Who collects old unpaid Texas 911 emergency service fees, the Comptroller or the 911 Commission?

Plain-English summary

The Comptroller and the Executive Director of the Commission on State Emergency Communications jointly asked the Attorney General which of their offices may collect a telecommunications provider's delinquent 9-1-1 emergency service fees and surcharges from 1992 to 1997. The question arose because House Bill 1983, effective September 1, 1999, moved the duty to collect past-due 9-1-1 fees from the Commission to the Comptroller. The dispute was whether the old or the new law applied to fees that came due years earlier but had not yet produced a formal collection case.

The Attorney General concluded that, unless a contested case to collect the fees had been filed before the Act's effective date, the House Bill 1983 amendments govern and the Comptroller, not the Commission, has the collection authority. The analysis turned on the bill's savings clause and on the meaning of the word "action." The first sentence of the relevant subsection applies the new law to "an action taken on or after" the effective date; the second sentence preserves the old law where "an action was initiated before" that date. Reading "taken" as the general sense (conduct or deed) and "initiated" as a term of art for a formal proceeding, the opinion concluded the second sentence reaches only formal contested cases begun before the effective date.

To pin down what "initiated" required, the opinion looked to the Commission's administrative rules in force when House Bill 1983 passed. Those rules (1 Texas Administrative Code chapter 253) set up informal procedures (a reconciliation conference and a staff recommendation under section 253.3) and formal contested cases (sections 253.4 through 253.30). A contested case was formally commenced only when staff or another authorized person filed a request to docket the case under section 253.4, file-marked by the hearings clerk. Taking the facts in the request as true, the opinion assumed the provider had requested a hearing under section 253.3 but that no request to docket was filed under section 253.4 before September 1, 1999. With no contested case filed before the effective date, the old law was not preserved, so the new law applies and the Comptroller is the agency authorized to collect the fees in a contested case filed after that date. Because a provider brief suggested a different version of the facts, the opinion stressed it could not resolve factual disputes and answered on the assumed facts.

Currency note

This opinion was issued in 2000. 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 (what the opinion held): The opinion held that the Comptroller is the agency authorized to collect the delinquent 1992-1997 9-1-1 fees, by way of a contested case filed after the September 1, 1999 effective date, so long as no contested case had been filed before that date.

The Commission on State Emergency Communications (what the opinion held): The opinion held that the Commission retains collection authority only for a fee whose contested case was formally docketed under section 253.4 before the effective date; informal discussions and a provider's hearing request did not amount to an "action initiated" that preserves the old law.

The telecommunications provider (what the opinion held for it): The opinion held that, on the assumed facts, the provider's matter would proceed under the new law before the Comptroller, while noting the office could not resolve the factual dispute about whether a contested case had in fact been initiated.

Common questions

A Texas 911 fee went unpaid years before the law changed. Who collects it now?
The opinion concluded the Comptroller collects it under House Bill 1983, unless a contested case to collect that fee was already filed before the September 1, 1999 effective date.

Did the Commission's informal talks with the provider lock in the old law?
No. The opinion concluded the savings clause preserves the old law only when a formal contested case was initiated before the effective date, and informal discussions plus a hearing request were not enough.

What counts as a contested case being "initiated"?
The opinion concluded a contested case was initiated only when a request to docket the case was filed and file-marked under section 253.4 of the Commission's rules, not at the earlier reconciliation-conference or hearing-request stage.

Why couldn't the Attorney General just say which agency wins?
The opinion explained the answer depended on a disputed fact (whether a contested case had been docketed), and the office does not make fact findings, so it answered on the facts stated in the request.

Background and statutory framework

Subchapter D of chapter 771 of the Health and Safety Code finances state emergency communications through 9-1-1 fees and surcharges that service providers collect from customers and deliver to the Commission (sections 771.071-.079), used only for 9-1-1 service as approved by the Commission (section 771.075). As amended in 1999, the Commission notifies the Comptroller of audit-warranting irregularities (section 771.076(a)), and the Comptroller establishes collection procedures, sets up notice procedures, and may assess a late penalty up to $100 per day after notice and a hearing (section 771.077(a)-(c)). Before September 1, 1999, the Commission collected past-due fees (Act of May 25, 1995, ch. 638, § 7).

House Bill 1983 (Act of May 30, 1999, ch. 1405) transferred collection to the Comptroller and included a three-part savings clause (section 37). The opinion read the collection subsection's word "action" using the Code Construction Act's direction to construe words by context and common or technical usage (Government Code section 311.011). "Action . . . taken" used the general sense (conduct or deed), while "action . . . initiated" used the technical sense of a formal proceeding (Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995); Bradley v. Etessam, 703 S.W.2d 237, 241 (Tex. App.—Dallas 1985, writ ref'd n.r.e.)). Looking to the Commission's rules in effect at enactment (1 Texas Administrative Code chapter 253; section 253.1(g)), the opinion identified informal procedures under section 253.3 (reconciliation conference, staff recommendation, hearing request) and formal contested cases under sections 253.4 through 253.30, with jurisdiction attaching only on a filed, file-marked request to docket under section 253.4. Applying section 311.023's permission to consider the circumstances of enactment and administrative construction, it concluded the preserved category is a contested case docketed under section 253.4 before the effective date. On the assumed facts (a section 253.3 hearing request but no section 253.4 docketing), prior law was not preserved, so the Comptroller collects under the new law (citing JC-0020 (1999), M-187 (1968), and O-2911 (1940) on the office not finding facts).

Citations

Statutory and regulatory provisions:

• Tex. Health & Safety Code Ann. §§ 771.071-.079, 771.075, 771.076(a), 771.077(a)-(c) (Vernon Supp. 2000)
• Act of May 30, 1999, 76th Leg., R.S., ch. 1405, §§ 1, 29, 35, 37, 37(b), 38, 1999 Tex. Gen. Laws 4739 (House Bill 1983); Act of May 25, 1995, 74th Leg., R.S., ch. 638, § 7, 1995 Tex. Gen. Laws 3507
• Tex. Gov't Code Ann. §§ 311.011, 311.023 (Vernon 1998)
• 1 Tex. Admin. Code ch. 253, §§ 253.1(g), 253.3, 253.4, 253.8 (2000)

Cases and prior opinions:

• Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995)
• Bradley v. Etessam, 703 S.W.2d 237 (Tex. App.—Dallas 1985, writ ref'd n.r.e.)
• Tex. Att'y Gen. Op. Nos. JC-0020 (1999), M-187 (1968), O-2911 (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0284
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0284.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

September 19, 2000

The Honorable Carole Keeton Rylander
Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528

Mr. James D. Goerke, Executive Director
Commission on State Emergency Communications
333 Guadalupe Street, Suite 2-212
Austin, Texas 78701-3942

Opinion No. JC-0284

Re: Whether the Commission on State Emergency Communications or the Comptroller is authorized to collect from a telecommunications service provider delinquent 9-1-1 emergency service fees and surcharges dating from 1992 to 1997 (RQ-0229-JC)

Dear Comptroller Rylander and Mr. Goerke:

You jointly ask whether the Commission on State Emergency Communications or the Comptroller has the authority to collect from a telecommunications service provider delinquent 9-1-1 emergency service fees and surcharges dating from 1992 to 1997. Your question arises because House Bill 1983 (or "the Act")[1] shifted the duty to collect such fees and surcharges from the former Advisory Commission on State Emergency Communications (which it renamed the Commission on State Emergency Communications (the "Commission")),[2] to the Comptroller,[3] effective September 1, 1999.[4] Based on the House Bill 1983 savings clause and the administrative rules in effect at the time of House Bill 1983's enactment, we conclude that unless a contested case regarding the collection of the fees at issue was filed prior to the Act's effective date, the House Bill 1983 amendments will govern, and the Comptroller rather than the Commission will have the authority to collect the fees.

We begin with a brief review of the statutory scheme governing fee collection generally. Subchapter D of Chapter 771 of the Health and Safety Code provides for the financing of state emergency communications with 9-1-1 emergency service fees and other surcharges that telecommunications service providers are required to collect from their customers and deliver to the Commission. See TEX. HEALTH & SAFETY CODE ANN. §§ 771.071-.079 (Vernon Supp. 2000). These fees are used, as a general matter, "only for planning, development, provision, and enhancement of the effectiveness of 9-1-1 service" as approved by the Commission. See id. § 771.075.

Your question concerns the collection of delinquent fees and surcharges from service providers. Under chapter 771 as amended in 1999, the Commission notifies the Comptroller of "any irregularity that may indicate that an audit of a service provider collecting a fee or surcharge under this subchapter is warranted." Id. § 771.076(a). The Comptroller is also charged with collecting past due amounts from service providers. Section 771.077 provides in pertinent part as follows:

(a) The comptroller by rule shall establish collection procedures to collect past due amounts and recover the costs of collection from a service provider or business service user that fails to timely deliver the fees and the equalization surcharge to the commission.

(b) The comptroller by rule shall establish procedures to be used by the commission to notify the comptroller of a service provider's or business service user's failure to timely deliver the fees or surcharges.

(c) In addition to amounts collected under Subsection (a), after notice and an opportunity for a hearing, the comptroller may assess a late penalty against a service provider who fails to timely deliver the fees or surcharges. The late penalty is in an amount not to exceed $100 a day for each day that the fees or surcharges are late.

Id. § 771.077(a)-(c). Prior to September 1, 1999, past due fees were collected by the Commission. See Act of May 25, 1995, 74th Leg., R.S., ch. 638, § 7, 1995 Tex. Gen. Laws 3507, 3509.

House Bill 1983, the bill that shifted collection of past due fees and surcharges from the Commission to the Comptroller, contained the following savings provision:

(a) The changes in law made by this Act regarding the date of payment of a fee or surcharge under Chapter 771, Health and Safety Code, as amended by this Act, apply only to a fee or surcharge collected on or after the effective date of this Act. A fee or surcharge that is collected before the effective date of this Act is due on the date the payment would have been due under the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

(b) The changes in law made by this Act regarding the collection of fees, surcharges, or associated penalties apply only to an action taken on or after the effective date of this Act. The collection of a fee, surcharge, or associated penalty for which an action was initiated before the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

(c) The changes in law made by this Act regarding the disposition of a fee, surcharge, or associated penalty collected under Chapter 771, Health and Safety Code, as amended by this Act, and the amount a service provider may retain as an administrative fee apply only to a fee, surcharge, or penalty collected on or after the effective date of this Act. The disposition of a fee, surcharge, or associated penalty that was collected before the effective date of this Act and the amount a service provider may retain as an administrative fee are governed by the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

Act of May 30, 1999, 76th Leg., R.S., ch. 1405, § 37, 1999 Tex. Gen. Laws 4739, 4752 (emphasis added).

Subsection (b) of the savings provision, which deals with which law to apply regarding collection of fees, governs your query, and we believe the crucial term in that provision is the word "action." The Code Construction Act provides that words are to be read in context and construed according to the rules of grammar and common usage, and words with a technical meaning are to be construed according to that meaning. See TEX. GOV'T CODE ANN. § 311.011 (Vernon 1998). In its common usage, "action" can be interpreted to mean "conduct" or "deed," I OXFORD ENGLISH DICTIONARY 127 (2d ed. 1989), but it also has the technical meaning of "legal process or suit," id. at 128; see also Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995) ("The term 'action' is generally synonymous with 'suit,' which is a demand of one's rights in court."); Bradley v. Etessam, 703 S.W.2d 237, 241 (Tex. App.—Dallas 1985, writ ref'd n.r.e.). The phrase "an action" in the first sentence of subsection (b) of this savings provision is said to be "taken," suggesting that the word "action" is being used in its common, more general sense. By contrast, in the second sentence, "an action" is said to be "initiated," a term of art suggesting that here the word has the more technical meaning. See VII OXFORD ENGLISH DICTIONARY 977 (2d ed. 1989) (defining "initiated" to mean "[c]ommenced; originated"). We therefore believe that the word "action" in the first sentence of the savings provision incorporates both conduct generally and more formal proceedings, whereas the word "action" in the second sentence is limited only to more formal proceedings.

Your query involves the following situation: In 1998, the Commission notified a service provider that an audit had revealed that the provider was past due on payment to the Commission of emergency service fees it collected from customers in 1992 to 1997. "The Commission initiated informal discussions with the provider in 1998 regarding the delinquency, and in the course of these conversations the provider indicated that it wished to avail itself of the hearing procedure."[5] However, the statute was amended, and the authority to collect past due fees was transferred from the Commission to the Comptroller, "before any pleadings were filed or any formal contested case procedure was initiated." Request Letter, note 5, at 2. You ask "which agency now has the authority to initiate formal, contested case collection efforts against the provider." Id.

To definitively construe the savings clause in light of this factual situation, we examine the administrative rules in effect at the time of House Bill 1983's enactment. Prior to September 1, 1999, the Commission was authorized under section 771.077 to establish procedures to collect past due amounts and recover the costs of collection from a service provider. See Act of May 25, 1995, 74th Leg., R.S., ch. 638, § 7, 1995 Tex. Gen. Laws 3507, 3511. The Commission adopted rules to establish collection and hearing procedures pursuant to this provision. See 1 TEX. ADMIN. CODE ch. 253 (2000); see id. § 253.1(g) ("These rules establish collection and hearing procedures pursuant to Texas Health and Safety Code, § 771.077."). Those rules provided for collection by informal procedures as well as by formal contested cases. See id. §§ 253.3 (informal procedures), 253.4-.30 (contested cases). The rule on informal procedures, section 253.3, provided that a service provider that disagreed with an initial written staff determination regarding untimely delivery of 9-1-1 emergency service fees or surcharges could request a "reconciliation conference with the staff." Id. § 253.3(a). After the reconciliation conference, or if no reconciliation conference was requested, the staff was required to "notify the service provider . . . in writing of its recommendation to the commission on the matter." Id. A service provider that disputed any part of the staff's recommendation was required to request a hearing within thirty days after receipt of the staff's recommendation. See id. § 253.3(c). The request had to comport with the following requirements:

The request for a hearing must be in writing and must include a statement of grounds that sets out in detail the reasons the service provider or business service user does not agree with the staff's recommendation. Legal authority must be cited if the service provider or business service user disagrees with the staff's interpretation of the law.

Id. Upon receiving a request for a hearing, staff was required "to proceed to formal contested case proceedings, unless the staff determines that further settlement discussions with the service provider or business service user are warranted." Id. In the event that the service provider failed to timely respond to staff's recommendation, the rule authorized "staff [to] begin to proceed to formal contested case proceedings." Id. § 253.3(d).

Another Commission rule, section 253.4, provided that "[t]he administrative law judge acquires jurisdiction over a contested case when the staff of the agency, or any person authorized by statute, files a request to docket a case in the form prescribed by the administrative hearings clerk, and in accordance with § 253.8 of this title (relating to Filings)." Id. § 253.4(a). Under the rule, a request to docket a case was considered filed "when the request to docket is received and file-marked by the administrative hearings clerk." Id. § 253.4(b).

Again, the pertinent subsection of the House Bill 1983 savings clause provides that "the changes in law made by this Act regarding the collection of fees, surcharges, or associated penalties apply only to an action taken on or after the effective date of this Act," and that the "collection of a fee, surcharge, or associated penalty for which an action was initiated before the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose."[6] As we have explained, we construe the word "action" in the first sentence of the savings clause to refer generally to conduct or deeds and the phrase "action . . . initiated" in the second sentence to refer more specifically to formal proceedings. See discussion supra p. 3. Given the Commission rules, which were in effect at the time House Bill 1983 was enacted, we further conclude that the word "action" in the second sentence refers to a contested case provided for in the Commission rules. In addition, we conclude that such an action may be said to have been initiated only pursuant to section 253.4 of the Commission rules, which established the formal mechanism for commencing a contested case. See TEX. GOV'T CODE ANN. § 311.023 (Vernon 1998) ("In construing a statute . . . a court may consider . . . circumstances under which the statute was enacted [and] . . . administrative construction of the statute").

In sum, the first sentence of the savings provision mandates the application of the House Bill 1983 amendments to all actions taken after the Act's effective date, both informal conduct and newly-initiated formal proceedings. The second sentence of subsection (b) preserves prior law only for contested cases filed prior to House Bill 1983's effective date. We gather from the facts asserted in your request that the service provider at issue requested a hearing under section 253.3, but that no request to docket a case was filed as provided by section 253.4. See Request Letter, supra note 5, at 2. On the other hand, a brief submitted by the telecommunications service provider suggests a slightly different interpretation of the facts.[7] Because this office cannot make fact findings and is not equipped to resolve factual disputes,[8] we take the facts asserted in the request letter as true and assume that a contested case was not filed under section 253.4 prior to House Bill 1983's effective date, September 1, 1999. Assuming that no contested case was filed prior to the Act's effective date, prior law is not preserved with respect to collection of the fees at issue. The changes in law made by House Bill 1983 regarding the collection of fees and surcharges will apply to a contested case filed after September 1, 1999 to collect those fees. The Comptroller rather than the Commission is authorized to collect the fees in such an action.

SUMMARY

The Comptroller rather than the Commission on State Emergency Communications has the authority to collect from a telecommunications service provider delinquent 9-1-1 emergency service fees and surcharges dating from 1992 to 1997 if no contested case regarding the collection of the fees was filed prior to the effective date of House Bill 1983.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee

[1] See Act of May 30, 1999, 76th Leg., R.S., ch. 1405, 1999 Tex. Gen. Laws 4739.

[2] See id. §§ 1, 35 at 4739, 4752.

[3] See id. § 29 at 4749-50.

[4] See id. § 38 at 4752.

[5] Letter from Mr. James D. Goerke, Executive Director, Commission on State Emergency Communications, to Honorable John Cornyn, Texas Attorney General at 2 (May 4, 2000) (on file with Opinion Committee) [hereinafter Request Letter].

[6] Act of May 30, 1999, 76th Leg., R.S., ch. 1405, § 37(b), 1999 Tex. Gen. Laws 4739, 4752.

[7] See Brief from Mr. Anthony M. Whalen, State Tax Counsel, Sprint, to Opinion Committee, Office of the Attorney General (Aug. 18, 2000) (on file with Opinion Committee).

[8] See Tex. Att'y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process); M-187 (1968) at 3 ("[T]his office is without authority to make . . . factual determinations."); O-2911 (1940) at 2 ("[T]his presents a fact question which we are unable to answer.").