Untitled Texas Attorney General Opinion ( 1981 )

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;
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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
p. 1345