                             ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                           December 17, 2008



Mr. Amadeo Saenz, Jr., P.E.                              Opinion No. GA-0687
Executive Director
Texas Department of Transportation                       Re: Whether monies held in trust in a certain
125 East Eleventh Street                                 subaccount of the state highway fund may be
Austin, Texas 78701-2483                                 transferred to a regional transportation authority
                                                         (RQ-0721-GA)

Dear Mr. Saenz:

        You ask whether monies held in trust in a certain subaccount ofthe state highway fund may
be transferred to a regional transportation authority, i.e., a fund outside the state treasury. 1

        You state that in November 2007, the North Texas Tollway Authority paid the Texas
Department of Transportation ("TxDOT") approximately $3.2 billion under a comprehensive
development agreement. See Request Letter at 1-2. TxDOT has determined that the payment "is
surplus toll revenue" derived from "the State Highway 121 project in Denton and Collin counties."
Id. Consistently with Transportation Code sections 228.005 and 228.012, we assume that TxDOT
deposited the payment in a subaccount of the state highway fund for the State Highway 121 ("SH
121") project. See TEX. TRANSP. CODE ANN. §§ 228.005, .012 (Vernon Supp. 2008).

      You also state that TxDOT "has entered into an agreement with the Regional Transportation
Council (RTC) of the North Central Texas Council of Governments," which you indicate is the
metropolitan planning organization for the Dallas-Fort Worth region. Request Letter at 2. That
agreement "assigns the responsibility for allocating the money in the SH 121 subaccounts to the
RTC, subject to the concurrence of the Texas Transportation Commission." Id.

       Section 228.012 of the Transportation Code provides in relevant part:

                       (a) The department shall create a separate account in the
               state highway fund to hold payments received by the department
               under a comprehensive development agreement ....

                       (b) The department shall hold money in a subaccount in trust
               for the benefit of the region in which a project or system is located


       IRequest Letter (available at http://www.texasattomeygeneral.gov).
Mr. Amadeo Saenz, Jr., P.E. - Page 2                   (GA-0687)



                  and may assign the responsibility for allocating money, in a
                  subaccount to a metropolitan planning organization in which the
                  region is located. ....

TEX. TRANSP. CODE ANN. § 228.012(a)-(b) (Vernon Supp. 2008). These provisions clearly
demonstrate that TxDOT is required to hold the funds in question "in a subaccount in trust for the
benefit of the region." Id And as we have noted, section 228.005 mandates the deposit of these
funds "in the state highway fund." Id. § 228.005. A briefwe have received argues that, because the
RTC is assigned the responsibility to allocate the money, it may also determine the time at which
that money shall be distributed. 2 But "allocate" and "distribute" are not equivalent terms.

       No judicial decision of which we are aware recognizes the distinction between the terms
"allocate" and "distribute."3 One dictionary equates the two terms. See NEW OXFORD AMERICAN
DICTIONARY 43 (2001) ("allocate" defined as "distribute ... for a particular purpose"). Another
standard dictionary, while including the meaning of"distribute according to a plan," also defines the
term "allocate" to mean "set apart for a special purpose; designate." See AMERICAN HERITAGE
DICTIONARY 48 (4th ed. 2000). The latter dictionary declares that the synonyms for "allocate"
include the words "appropriate," "designate," and "earmark." Id.

        Other portions of the Transportation Code, however, appear to recognize a distinction
between the words "allocate" and "distribute." One provision states that "[t]he department shall
allocate the distribution of funds to department districts in the region that are located in the
boundaries of the metropolitan planning organization." TEX. TRANSP. CODE ANN. § 228.0055(b)
(Vernon Supp. 2008) (emphasis added). Another provision ofthe code, relating to the distribution
of the county and road district highway fund, is even more instructive:

                         (a) The comptroller shall distribute to the counties on. or
                  before October 15 of each year the money appropriated from ~he
                  county and road district highway fund for that fiscal year.

                         (b) The money appropriated under Subsection (a) shall be
                  allocated among the counties as follows: ....

Id § 256.002 (emphasis added). Finally, a provision of the Transportation Code that was repealed
in 2003, stated that "[o]f the money allocated under Section 456.022(1), the commission shall



      . 2See Brief from Rider Scott, Strasburger & Price, LLP, on behalf of the North Central Texas Council of
Governments, to Honorable Greg Abbott, Attorney General of Texas, at 3-4 (Aug. 8, 2008) (on file with the Opinion
Committee).

         3The highest court of another state has recognized the distinction between the words "allocation" and
"appropriation." In State ex reI. Haynes v. District Court, 78 P.2d 937, 943 (Mont. 1938), the court said that the word
"allocation" refers to an apportioning of funds, while the word "appropriation" refers to an authorization to spend those
funds. That case was specifically cited by this office in Letter Advisory No. 102 (1975).
Mr. Amadeo Saenz, Jr., P.E. - Page 3          (GA-0687)



distribute: ...." Act of May 19, 1997, 75th Leg., R.S., ch. 588, § 5, 1997 Tex. Gen. Laws 2052,
2053, repealed by Act ofJune 1,2003, 78th Leg., R.S., ch. 312, § 79(b), 2003 Tex. Gen. Laws 1310,
1330 (emphasis added). These statutes indicate that the Legislature knows the distinction between
the words "allocate" and "distribute," and that, by its use of the term "allocate" in section 228.012
of the Transportation Code, it did not thereby intend to equate the word "allocate" with the word
"distribute." Thus, while section 228.012(b) authorizes a metropolitan planning organization to
"allocate" money in a subaccount of the state highway fund, that authority does not extend to a
"distribution" of the funds.

        We conclude that section 228.012 ofthe Transportation Code does not provide authority for
the Texas Department of Transportation to transfer monies held in trust in a particular subaccount
of the state highway fund to a regional transportation authority.
Mr. Amadeo Saenz, Jr., P.E. - Page 4        (GA-0687)



                                     SUMMARY

                      Section 228.012 ofthe Transportation Code does not provide
              authority for the Texas Department of Transportation to transfer
              monies held in trust in a particular subaccount of the state highway
              fund to a regional transportation authority.

                                            Yours very truly,




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
