ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 11, 2008

The Honorable Susan Combs

Texas Comptroller of Public Accounts

Post Office Box 13528

Austin, Texas 78711-3528

Dear Comptroller Combs:

Opinion No. GA-0686

Re: Whether the Comptroller's report required by Tax

Code sections 313.008 and 313.032 must be limited to

the items listed therein and exclude information that is

marked as "confidential" (RQ-0727-GA)

In 2001, the Legislature adopted the Texas Economic Development Act (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

property for the maintenance and operations portion ofthe school district property tax. See generally

TEX. TAX CODE ANN. ch. 313 (Vernon 2008). The limitation is set out in an agreement between the

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

Comptroller ofPublic Accounts (the "Comptroller") to prepare a biennial report! for the Legislature

regarding the progress of value 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, 80th Leg., 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. TAX CODE ANN.

§§ 313.008(a), .032(a) (Vernon 2008). Both sections provide that "[t]he report must be based on

data certified to the comptroller by each recipient 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 in the singular, that the Comptroller produces one report in response 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 - Page 2 (GA-0686)

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 ofwhether the 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

Comptroller to "perform such duties as are or may be 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. Power Agency v. Pub. Utile Comm 'n, 253 S.W.3d 184, 193 (Tex.

2007) ("when the Legislature expressly confers a power on an agency, it also impliedly intends that

the agency have whatever powers are reasonably necessary to fulfill its express functions or duties").

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

presented provides that "[r]ecipients ofproperty value limitations shall promptly submit to the comptroller information

that is required to complete the comptroller's biennial report assessing the progress ofeach agreement. The comptroller

will promulgate a form on which the required information shall be submitted." 34 TEX. ADMIN. CODE § 9.1 057(a) (2008)

(Tex. Comptroller ofPub. Accounts, Recommendation, Evaluation, and Reports by Comptroller).
The Honorable Susan Combs - Page 3

II. Analysis

(GA-0686)

Neither section 313.008 nor 313.032, which contain the required content of the report,

expressly indicate that the list of eleven 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 of items 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 and the

Comptroller's implied authority, we conclude that the Comptroller is not precluded from including

more information in the report than is required by sections 313.008 and 313.032. This additional

information must, however, be reasonably necessary to fulfill the Comptroller's statutory obligation

ofproviding a report that assesses the progress oflimitation agreements under the 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 statutoryprohibition againstthe inclusion ofconfidential information inthe report brings

us to your second question-"[w]hether the Comptroller may use in the report information provided

by recipients oflimitation on appraised value agreements" ifthose recipients markedthe information

as confidential. Request Letter at 1. Sections 313.008(b) and 313.032(b) prohibit the Comptroller

from including in the report information that is confidential by law, not information that is marked

as confidential by a recipient ofa limitation. TEX. TAX CODE ANN. §§ 313.008(b), .032(b) (Vernon

2008). We conclude, therefore, that the express terms ofthe statutory provisions prohibit only the

inclusion of information which is confidential by law, a determination that the statutes implicitly

leave to the Comptroller in the first instance.
The Honorable Susan Combs - Page 4 (GA-0686)

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 ifthe information isreasonably

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