ATTORNEY GENERAL OF TEXAS GREG ABBOTT

December 11, 2008

The Honorable Susan Combs Texas Comptroller ofPublic Accounts Post Office Box 13528 Austin, Texas 78711-3528

Dear Comptroller Combs: Opinion No. GA-0686 Re: Whetherthe Comptroller's reportrequired by Tax Code sections 313.008 and 313.032 mustbe limited to the items listed therein and exclude informationthat is marked as "confidential" (RQ-0727-GA)

In 2001, the Legislature adoptedthe Texas Economic DevelopmentAct (the "Act"). See Act ofMay 24, 2001, 77th Leg., R.S., ch. 1505, § 1, 2001 Tex. Gen. Laws 5362, 5362-72 (codified as Tax Code chapter 313). The Act authorizes a school district to limit the appraised value of a propertyforthe maintenance andoperationsportionof the school districtpropertytax. See generally TEX. TAX CODEANN. ch. 313 (Vernon 2008). The limitation is set out in an agreementbetweenthe school district and the person receiving the appraised value limitation. See 

### ide § 313.027. In 2007, the Legislature enacted legislation that, in relevant part, requires the Office ofthe ComptrollerofPublic Accounts (the "Comptroller") to prepare abiennial report! for the Legislature regarding the progress ofvalue limitation agreements entered into pursuant to the Act. See Act of May 25,2007, 80th Leg., R.S., ch. 1270, § 6, 2007 Tex. Gen. Laws 4249, 4252 (codified as Tax Code section 313.008); Act ofMay 28, 2007, 80th Leg., R.S., ch. 939, 

### § 17, 2007 Tex. Gen. Laws 3241,3246 (codified as Tax Code section 313.008); Act ofMay 25,2007, 80thLeg., R.S., ch. 1262, § 6, 2007 Tex. Gen. Laws 4225, 4227 (codified as Tax Code section 313.032). The reporting requirements are contained in sections 313.008 and 313.032 ofthe Tax Code. TEX. TAXCODEANN. §§ 313.008(a), .032(a) (Vernon 2008). Both sections provide that "[t]he report must be based on data certifiedto the comptrollerby eachrecipient ofa limitation on appraised value

... and state for

lIt appears from your request, which consistently refers to the reports required under sections 313.008 and 313.032 ofthe Tax Code inthe singular, thatthe Comptrollerproduces one reportinresponse to the requirements under these two statutes. See Request Letter at 1-3 (available at http://www.texasattomeygeneral.gov). We similarly refer to a single report in our discussion.The Honorable Susan Combs

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each [limitation] agreement" eleven specified items of information. 2 Id. The eleven items of information set out in sections 313.008 and 313.032 are almost identical. Id. You ask the following questions about this report: 1) Whether the Comptroller's report is limited to the 11 items listed in Sections 313.008(a) and 313.032(a)? 2) Whether the Comptroller may use in the report information provided by· recipients of limitation on appraised value agreements, regardless ofwhetherthe information was marked as confidential by the recipients? Request Letter at 1. 

### I. Applicable Law Your questions raise issues of statutory construction. In construing a statute, we must ascertain the Legislature's intent in enacting the statute. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We look "first and foremost" to the statutory language in understanding that intent. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We may also consider legislative history in construing a statute. TEX. GOV'T CODE ANN. 

### § 311.023(3) (Vernon 2005). Your questions also involve determinations regarding the Comptroller's powers. While the Texas Constitution defines some of the Comptroller's functions and duties, much of the Comptroller's authority is specified by the Legislature. See TEX. CONST. art. IV, § 23 (requiring the Comptrollerto "perform such duties as are ormaybe required by law"). The Comptroller's express statutory authority carries with it implied authority reasonably necessary to carry out the statute's purpose. See Bullockv. Calvert, 480 S.W.2d 367,372 (Tex. 1972) ("every specific, permissible act of a public officer need not be expressed in a statute; we imply the authority to do those acts necessary to achieve the power or object expressly granted"); Tex. Att'y Gen. Ope No. GA-0427 (2006) at 2; see also Tex. Mun. PowerAgency v. Pub. Utile Comm 'n, 253 S.W.3d 184, 193 (Tex. 2007) ("when the Legislature expressly confers apower on an agency, it also impliedly intends that the agencyhave whateverpowers are reasonablynecessaryto fulfill its express functions orduties").

2Section 313.031 requires the Comptroller to "adopt rules and forms necessary" to implement and administer chapter 313. TEX. TAX CODE ANN. § 313.031(a) (Vernon 2008). The only rule we find relevant to the questions presentedprovides that "[r]ecipients ofproperty value limitations shall promptly submitto the comptroller information that is requiredto complete the comptroller's biennial report assessing the progress ofeach agreement. The comptroller willpromulgate aform onwhichtherequired information shallbe submitted." 34 TEX. ADMIN. CODE § 9.1 057(a) (2008) (Tex. Comptroller ofPub. Accounts, Recommendation, Evaluation, and Reports by Comptroller).The Honorable Susan Combs

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### II. 

### Analysis (GA-0686)

Neither section 313.008 nor 313.032, which contain the required content of the report, expressly indicate that the list ofeleven items is intended to be exclusive in nature. And we find nothing in the legislative history suggesting that the list is intended to be exclusive. Insofar as the list ofitems in sections 313.008 and 313.032 does not provide the information necessary for the Comptroller to prepare "a report assessing the progress of each agreement," we conclude the Comptroller may include in the report additional information that is reasonably necessary to fulfill the Comptroller's statutory obligation ofpreparing such a report. See Bullock, 480 S.W.2d at 372. In sum, because ofthe lack ofany limiting language in sections 313.008 and 313.032 andthe Comptroller's implied authority, we conclude that the Comptroller is notprecluded from including more information in the report than is required by sections 313.008 and 313.032. This additional informationmust, however, be reasonablynecessaryto fulfill the Comptroller's statutory obligation ofproviding areportthat assesses the progress oflimitation agreements underthe Act. See ide And in no instance may the report include "information that is confidential by law" as expressly prohibited by sections 313.008 and 313.032. See TEX. TAX CODE ANN. §§ 313.008(b), .032(b) (Vemon 2008). The statutoryprohibitionagainstthe inclusionofconfidential informationinthereportbrings us to your second question-"[w]hetherthe Comptrollermayuse inthe reportinformationprovided byrecipients oflimitationonappraisedvalue agreements" if thoserecipients markedthe information as confidential. Request Letter at 1. Sections 313 .008(b) and 313 .032(b) prohibitthe Comptroller from including in the report information that is confidential by law, not information that is marked as confidential by arecipient ofa limitation. TEX. TAX CODEANN. §§ 313 .008(b), .032(b) (Vernon 2008). We conclude, therefore, that the express terms ofthe statutory provisions prohibitonly the inclusion ofinformation which is confidential by law, a determination that the statutes implicitly leave to the Comptroller in the first instance.The Honorable Susan Combs

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### SUMMARY In preparing the report on limitation agreements under the Texas Economic Development Act, the Comptroller of Public Accounts may include more information than is required by sections 313.008 and 313.032 ofthe Tax Code if the informationis reasonably necessary to assess the progress ofsuch agreements. The Comptroller may use in the report information provided by recipients oflimitations, regardless ofwhether the information is marked as confidential by the recipients, so long as the information ,is not confidential by law. The Comptroller must, in the first instance, determine whether information is confidential by law.

ANDREW WEBER First Assistant Attorney General JONATHAN K. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Christy Drake-Adams Assistant Attorney General, Opinion Committee