comprehensive     regional
             transportation planning being carried out in
             accordance with the provisions of the Urban Mass
             Transportation Act of 1964, as amended, and the
             Federal-Aid Highway Act of 1973, as amended.
             (Emphasis added).

         In our opinion, the requirement of subsection 3(e)(2) of article
    6663~ that the local designated-recipient certify the proposed
    transportation project to be consistent with "ongoing, continuing,
    cooperative, and comprehensive regional transportation planning being
    carried out in accordance with the provisions of the Urban Mass
    Transportation Act" is a requirement that the designated recipient
    satisfy the State Highway and Public Transportation Commission of that
    fact. Cf. 49 U.S.C. 051604(g), 1607(a), (b)(l) (cooperation with
    state required). The commission is charged with administrative
    control of the State Department of Highways and Public Transportation,
    article 6663, V.T.C.S., and the development and maintenance of a
    comprehensive master plan for public and mass transportation in this
    state is expressly lodged in the department by article 6663b. The




                                 p. 1343
Honorable George N. Rodriguez, Jr. - Page 4   (m-395)



"application for funds under the formula program" which such a local
certification must accompany under subsection 3(e) of article 6663~ is
clearly to be addressed to the commission, not to the federal agency.

     Federal law must be complied with in order to receive federal
funds, but such requirements do not limit or affect the authority of
either local governments or the State Department of Highways and
Public Transportation to accept or refuse them. See Futch v. Greer.
353 S.W.2d 896 (Tex. Cl". ADD. - Amarillo 1962, writ ref'd n.r.e.),
cert. denied, 3j2 U.S. 91?'(1963).      See al& Calvert v. Capitai
Southwest Corporation, 441 S.W.2d 247 (Tex. Civ. App. - Austin 1969,
writ ref'd n.r.e.), appeal dismissed, 397 U.S. 321 (1970); 28 Tex.
Jur. 2d Highways and Streets 5174, at 206. The legislature, which
controls such matters in Texas. has exuresslv charned the department
with a duty to develop and maintain a comprehensive master plan for
public and mass transportation development in this state, and has
expressly invested it with authority to conduct hearings and make
investigations "it considers necessary to determine" the location,
type of construction, and cost of systems financed in whole or in part
by the state. The word "determine" means to settle, to come to a
decision, to decide after investigation. Wood v. Department of Public
Safety, 311 S.W.2d 274, 276 (Tex. Civ. App. - San Antonio 1958, no
writ). See also Federal Royalty Co. v. State, 98 S.W.2d 993, 995
(Tex. 1936). In our opinion this authority carries with it the
incidental authority to determine whether locally sponsored projects
are consistent with the state's comprehensive master plan for the
development of public and mass transportation in Texas. See V.T.C.S.
art. 6666 (rulemaking power).

     Within 30 days after an application is received, the commission
is required by subsection 3(e) to certify to the federal government
that the stats share of the local share requirement is available "if
there are unallocated formula funds for the applicant." It is argued
that this provision imposes a ministerial duty upon the commission to
make the certification if by mathematical calculation it can be
determined that a sufficient amount remains available from the amount
originally "apportioned" for use by local governments in that area.
But, we are of the opinion that the commission is entitled to first
satisfy itself that the certification of consistency made by the local
applicant speaks the truth.

     We do not understand subsection 3(e) of article 6663~ to be a
legislative command that the commission fund with state money projects
that the department considers in conflict with the state's master plan
or contrary to the interests of the state insofar as the location,
types of construction and costs of proposed projects are concerned.
The word "shall," as used in statutes, sometimes has a directory and
not a mandatory meaning.     Thomas v. Groebl, 212 S.W.2d 625 (Tex.
1948). We think it does so here. See Lewis v. Jacksonville Building
and Loan Association, 540 S.W.2d 307 (Tex. 1976). In our opinion, the
State Highway and Public Transportation Commission can refuse to
provide funds under the formula program established by article 6663c,




                                p. 1344
Honorable George N. Rodriguez. Jr. - Page 5     (Mw-395)



V.T.C.S.. if it reasonably determines that the project proposed for
funding is inconsistent with the purposes of article 6663~.

                               SUMMARY

               The   Highway   and   Public   Transportation
          Commission is empowered to refuse funds to a
          designated recipient under the formula program
          established by article 6663c, V.T.C.S., if it
          reasonably determines that the project proposed is
          inconsistent with the purposes of article 6663~.

                                         zzx



                                           MARK      WHITE
                                           Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Bruce Youngblood




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