Untitled Texas Attorney General Opinion ( 1994 )

QBfficeof tly Bttornep Qheral
&tate of IICexae
DAN MORALES
ATTORNEY
GENERAL April 11,1994
Mr.Robert
w.oee Opinion No. DM-288
Chair
Public Utility Commission of Texas Re: Authority of the Public Utility
7800 Shoal Creek Boulevard Commission of Texas to apply for, receive,
Austin, Texas 78757 and expend federal funds, and related
questions (RQ-664)
You have requested advice about the authority of the Public Utility Commission of
Texas to receive federal 8mds. You write that you are aware of several federal grants that
the commission could use to acquire, analyze, and use significant new information. You
ik3tS.k:
Considering Chapter V, 5 22, of the Appropriations Act . , and the
Public Utility Regulatory Act , may the [commission] directly
or indiiectly apply for, receive, and/or expend federal finds?
You refer to federal grants for the purpose of acquiring, analyzing, and using
significant new information. Among other projects, you are interested in obtaining a
federal grant to purchase a Geographic Information System, which relates data base
information to the map. This system would enable the commission to compile and analyze
utility information according to geographic regions. We believe article 1446c, V.T.C.S.,
the Public Utility Regulatory Act, authorizes the commission to seek federal grants to
assist in carrying out its statutory duties.
The commission has statutory authority to acquire and analyxe utility information,
as well as other related kinds of information. See V.T.C.S. art. 1446c, @8(b)(5)
(requiring commission to employ director of research experienced in analysis of industry,
economics, energy, firel, and other related matters), 16(b) (requiring commission to
develop long-term statewide electrical energy forecast), (e) (requiring commission to
review and evaluate electric utilities’ forecast of load and resources). The commission has
the general power to regulate and supervise the business of every
public utility within its jurisdiction and to do all things, whether
specifically designated in this Act or implied herein, necessary and
convenient to the exercise of this power and jurisdiction.
Id, 5 16(a). Moreover, the Public Utility Regulatory Act is to be “construed liberally to
promote the effectiveness and efficiency of regulation of public utilities. .‘I Id. 9 89.
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Mr. Robert W. Gee. - Page 2 (DM-288)
We believe that the commission has authority to apply for federal grants when “necessary
and convenient to the exercise” of its general power to regulate public utilities. In our
opinion, the commission is authorized to seek and receive a federal grant to purchase the
Geographical Information Service you described, assuming that the conditions attached to
the particular grant are conditions that the commission may accept. See also Gov’t Code,
$403.012 (comptroller may accept federal money for a state agency not otherwise
restricted by statute, rider, or special provision in the general appropriations act).
Whether the commission has statutory authority to apply for grants for other purposes
must be determined on a case-by-case basis. In general, if the commission has statutory
authority to receive an appropriation for a particular service or item, we believe it may
also seek federal timding for that service or item.
You are concerned, however, that article V, section 22 of the current general
appropriations act bars the appropriation to the commission of federal finds received
during the current biennium. Federal grant finds, like other funds received by state
agencies, must be deposited in the state treasury. Gov’t Code 5 404.094; Attorney
General Opinion IM-772 (1987). Once fimds are in the treasury, they may be withdrawn
only by appropriation by the legislature. Tex. Const. art. VIII, 5 6. The general
appropriations act may include items of appropriation, which state the amount and
purpose of funds allocated to state agencies, and riders that detail, limit, or restrict the use
of finds appropriated by the act.’ Tex. Const. art. III, § 35; Attorney General Opinion
V-1254 (1951); see alsoMoore v. Sheppard,192 S.W.2d 559, 561 (Tex. 1946); Attorney
General Opinion DM-I 16 (1992) (general legislation may not be enacted in a general
appropriations bill). Article V, section 22 of the general appropriations act appropriates
federal fimds received during the current biennium to the agencies authorized to use them,
subject to stated limitations. See Attorney General Opinions IM-772 (1987) at 7-8; H-550
(1975) at 3-4. It states in part:
All fimds received from the United States government by state
agencies and institutions named in this Act are hereby appropriated
to such agencies for the purposes for which the federal grant,
allocation, aid, payment or reimbursement was made subject to the
following:
a. Except for institutions and agencies of higher education,
federal funds including unexpended balances shall be
deposited to and expended from the specific program
identified under each agency’s appropriation bill pattern.
IIn addition, article XVI, s&ion 69 of the Texas Constitution now authorizes the legislature to
require, by rider in the general appropriationsact or by separate statute, the prior approval of an
expenditore or the emergency transfer of any hnd.5 appropziated to agencies of state government.
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Mr. Robert W. Gee - Page 3 (DM-288)
Except for institutions and agencies of higher education, no
federal timds may be expended for strategies or Smctions
other than those which have been reviewed by the Seventy-
third Legislature and authorized by specitic language in this
Act or encompassed by an agency’s budget structure as
established by this Act.
Acts 1993, 73d Leg., ch. 1051, art. V, 5 22, at 5351.’ You read the first sentence in
paragraph a. of this rider as allowing the commission to use federal timds only if its
appropriation specifically identifies a program as timded by federal funds. Since the
appropriation to the Public Utility Commission does not identity any program as being
timded by federal timds, you are concerned that any federal funds granted to the
commission during this biennium would not be appropriated to it. See Acts 1993, 73d
Leg., ch. 1051, art. I, at 4854-61.
The tirst sentence in paragraph a. does not expressly state that federal finds may
only be deposited to a program specifically identified as a recipient of federal funds, but
states that federal timds are to be deposited to “the specific program identified” under the
agency’s appropriation bill pattern. We read “specific program” as refening to the items of
appropriation in each agency’s appropriation. The current appropriations act refers to the
items of appropriation as “strategies.” Moreover, in this context, the word “identified
means “set out” or “listed” in the agency’s appropriation. Thus, federal funds granted to
an agency may only be deposited to and spent from one of the specific programs, or
strategies, listed in its appropriation. If the commission’s appropriation includes an item
that may be spent for a computerized mapping system, federal funding for that purpose
may be deposited to that item.
The second sentence in paragraph a. prohibits the expenditure of federal funds for
programs other than those reviewed by the 73d legislature and authorized by the specific
language of the general appropriations act or by the agency’s budget structure. See
generally Attorney General Opinion JM-772 (1987) (construing second paragraph of
virtually identical provision in 1986-1987 appropriations act). Both sentences of
paragraph a. have a similar effect: a state agency, except for an agency or institution of
higher education, may spend federal fimds for the purpose for which they were granted
only if the agency’s appropriation authorizes expenditures for that purpose.
The appropriation to the Public Utility Commission appropriates funds for various
strategies that appear broad enough to encompass an expenditure for the Geographical
Information Service. For example, the commission receives funds to
zArticleV, section22 of the currentgeneralappropriationsact also includesother provisionsthat
are not relevantto your question.
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Mr. Robert W. Gee - Page 4 (DM-288)
Assess the demand and current supply of electricity and determine
the need for additional resources. .
Process and analyze filings to change boundaries
Examine and review all construction reports filed by electric utilities
for new transmission tines and power plants. lIHJaintain database
of telecommunications construction information.
Acts 1993, 73d Leg. ch. 1051, art. I, at 4856, 4857 (strategies B.l.l., B.2.1., and C.l.l.).
In our opinion, these specific appropriation items are broad enough to encompass an
expenditure for a Geographical Information System, and there may be other items in the
commission’s budget that could also be spent for this purpose. Federal grant tirnds
received for this purpose during the current biennium may be deposited to and expended
from one of these accounts or another account that would permit the expenditure of state-
generated fimds for that purpose. See generdy Attorney General Opinion JM-916
(1988).
Your other questions are contingent on a contrary reading of section 22.
Accordingly, we need not answer them.
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Mr. Robert W. Gee - Page 5 (DM-288)
SUMMARY
The Public Utility Commission has authority under V.T.C.S.
article 14461~to apply for federal grants necessary and convenient to
the exercise of its general power to regulate public utilities. Federal
grsnt finds are placed in the state treasury, ,and chapter V, section 22
of the current general appropriations act appropriates them to the
agencies for the purposes for which the federal grant was made,
subject to stated conditions. Among other conditions, section 22
provides that federal tirnds granted to an agency, other than an
agency or institution of higher education, may only be deposited to
and spent from one of the specillc programs listed in the agency’s
appropriation. If an item of appropriation in the wnunission’s
appropriation could be spent for the purposes for which the federal
grant was received, the federal grant funds may be deposited to and
spent from that item.
j-~you~o_lr
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fist Assistant Attorney General
DREW DURHAh4
Deputy Assistant Attorney General for Criminal Justice
WILL PRYOR
Special Counsel
RENEA HICKS
State Solicitor
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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