Can Texas force a county probation department to refund its locally collected fees to the state at the end of the biennium?

Plain-English summary

Texas community supervision and corrections departments, the probation departments that serve the courts in each judicial district, run on two streams of money. One is locally generated fees, paid by defendants under statutes like Government Code section 76.015 and Code of Criminal Procedure articles 102.012 and 42A.652-.653. The other is "state aid" the Legislature appropriates and routes through the Community Justice Assistance Division of the Texas Department of Criminal Justice (TDCJ-CJAD), which sets standards for and funds the departments under Government Code chapter 509. The Dallas County Auditor asked the AG whether TDCJ-CJAD may require a department to send back unspent local fees, together with unspent state funds, at the end of the two-year budget biennium.

The AG answered two questions. First, can locally generated fees count as "state aid"? No. The Legislature defined "state aid" in section 509.001(4)(A) as "funds appropriated by the legislature" to the division to assist the departments. Because courts must follow statutory definitions (Adams v. Starside Custom Builders; TGS-NOPEC Geophysical Co. v. Combs; Government Code section 311.011(b)), and a statute's plain language is the best guide to intent (Silguero v. CSL Plasma), the AG concluded that fees a department collects locally, rather than money appropriated by the Legislature, are not "state aid" under section 509.011.

Second, can TDCJ-CJAD require a department to remit some of its locally generated funds to the state's general revenue? No. Nothing in section 509.011 itself requires a department to refund money; the refund requirement comes from a budget rider, Rider 32 in the 2021-22 General Appropriations Act (article V, section V-13). That rider directs TDCJ to maintain procedures ensuring the state is refunded "all unexpended and unencumbered balances of state funds" held by the departments at the end of the biennium. By its plain terms it reaches only state funds. The AG added a structural point: a general appropriations act concerns money from the state treasury (Moore v. Shepherd), and a rider attached to such a bill cannot adopt, repeal, modify, or amend general law (Jessen Assocs., Inc. v. Bullock); to be valid it must relate to the appropriation of state treasury funds. So a court would likely conclude the rider does not authorize TDCJ-CJAD to make a department remit locally generated funds.

The AG noted that TDCJ-CJAD apparently uses a formula it describes as a "refund of state aid that is proportional to the amount of locally generated funds." To the extent that formula sweeps in funds other than state funds, the AG said it would be contrary to the rider, but the AG declined to opine on whether the formula itself conforms to state law, because the calculation turns on facts outside the scope of an AG opinion (citing GA-0353).

What this means for you

If you are a county auditor or run a probation department's finances

Based on this opinion, the locally generated fees your community supervision and corrections department collects are not "state aid," and the 2021-22 appropriations rider does not require you to remit those local funds to the state. The refund obligation in Rider 32 reaches only unexpended and unencumbered state funds. The AG did not bless or reject TDCJ-CJAD's specific refund formula, so disputes about how a particular formula treats local money were left open as fact questions.

If you work at TDCJ-CJAD or administer the state-aid program

The opinion reads your refund authority under the rider as limited to state funds. To the extent a refund formula characterized as a "refund of state aid proportional to local funds" actually pulls in non-state money, the AG said that would be contrary to the General Appropriations Act. The rider still gives the division discretion in the first instance to maintain procedures for refunding state funds.

If you are a county official budgeting for probation services

The opinion supports the view that local fee revenue collected by the department stays local and is not subject to the biennial state-funds refund. Counties also continue to supply the department's physical facilities, equipment, and utilities under section 76.008(a).

Common questions

Q: Are the fees a probation department collects locally considered "state aid"?
A: No. The AG concluded "state aid" in Government Code chapter 509 means funds appropriated by the Legislature, so locally generated fees do not fall within that defined term.

Q: Does the budget rider require returning unspent local fees to the state?
A: No. Rider 32 (article V, section V-13 of the 2021-22 General Appropriations Act) requires refunding only "unexpended and unencumbered balances of state funds." It does not reach locally generated funds.

Q: Why can't a budget rider just require returning the local money too?
A: The AG explained that a rider attached to a general appropriations act cannot adopt, repeal, modify, or amend general law and must relate to the appropriation of state treasury funds (Jessen Assocs., Inc. v. Bullock; Moore v. Shepherd). A rider requiring remittance of local funds would go beyond that.

Q: Did the AG approve TDCJ-CJAD's refund formula?
A: No. The AG declined to decide whether the formula conforms to state law, treating that as a fact question outside the opinion process, while noting that to the extent the formula captures non-state funds it would conflict with the rider.

Background and statutory framework

Community supervision and corrections departments serve the courts and counties by conducting pre-sentence investigations, supervising and rehabilitating defendants on community supervision, enforcing conditions, and staffing community corrections facilities (Government Code section 76.002(a)(1), (c); sections 76.001-.019). Their funding comes from locally generated fees (e.g., Government Code section 76.015; Code of Criminal Procedure articles 102.012, 42A.652, 42A.653) and from state aid, with the served county providing the department's physical facilities, equipment, and utilities (section 76.008(a)). The Community Justice Assistance Division of the Texas Department of Criminal Justice (TDCJ-CJAD) sets minimum standards and funds the departments (section 493.003), drawing in part on the Legislature's prison-diversion appropriation in the General Appropriations Act (article V, section V-5). Section 509.011 directs how TDCJ-CJAD pays those funds, on a per-capita basis and by a statutory allocation formula, to departments that meet its standards and submit an acceptable strategic plan (sections 509.011(a)-(d), 509.007; 37 Texas Administrative Code section 163.25).

The Legislature defined "state aid" in section 509.001(4)(A) as "funds appropriated by the legislature" to the division to assist the departments. Because courts must adhere to statutory definitions and a statute's plain language controls (Adams v. Starside Custom Builders; TGS-NOPEC Geophysical Co. v. Combs; Silguero v. CSL Plasma; Government Code section 311.011(b)), the AG concluded locally generated fees are not "state aid."

The refund obligation comes not from section 509.011 but from Rider 32 of the 2021-22 General Appropriations Act (article V, section V-13), which directs TDCJ to ensure the state is refunded "all unexpended and unencumbered balances of state funds" held by the departments at the close of the biennium (see also section 509.011(h), authorizing a department to return unencumbered state funds). General appropriations acts concern funds from the state treasury (Moore v. Shepherd), and a rider cannot adopt, repeal, modify, or amend general law and must relate to the appropriation of state treasury funds to be valid (Jessen Assocs., Inc. v. Bullock). Because the rider's plain language reaches only state funds, the AG concluded TDCJ-CJAD may not require a department to remit locally generated funds to general revenue, while declining, under GA-0353, to decide the fact-bound question whether TDCJ-CJAD's refund formula conforms to state law.

Citations and references

Statutes and appropriations:

• Tex. Gov't Code § 509.001 (defines "state aid" as funds appropriated by the Legislature) and § 509.011 (payment of state aid; return of unencumbered state funds)
• Tex. Gov't Code § 76.015 (department reimbursement fee) and § 76.008 (county provides facilities)
• General Appropriations Act, 2021-22 Biennium, 87th Leg., R.S., ch. 1053, art. V, § V-13 (Rider 32, refund of unexpended state funds)

Key cases:

• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (courts are bound by a statute's defined term)
• Silguero v. CSL Plasma, Inc., 579 S.W.3d 53 (Tex. 2019) (plain language is the most reliable guide to legislative intent)
• Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1975) (an appropriations-bill rider cannot modify general law and must relate to state treasury funds)
• Moore v. Shepherd, 192 S.W.2d 559 (Tex. 1946) (general appropriations acts concern funds from the state treasury)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0408
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0408.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

June 6, 2022

Mr. Darryl D. Thomas
Dallas County Auditor
1201 Elm Street
Dallas, Texas 75270

Opinion No. KP-0408

Re: Whether county community supervision and corrections departments must remit locally generated funds to the State as unexpended balances at the end of the biennium (RQ-0437-KP)

Dear Mr. Thomas:

You ask whether the agency that provides state funding to community supervision and corrections departments may require them to remit unspent locally generated funds, along with unspent state funds, at the end of the biennium.¹ Your question stems from Rider 32 of the General Appropriations Act for the 2021-22 biennium, which directs the Texas Department of Criminal Justice to "maintain procedures to ensure that the state is refunded all unexpended and unencumbered balances of state funds held" at the end of the biennium by the departments. General Appropriations Act, 2021-22 Biennium, 87th Leg., R.S., ch. 1053, art. V, § V-13, 2021 Tex. Gen. Laws 2805, 3378-79 (emphasis added). To understand your question, we first review the manner in which community supervision and corrections departments are funded.

¹ Letter and attachments from Mr. Darryl D. Thomas, Dallas Cnty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 29, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0437KP.pdf ("Request Letter" and "Attachments").

Community Supervision and Corrections Departments and the Community Justice Assistance Division

Community supervision and corrections departments ("departments") serve the courts and counties in judicial districts by conducting pre-sentence investigations of criminal defendants, supervising and rehabilitating defendants placed on community supervision, enforcing the conditions of community supervision, and staffing community corrections facilities. See TEX. GOV'T CODE § 76.002(a)(1), (c); see also id. §§ 76.001-.019. A department's funding comprises locally generated fees and state aid. See, e.g., id. § 76.015 (providing for reimbursement fee); TEX. CODE CRIM. PROC. arts. 102.012 (providing for reimbursement fee), 42A.652 (providing for reimbursement fee), 42A.653 (providing for additional monthly fee from certain defendants); TEX. GOV'T CODE § 509.011 (providing for payment of state aid). Additionally, the county or counties served by a department provide the department's "physical facilities, equipment, and utilities." Id. § 76.008(a).

The Community Justice Assistance Division, a division of the Texas Department of Criminal Justice ("TDCJ-CJAD"), sets minimum standards and provides funding for departments. Id. § 493.003 (requiring the TDCJ-CJAD to fund and to establish minimum standards for programs, facilities, and services provided by departments). Part of the TDCJ-CJAD's funding comes from the Legislature's appropriation in the General Appropriations Act to the Department of Criminal Justice for prison diversions. See generally General Appropriations Act, 2021-22 Biennium, 87th Leg., R.S., ch. 1053, art. V, § V-5, 2021 Tex. Gen. Laws 2805, 3370 (Goal A, V-5—"Provide Prison Diversions through Probation & Community-based Programs"). Government Code section 509.011 directs TDCJ-CJAD's payment of those funds to the departments. See TEX. GOV'T CODE § 509.011.

Texas Government Code Section 509.011

Section 509.011 authorizes the TDCJ-CJAD to pay funds to departments that comply with TDCJ-CJAD standards and that submit a strategic plan.² See id. § 509.011(a); see also id. § 509.001(3) (defining "division" to mean the Community Justice Assistance Division). If the TDCJ-CJAD determines a department complies with its standards and submits an acceptable strategic plan, the TDCJ-CJAD "shall prepare and submit to the comptroller vouchers for payment to the department" with respect to two types of funding: (1) funding on a per capita basis with respect to supervised felony defendants and supervised non-felony defendants; and (2) funding of an annual amount computed through a statutorily specified allocation formula. Id. § 509.011(a)(1)-(3). Subsection 509.011(b) also authorizes the TDCJ-CJAD to make certain discretionary grants to departments. See id. § 509.011(b). Subsection 509.011(d) requires the TDCJ-CJAD to pay these funds, referred to as "state aid," to "each department on a biennial basis, pursuant to the strategic plan for the biennium." Id.

² Section 509.007 provides that the TDCJ-CJAD shall require a department to submit a strategic plan "as a condition to payment of state aid." TEX. GOV'T CODE § 509.007(a); see also id. § 509.007(b) (enumerating required contents of strategic plan); 37 TEX. ADMIN. CODE § 163.25 (providing for contents of strategic plan).

Meaning of State Aid

With this background in mind, your first question is whether "locally generated fees [can] be considered 'state-aid.'" Request Letter at 1, 4-6. The Legislature defined the term "state aid" in chapter 509, so we use that definition. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018) (recognizing that courts "must adhere to statutory definitions") (citing TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) ("If a statute uses a term with a particular meaning or assigns a particular meaning to a term, we are bound by the statutory usage.")); TEX. GOV'T CODE § 311.011(b) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). "State aid" means, in relevant part,

funds appropriated by the legislature to the division to provide financial assistance to:

(A) the judges described by Section 76.002 for:

(i) a department established by the judges;

(ii) the development and improvement of community supervision services and community-based correctional programs;

(iii) the establishment and operation of community corrections facilities; and

(iv) assistance in conforming with standards and policies of the [CJAD and the Board of Criminal Justice].

TEX. GOV'T CODE § 509.001(4)(A) (emphasis added). As defined by the Legislature, the term "state aid" includes only "funds appropriated by the legislature," i.e., the money the Legislature appropriates, usually in the General Appropriations Act. See id.; see also Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019) (acknowledging that "[a] statute's plain language is the most reliable guide to the Legislature's intent"). To the extent the local funds a department receives come from fees required by statute, and not from an appropriation by the Legislature, a court would likely conclude the term "state aid" in section 509.011 does not include a department's locally generated funds. See, e.g., TEX. GOV'T CODE § 76.015; TEX. CODE CRIM. PROC. arts. 102.012, 42A.652-.653.

With this conclusion, we consider your second question whether the TDCJ-CJAD can require a department to remit a portion of locally generated funds to the State for general revenue at the end of the biennium. See Request Letter at 1.

Refund of State Funds

No language in section 509.011 mandates a department's refund of state funds to the TDCJ-CJAD. See generally TEX. GOV'T CODE § 509.011. Instead, that requirement comes from the General Appropriations Act rider. As noted previously, the rider requires the TDCJ to "maintain procedures to ensure that the State is refunded all unexpended and unencumbered balances of state funds held as of the close of this biennium by local community supervision and corrections departments (CSCDs)." General Appropriations Act, 2021-22 Biennium, 87th Leg., R.S., ch. 1053, art. V, § V-13, 2021 Tex. Gen. Laws 2805, 3378-79 (emphasis added); see also TEX. GOV'T CODE § 509.011(h) (authorizing a department to return unencumbered state funds held by the department). By its plain language, the rider expressly requires the refund of only state funds. See General Appropriations Act, 2021-22 Biennium, 87th Leg., R.S., ch. 1053, art. V, § V-13, 2021 Tex. Gen. Laws 2805, 3378-79. General appropriations acts concern the appropriation of funds from the state treasury. See Moore v. Shepherd, 192 S.W.2d 559, 562 (Tex. 1946). A rider attached to a general appropriation bill cannot adopt, repeal, modify, or amend an existing general law. See Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 599-600 (Tex. 1975). Thus, to be valid a rider must relate to the appropriation of state treasury funds. See id. Moreover, the rider does not expressly require a department to remit locally generated funds. See General Appropriations Act, 2021-22 Biennium, 87th Leg., R.S., ch. 1053, art. V, § V-13, 2021 Tex. Gen. Laws 2805, 3378-79. Accordingly, a court would likely conclude the rider does not authorize the TDCJ-CJAD to require a department to remit locally generated funds to the State's general revenue.³

³ We understand the TDCJ-CJAD uses a formula to determine the amount to be remitted by each department. See Request Letter, Attachment 4 (Letter from Kristen Worman, Gen. Counsel, TDCJ, to Sheila Gladstone, Lloyd Gosselink at 3 (Aug. 19, 2021)). The TDCJ-CJAD characterizes this formula as providing a "refund of state aid that is proportional to the amount of locally generated funds." Id. To the extent the formula results in a remitted amount that includes funds other than state funds, it is contrary to the requirement in the General Appropriations Act. However, the General Appropriations Act gives the TDCJ-CJAD the discretion in the first instance to "maintain procedures" for the refund of state funds. See General Appropriations Act, 2021-22 Biennium, 87th Leg., R.S., ch. 1053, art. V, § V-13, 2021 Tex. Gen. Laws 2805, 3378-79. Because of this discretion and because the calculation of this formula involves consideration of facts outside the purview of an Attorney General opinion, we do not opine on the question whether the formula conforms with state law. See Tex. Att'y Gen. Op. No. GA-0353 (2005) at 5 (acknowledging that the opinion process does not address fact questions).

S U M M A R Y

Chapter 509 of the Government Code governing community supervision and corrections departments defines "state aid" as funds appropriated by the Legislature to the Community Justice Assistance Division of the Texas Department of Criminal Justice to provide assistance to the departments. The term does not include funds locally collected and maintained by a department.

A rider in the General Appropriations Act for the 2021-22 biennium directs the Texas Department of Criminal Justice to require the refund of unexpended and unencumbered state funds from community supervision and corrections departments. Nothing in the rider's language authorizes the Texas Department of Criminal Justice to require the remittance of locally generated funds.

Accordingly, a court would likely conclude the Texas Department of Criminal Justice's Community Justice Assistance Division may not require a department to remit locally generated funds to the State's general revenue.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee