Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 30,2011
The Honorable Jeff Wentworth Opinion No. GA-0852
Chair, Select Committee on
Open Government Re: Meaning of the term "enacted revenue
Texas State Senate measures" for purposes of section 17.10 of article
Post Office Box 12068 IX of the 2010-2011 General Appropriations Act,
Austin, Texas 78711-2068 which relates to the funding of rail relocation and
improvement (RQ-0925-GA)
Dear Senator Wentworth:
You ask about the meaning of the term "enacted revenue measures" for purposes of section
17.10 of article IX of the 2010-2011 General Appropriations Act, which relates to the funding of
rail relocation and improvement.!
Article IX, section 17.1 O( a) of the current General Appropriations Act allocates $91 million
per year for state fiscal years 2010 and 2011 from the State Highway Fund to the Texas Rail
Relocation and Improvement Fund for purposes authorized by Texas Constitution article III, section
49-0. See General Appropriations Act, 8lstLeg., R.S., ch. 1424, art. IX, § l7.IO(a), 2009 Tex. Gen.
Laws 4483, 5374 (the "Appropriations Act"). The allocation is contingent on a "finding of fact"
issued by the Comptroller of Public Accounts (the "Comptroller") that certain "items result in a net
increase for the 2010-2011 state fiscal biennium of at least $182 million over the 2008-2009 state
fiscal biennium." [d. § 17 .1O(b). The item in question here is as follows:
(1) the net impact of enacted revenue measures on incoming revenue
of the State Highway Fund that is not dedicated under Article 8,
Section 7 -a of the Texas Constitution;
[d. § 17.l0(b)(1) (emphasis added).
You ask specifically whether sources of revenue for the State Highway Fund 006 listed in
the Appropriations Act constitute "enacted revenue measures" within the meaning of article IX,
'See Letter from Honorable Jeff Wentworth, then Chair, Select Committee on Veterans' Health, Eighty-first
Legislature, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Oct. 19, 2010) (on file with the Opinion
Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
The Honorable Jeff Wentworth - Page 2 (GA-0852)
§ 17 .lO(b )(1). Request Letter, supra note I, at 1. You state that the Comptroller's ability to make
the required findings of fact turns on the legal meaning of the term "enacted revenue measures" as
used in article IX, section 17.1 O(b)(1) of the Act. Id. at 2. The Office of the Comptroller opines that
the determination under section 17.1 O(b)( I) requires an analysis of net impact limited to enactments
promulgated by the Eighty-first Legislature? You contend, however, that "the term refers to
measures passed by the Legislature that place revenue into State Highway Fund 006, regardless of
when such measures were enacted." Request Letter, supra note I, at 2.
The Appropriations Act does not define the term "enacted revenue measure," nor are we
aware of any other statute, rule, judicial opinion or administrative opinion that defines the term. We
observe, however, that section 17.lO(b)(I) by its terms does not limit the determination of the net
impact of "enacted revenue measures" only to new revenue legislation. 3 The word "enacted" denotes
a time in the past, but it does not suggest any further temporal restriction. Construing the phrase as
limited to newly enacted revenue measures would add a qualifier that is not in the statute.
Ordinarily, courts do not "insert additional words into a statutory provision." Hunter v. Fort Worth
Capital Corp., 620 S.W.2d 547,552 (Tex. 1981): Moreover, courts presume that the Legislature
chooses its words carefully, that each word in a statute is included for a purpose, and that words not
included were purposefully excluded. Kappus v. Kappus, 284 S.W.3d 831,835 (Tex. 2009); In re
M.N., 262 S.W.3d 799,802 (Tex. 2008). Had the Legislature intended to limit the Comptroller's
determination to revenue measures enacted by the Eighty-first Legislature, it could easily have done
so. See, e.g., Appropriations Act, art. IX, §§ 17.25-.121,2009 Tex. Gen. Laws 4483,5378-97.
(providing appropriations contingent on various legislation by the "Eighty-first Legislature"). We
conclude that legislative enactments which provide for incoming revenue for the State Highway
Fund constitute "enacted revenue measures" under article IX, section 17.1O(b)(1) of the
Appropriations Act, regardless of when they were enacted. Whether the items described in
2See Brief from Ashley Harden, General Counsel, Texas Comptroller of Public Accounts, at 1 (Nov. 8, 2009)
(stating that "the Section 17.\O(b)(I) test focuses on the enactment of additional revenue measures and not on the
increase in appropriations levels" (emphasis added» (on file with the Opinion Committee) [hereinafter Comptroller's
Brief\.
3In this context, a "measure" can refer to an existing statute or to a legislative proposal such as a bill. See TEx.
GOY·TCODEANN. § 572.059(a) (West 2004) (defining "legislative measure" to include "a bill, resolution, order, or other
proposal to adopt, enact, amend, or repeal a statute, ordinance, rule, or policy of general application" and certain other
proposals); Calvert v. McLemore, 358 S.W.2d 551, 552 (Tex. 1962) (determining that statutory tax on entertainment
tickets was "plainly a revenue measure" rather than a regulatory measure); Tex. All'y Gen. Op. No. JC-0093 (1999) at
6 (noting that statutes for user fees designed as reimbursement for use of government-owned facilities are not true
"revenue measures").
'The Office ofthe Comptroller states that it bases its construction of article IX, section 17 .1O(b)( 1) consistently
with judicial and administrative authorities that consider the meaning of "revenue measure." Comptroller's Brief at 1
(citing Hurt v. Cooper, 1 \0 S.w.2d 896 (Tex. 1937); Tex. All'y Gen. Op. Nos. JC-0093 (1999), M-443 (1969), M-370
(1969), WW-1482(1962), WW-714 (1959), WW-694 (1959». In the authorities cited, the issue generally was whether
a particular measure was a tax statute or a licensing statute, and they do not illuminate the issue of whether "enacted
revenue measures" should be construed as "the enactment of additional revenue measures." Comptroller's Brief at 1
(emphasis added).
The Honorable Jeff Wentworth - Page 3 (GA-0852)
section 17.1 O(b) produce the "net increase" required forthe appropriation in section 17.1 O( a) remains
a matter for determination by the Comptroller. involving questions of fact beyond the purview of the
opinion process. See Appropriations Act, art. IX, § 17.1O(a-b), 2009 Tex. Gen. Laws 4483, 5374;
Tex. Att'y Gen. Op. No. GA-0485 (2006) at 4 (observing that questions involving issues of fact are
outside the attorney general opinion process).
The Honorable Jeff Wentworth - Page 4 (GA-0852)
SUMMARY
Legislative enactments that provide incoming revenue for the
State Highway Fund constitute "enacted revenue measures" under
article IX, section 17.10(b)(1) of the Appropriations Act, regardless
of when they were enacted.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRlGHT
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion· Committee