Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORKEY GENERAL . STATE OF TEXAS
JOHN CORNYN
May 6,2002
The Honorable Juan J. Hinojosa Opinion No. JC-0501
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives Re: Whether the governor is authorized to
P.O. Box 2910 increase and appropriate state motor vehicle
Austin, Texas 787682910 registration fees (RQ-0475-JC)
Dear Representative Hinojosa:
You ask whether “the governor [may] raise the state vehicle registration fee, without
approval, for the purpose of generating funds to help Texas hospitals, emergency medical personnel,
police and firefighters develop and improve their capabilities to respond to, and prevent terrorist
biological and chemical attacks in Texas.“’ We conclude that only the legislature may set,
appropriate, allocate and direct the use of state motor vehicle registration fees. However, chapter
3 17 of the Government Code authorizes the governor and the legislative budget board in the event
of an emergency to act to redirect state motor vehicle registration fees already appropriated by the
legislature for particular purposes to other uses permitted by article VIII, section 7-a of the Texas
Constitution. See TEX. GOV’T CODE ANN. ch. 317 (Vernon 1998 & Supp. 2002). You also ask
whether “the automobile state registration fee [is] considered a tax, which would require action by
the House Ways and Means Committee?“* Whether proposed or contemplated legislation falls
within the jurisdiction of a particular House committee is a matter to be determined by the House
of Representatives.
First, we address the governor’s authority over the amount and use of state motor vehicle
registration fees. Article II, section 1 of the Texas Constitution provides for the three branches of
government - legislative, executive, and judicial - and provides that “no person, or collection of
persons, being of one of these departments, shall exercise any power properly attached to either of
the others, except in the instances herein expressly permitted.” TEX. CONST. art. II, 0 1. The Texas
Constitution vests “[tlhe Legislative power of this State” in “‘The Legislature of the State of
Texas,“’ id. art. III, 8 1, a power which includes the authority to enact laws, to impose taxes, to raise
other revenue, and to appropriate state funds, see, e.g., id. art. III, $9 29-3 1 (laws enacted by bills
passed by both legislative houses), 33 (“All bills for raising revenue shall originate in the House of
‘Letter from Honorable Juan J. Hinojosa, Chair, Committee on Criminal Jurisprudence, to Honorable
John Cornyn, Texas Attorney General, (Nov. 26,200l) (on file with Opinion Committee) [hereinafter Request Letter].
21d.
The Honorable Juan J. Hinojosa - Page 2 (JC-0501)
Representatives.“), art. VIII, $9 1 (legislature authorized to provide for taxation of property and to
impose occupation taxes), 3 (“Taxes shall be levied and collected by general laws and for public
purposes only.“), 6 (“No money shall be drawn from the Treasury but in pursuance of specific
appropriations made by law . . .“). Th e T exas Constitution requires the governor to present the
legislature with “estimates of the amount of money required to be raised for taxation for all
purposes” and authorizes him to veto items of legislative appropriation, see id. art. IV, $9 9,14, but
it does not give the governor the authority to raise revenues, to establish fees, or to appropriate funds.
Article VIII, section 7-a vests the authority to appropriate, allocate and direct use of motor
vehicle registration fees in the legislature, providing in pertinent part:
Subject to legis Iative appropriation, allocation and direction,
all net revenues remaining after payment of all refunds allowed by
law and expenses of collection derived from motor vehicle
registration fees . . . shall be used for the sole purpose of acquiring
rights-of-way, constructing, maintaining, and policing such public
roadways, and for the administration of such laws as may be
prescribed by the Legislature pertaining to the supervision of traffic
and safety on such roads.
Id. art. VIII, 8 7-a (emphasis added).
The legislature has established the amount of motor vehicle registration fees in chapter 502
of the Transportation Code. See, e.g., TEX. TRANSP. CODE ANN. $9 502.160-. 173 (Vernon 1999 &
Supp. 2002). Fees are collected at the county level by county tax assessor-collectors. See id.
$5 502.101, .102. Pursuant to statute, the legislature has provided that fees that are not retained by
the counties for road construction, see id. 9 8 502.102, .108, are transferred to the Texas Department
of Transportation, which must deposit the fees in the state treasury to the credit of the state highway
fund, see id. 8 502.05 1. The legislature has enacted numerous statutes providing for use of the state
highway fund. See, e.g., id. $9 201.002,202.002,22 1.003,222.001, .002. Article VIII, section 7-a
of the Texas Constitution dedicates motor vehicle registration fees to a particular use; thus, the
portion of the state highway fund that consists of state motor vehicle registration fees (and other
constitutionally dedicated monies) may not be diverted to other purposes. See Tex. Att’y Gen. Op.
Nos. JC-0250 (2000), JM-323 (1985).
With these general principles in mind, we turn to your first question. Again, you ask whether
“the governor [may] raise the state vehicle registration fee, without approval, for the purpose of
generating funds to help Texas hospitals, emergency medical personnel, police and firefighters
develop and improve their capabilities to respond to, and prevent terrorist biological and chemical
attacks in Texas.” Request Letter, supra note 1, at 1. Because articles III and VIII of the Texas
Constitution vest the legislative branch with the authority to enact legislation and to raise state
revenue, because article VIII, section 7-a specifically vests the legislature with the sole authority to
appropriate, allocate, and direct use of state motor vehicle registration fees, and because the
The Honorable Juan J. Hinojosa - Page 3 (JC-0501)
legislature has set the amount and use of the state motor vehicle fees by statute, we conclude that the
governor may not raise or appropriate state motor vehicle registration fees. See TEX. CONST. art. II,
8 1 (“no person, or collection of persons, being of one of these departments, shall exercise any power
properly attached to either of the others, except in the instances herein expressly permitted”).
This is not the end of our analysis, however. Under Texas law, the governor has authority
to determine how state funds are allocated if the legislature has delegated that authority to that office.
See Tex. Att’y Gen. Op. No. JM-772 (1987) (“A corollary of the legislature’s exclusive control over
the appropriation of state funds is its exclusive control over how state funds are to be spent. Under
state law the governor has no power to make determinations about how state money is to be
distributed unless that power is expressly given to him by constitutional or statutory grant.“)
(citations omitted). Article XVI, section 69 ofthe Texas Constitution provides that “[tlhe legislature
may require, by rider in the General Appropriations Act or by separate statute, the prior approval of
the expenditure or the emergency transfer of any funds appropriated to the agencies of state
government.” TEX. CONST. art. XVI, 5 69. The legislature has delegated to the governor and the
legislative budget board the authority to redirect legislative appropriations in case of an emergency,
when the legislature is not in session. Specifically, chapter 3 17 of the Government Code authorizes
the governor or the legislative budget board, “[alfter finding that an emergency exists,” to “propose
that the authority to spend, obligate the expenditure of, or distribute part or all of an appropriation
made to a state agency: (1) be transferred to another state agency to be used for a specified purpose;
or (2) be retained by the agency to which the appropriation was made but used for a purpose different
from or additional to the purpose for which the appropriation was made.” TEX. GOV’T CODE ANN.
fj 3 17.002(b) (V emon 1998); see also id. 8 0 3 17.004--005 (Vernon 1998 & Supp. 2002) (procedural
requirements). The legislative budget board may hold a public hearing on a proposal of the governor
and may adopt, reject, or recommend changes to the proposal. See id. 8 317.005(a) (Vernon Supp.
2002); see also id. 5 3 17.005(b) (governor’s authority with respect to board proposal). “Funds
dedicated by the Texas Constitution are subject to being withheld under this chapter but are not
subject to transfer except to another state agency entitled to receive appropriations from the funds
under the terms of the constitution.” Id. 5 3 17.003(b) (Vernon 1998). Thus, under chapter 3 17, in
the event of an emergency, the governor and the legislative budget board could act to redirect state
motor vehicle registration fees already appropriated by the legislature for particular purposes to other
uses permitted by article VIII, section 7-a of the Texas Constitution.
You also ask whether “the automobile state registration fee [is] considered a tax, which
would require action by the House Ways and Means Committee?” Request Letter, supra note 1, at
1. As a general matter, courts in Texas uniformly have held that, in determining whether a
statutorily created charge is a tax or a fee, the test is that of purpose. If the overall primary purpose
of the charge is to raise revenues, then it is a tax; if its primary purpose is regulation, then it is a fee.
See, e.g., Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 460-63 (Tex.
1997); Conlen Grain and Mercantile, Inc. v. Tex. Grain Sorghum Producers Bd., 5 19 S.W.2d 620
(Tex. 1975); R o b inson v. Hill, 507 S.W.2d 521 (Tex. 1974); County of Harris v. Sheppard, 291
S.W.2d 721 (Tex. 1956); see also Tex. Att’y Gen. Op. Nos. JC-0001 (1999), JM-963 (1988). Motor
vehicle registration fees have been held to be taxes for some purposes, but not for others. Compare ,
The Honorable Juan J. Hinojosa - Page 4 (JC-0501)
County of Harris, 291 S.W.2d 721 (holding that motor vehicle registration fees are taxes for
purposes of article VIII, section 3 of the Texas Constitution and therefore must be levied and
collected by general as opposed to special laws) with Atkins v. State Highway Dep ‘t, 201 SW. 226
(Tex. Civ. App.-Austin 1918, writ ref d) (holding that statutory motor vehicle registration fees were
not taxes for purposes of article VIII, sections 1 and 2 of the Texas Constitution but rather license
fees for the privilege of operating vehicle on public highways).
For purposes of your question, however, the relevant inquiry is how the House of
Representatives characterizes motor vehicle registration fees, which are constitutionally authorized,
in determining whether bills are to be considered by the House Ways and Means Committee. Article
III, section 11 of the Texas Constitution provides that each house of the legislature may “determine
the rules of its own proceedings.” TEX. CONST. art. III, 5 11. The constitution requires that a bill be
referred to a legislative committee before it is considered, but does not establish particular
committees or mandate the referral of certain categories of bills to certain committees. See id. art.
III, 8 37. Section 301.013(a) of the Government Code provides that each house “may determine the
number, composition, function, membership, and authority of its committees” by its rules of
procedure or by simple resolution. See TEX. GOV’T CODE ANN. 8 301.013(a) (Vernon 1998). Given
the authority of each house to establish its own rules of procedure and to determine the authority of
its own committees, and in light of the absence of any applicable constitutional or statutory
requirements, the determination whether proposed or contemplated legislation falls within the
jurisdiction of a particular House committee is within the sole province of the House of
Representatives.
We note that article III, section 33 provides that “[ a]11bills for raising revenue shall originate
in the House of Representatives.” TEX. CONST. art. III, 9 33; see also Day Land & Cattle Co. v.
State, 4 SW. 865 (Tex. 1887) (article III, section 33 requirement “confined to bills to levy taxes in
the strict sense of the words, and has not been understood to extend to bills for other purposes, which
may incidentally create revenue”). We do not understand you to ask whether a bill regarding motor
vehicle registration fees must originate in the House of Representatives but rather whether such a
bill must be considered by the House Ways and Means Committee as opposed to some other House
committee.
The Honorable Juan J. Hinojosa - Page 5 (JC-0501)
SUMMARY
The governor is not authorized to increase or appropriate state
motor vehicle registration fees. However, chapter 3 17 of the
Government Code authorizes the governor and the legislative budget
board in the event of an emergency to act to redirect state motor
vehicle registration fees already appropriated by the legislature for
particular purposes to other uses permitted by article VIII, section 7-a
of the Texas Constitution.
Whether proposed or contemplated legislation falls within the
jurisdiction of a particular House committee is a matter to be
determined by the House of Representatives.
Yo s ve truly
4&i-
JOfiN CORNYN
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee