What counts as an 'enacted revenue measure' for the Texas State Highway Fund rail appropriation?

Plain-English summary

The 2010-2011 state budget set aside $91 million a year from the State Highway Fund for rail relocation and improvement, but only if the Comptroller of Public Accounts first found that certain items produced a net revenue increase of at least $182 million for the 2010-2011 biennium over the prior one. One of those items was "the net impact of enacted revenue measures" on State Highway Fund revenue. State Senator Jeff Wentworth asked the Attorney General what "enacted revenue measures" means, because the Comptroller and the senator read it differently.

The Comptroller took the view that only revenue measures passed by the Eighty-first Legislature counted. The senator argued the term covered any measure that puts revenue into State Highway Fund 006, no matter when it passed. The Appropriations Act did not define the term, and the Attorney General found no statute, rule, or court or administrative decision that did.

Reading the words as written, the Attorney General sided with the broader interpretation. The provision did not limit the net-impact calculation to new revenue legislation. "Enacted" simply means the measure has already been passed; it carries no further timing limit. Adding the word "newly" would insert a restriction the Legislature did not write, and courts presume lawmakers choose their words deliberately and exclude what they leave out. The opinion noted that elsewhere in the same Act the Legislature expressly tied appropriations to legislation "by the Eighty-first Legislature" when it wanted to, and it did not do so here. So the opinion concluded that legislative enactments providing incoming revenue for the State Highway Fund are "enacted revenue measures" under section 17.10(b)(1), regardless of when they were enacted. Whether the specific items actually produce the net increase needed to trigger the appropriation was left to the Comptroller as a question of fact.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Comptroller (as the opinion held for the office): The opinion told the Comptroller that the net-impact determination under section 17.10(b)(1) is not limited to revenue measures enacted by the Eighty-first Legislature, so older enactments that provide State Highway Fund revenue count too. It also confirmed that whether the items produce the required net increase is a factual determination for the Comptroller.

The Legislature and budget officials (as the opinion described it): Under the opinion, "enacted revenue measures" reaches any legislative enactment providing incoming State Highway Fund revenue, whenever passed, because the Act used no timing qualifier here even though it did elsewhere.

On the limit of the opinion (what the AG left to the Comptroller): The opinion expressly declined to decide whether the listed items met the $182 million net-increase threshold, treating that as a fact question beyond the opinion process.

Common questions

Does "enacted revenue measures" only mean bills from the Eighty-first Legislature?
No. The opinion concluded the term covers any legislative enactment providing State Highway Fund revenue, regardless of when it was enacted.

Why didn't the AG read in a time limit?
The opinion reasoned that "enacted" signals only that a measure has already passed, and adding "newly" would insert a qualifier the Legislature did not write.

Did the Legislature ever limit things to the Eighty-first Legislature in this Act?
Yes, elsewhere. The opinion noted other parts of the same Act expressly tied appropriations to legislation by the Eighty-first Legislature, showing the Legislature knew how to add that limit when it wanted to.

Did the opinion decide whether the rail appropriation was triggered?
No. The opinion left to the Comptroller the factual question of whether the items produced the required net increase.

Background and statutory framework

Article IX, section 17.10(a) of the 2010-2011 General Appropriations Act allocates $91 million per year from the State Highway Fund to the Texas Rail Relocation and Improvement Fund for purposes authorized by Texas Constitution article III, section 49-o. General Appropriations Act, 81st Leg., R.S., ch. 1424, art. IX, § 17.10(a), 2009 Tex. Gen. Laws 4483, 5374. The allocation is contingent on a Comptroller finding that certain items, including "the net impact of enacted revenue measures" on State Highway Fund revenue not dedicated under Texas Constitution article VIII, section 7-a, produce a net increase of at least $182 million. Tex. Const. art. III, § 49-o; Tex. Const. art. VIII, § 7-a.

The Act did not define "enacted revenue measure." Courts do not insert additional words into a statute and presume the Legislature chooses its words carefully, including by purposefully excluding words it leaves out. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 552 (Tex. 1981); Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009); In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). In this context, a "measure" can refer to an existing statute or a legislative proposal such as a bill. Tex. Gov't Code Ann. § 572.059(a) (West 2004); Calvert v. McLemore, 358 S.W.2d 551, 552 (Tex. 1962); Hurt v. Cooper, 110 S.W.2d 896 (Tex. 1937).

Citations

Statutes:

• General Appropriations Act, 81st Leg., R.S., ch. 1424, art. IX, § 17.10(a), 2009 Tex. Gen. Laws 4483, 5374
• Tex. Const. art. III, § 49-o
• Tex. Const. art. VIII, § 7-a
• Tex. Gov't Code Ann. § 572.059(a) (West 2004)

Cases:

• Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 552 (Tex. 1981)
• Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009)
• In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)
• Calvert v. McLemore, 358 S.W.2d 551, 552 (Tex. 1962)
• Hurt v. Cooper, 110 S.W.2d 896 (Tex. 1937)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0852
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0852.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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.[1]

Article IX, section 17.10(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-o. See General Appropriations Act, 81st Leg., R.S., ch. 1424, art. IX, § 17.10(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." Id. § 17.10(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;

Id. § 17.10(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, § 17.10(b)(1). Request Letter, supra note 1, 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 17.10(b)(1) of the Act. Id. at 2. The Office of the Comptroller opines that the determination under section 17.10(b)(1) requires an analysis of net impact limited to enactments promulgated by the Eighty-first Legislature.[2] 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 1, 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 17.10(b)(1) 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 17.10(b)(1) of the Appropriations Act, regardless of when they were enacted.[4] Whether the items described in section 17.10(b) produce the "net increase" required for the appropriation in section 17.10(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, § 17.10(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).

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.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] 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].

[2] See Brief from Ashley Harden, General Counsel, Texas Comptroller of Public Accounts, at 1 (Nov. 8, 2009) (stating that "the Section 17.10(b)(1) 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].

[3] In this context, a "measure" can refer to an existing statute or to a legislative proposal such as a bill. See TEX. GOV'T CODE ANN. § 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. Att'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").

[4] The Office of the Comptroller states that it bases its construction of article IX, section 17.10(b)(1) consistently with judicial and administrative authorities that consider the meaning of "revenue measure." Comptroller's Brief at 1 (citing Hurt v. Cooper, 110 S.W.2d 896 (Tex. 1937); Tex. Att'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).