No. ( 1982 )

Lee White Executive Director Officer of State Planning and Budgeting State Capitol Denver, Colorado

Dear Mr. White:

I am writing in response to the May 3, 1982 request by Nanci Richards, associate deputy budget director, for a legal opinion concerning the statutory limitations placed on appropriations or statutory distributions from the highway users tax fund. Additional information was provided in a letter from you to Dick Forman of this office, dated March 22, 1982.

QUESTION PRESENTED AND CONCLUSION

In calculating the spending limit on the highway users tax fund for the 1981-82 fiscal year, is the proper base the 1980-81 appropriation plus any supplemental appropriation for that fiscal year passed by the general assembly in 1982?

My conclusion is "yes."

ANALYSIS

Your office has advised me that House bill 1278, passed by the general assembly and signed into law on April 23, 1982 by Governor Lamm, retroactively increased the appropriation for fiscal year 1980-81 from the highway users tax fund. You ask what computation should now properly be used to determine the spending limit for that fund for the 1981-82 fiscal year.

The applicable spending limit is set out in C.R.S. 1973,43-4-201(3)(a) (1981 Supp.) which states as follows:

(3) (a) The general assembly shall not make any annual appropriation (whether by regular, special, or supplementary appropriation) or any statutory distribution from the highway users tax fund for any purpose or purposes in a total amount which is:

(I) More than twenty-three percent of the net revenue of said fund for the prior fiscal year; or

(II) Commencing in the fiscal year 1981-82, more than a seven percent increase over such appropriation for the prior fiscal year.

The above statute expressly provides that starting in fiscal year 1981-82, alternative methods may be used to compute the applicable spending limitation. For 1981-82 that limitation may properly be computed as no more than a seven percent increase over the final appropriation for the prior 1980-81 fiscal year. Since the general assembly chose to retroactively increase the appropriation for fiscal year 1980-81, the final amount as amended should properly serve as the basis for making the optional computation pursuant to C.R.S. 1973, 32-4-201(3)(a)(II) (1981 Supp.). In preparing this opinion I have assumed that the 1982 supplemental appropriation increased the appropriation for fiscal year 1980-81 without exceeding the spending limitation applicable to that year.

SUMMARY

It is therefore my opinion that the spending limit on the highway users tax fund properly may be computed by increasing by seven percent the total of the original appropriation in the 1980-81 Long Bill plus the amount added in 1982 by an amendment to that Long Bill making a supplemental appropriation. This method is illustrated by option 3 set out in your letter of March 22, 1982.

Very truly yours,

J.D. MacFARLANE Attorney General

APPROPRIATIONS HIGHWAYS

C.R.S. 1973, 43-4-201(3)(a)

PLANNING BUDGETING DEPT. Budgeting, Div. of HIGHWAYS, DEPT. OF

In calculating the spending limit on the highway users tax fund for the 1981-82 fiscal year, the proper base is the 1980-81 appropriation plus a subsequent supplemental appropriation passed in 1982.