ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September 14,2006 

The Honorable Robert Duncan 

Chair, Committee on State Affairs 

Texas State Senate 

Post Office Box 12068 

Austin, Texas 7871 l-2068 

Opinion No. GA-0455 

Re: Whether Government Code section 2306.6710, 

which requires the Texas Department of Housing and 

Community Affairs to score and rank low-income 

housing tax-credit applications according to statutorily 

specified criteria, violates Texas Constitution article II, 

section 1, the Separation-of-Powers Doctrine 

(RQ-0457-GA) 

Dear Senator Duncan: 

You ask if Government Code section 2306.6710, which requires the Texas Department of 

Housing and Community Affairs to score and rank low-income housing tax-credit applications 

according to statutorily specified criteria, violates Texas Constitution article II, section 1, the 

Separation-of-Powers Doctrine.’ 

The federal government offers tax credits to private developers to stimulate investment in 

and.construction of low-income housing. See generally 26 U.S.C.A. 5 42 (West 2002 & Supp. 

2006). These federal tax credits are allocated among the states and awarded at the state level by a 

designated housing credit agency. See id. 5 42(h), (m). InTexas, the legislature, under Government 

Code chapter 2306, subchapter DD, has designated the Texas Department of Housing and 

Community Affairs (“TDHCA”) to administer the state’s low-income housing tax-credit program. 

See TEX. GOV’TCODEANN. 5s 2306.6701-.6734 (Vernon Supp. 2006); see also id. § 2306.053(10) 

(Vernon 2000) (authorizing TDHCA to “administer federal housing, community affairs, or 

community development programs, including the low income housing tax credit program”). 

The Internal Revenue Code requires TDHCA, as administrator of this tax-credit program, 

to allocate tax credits according to selection criteria laid out in a “qualified allocation plan.” See 26 

U.S.C.A. $42(m)(l)(B)-(C) (West 2002 & Supp. 2006). Texas law implements the federal law by 

requiring the TDHCA board to annually adopt a qualified allocation plan, see TEX. GOV’T CODE 

‘See Letter from Honorable Robert Duncan, Chair, Committee on State Affairs, Texas State Senate, to 

Honorable Greg Abbott, Attorney General of Texas (Feb. 21,2006) (on file with the Opinion Committee, also mailable 

af hrtp://www.oag.state.tx.us) [hereinafter Request Letter]. 
The Honorable Robert Duncan - Page 2 (GA-0455) 

ANN. 5 2306.67022 (Vernon Supp. 2006), which, among other things, provides the threshold scoring 

and underwriting criteria and procedures for applicants seeking low-income housing tax credits. See 

id. § 2306,6702(a)(lO). While TDHCA has discretion to determine the number ofpoints to assign 

the underwriting criteria and to score and rank the applications for tax credits, numerous provisions 

in the Government Code require TDHCA to consider specific funding priorities, information, and 

preferences in doing so.* And it is these prescriptive provisions that give rise to your question. See 

Request Letter, supra note 1, at l-2. 

Specifically, you ask about Government Code section 2306,6710(b), see id., which requires 

TDHCA to score and rank tax-credit applications using a point system that 

(1) prioritizes in descending order criteria regarding: 

(A) frnanciai feasibility of the development . ; 

(B) quantifiable community participation with respect to the 

development . ; 

(C) the income levels of tenants of the development; 

(D) the size and quality of the units; 

(E) the commitment of development funding by local 

political subdivisions; 

(F) the level of community support for the application, 

evaluated on the basis of written statements j?om state elected 

officials; 

(G) the rent levels of the units; 

(H) the cost of the development by square foot; and 

(I) the services to be provided to tenants of the 

development[.] 

TEX. Gov’TCODEANN. 3 2306,6710(b)(l) (V emon Supp. 2006) (emphasis added). This office has 

determined that this section is a mandatory provision that requires TDHCA to rank applications 

using a point system that gives the greatest number of points, in descending order, to the nine factors 

%X TEX. GOV’TCODEANN. 5 2306.6725(a) (Vernon Supp. 2006); Tex. Att’y Gen. Op. No. GA-0208 (2004) 

at 9 11.13 (discussing the discretion Government Code section 2306.6725(a) permits TDHCA in assigning points to 

undenvritingcriteria); see&o, e.g., TEX. GOV’TCODEANN. @2306.11 l(d),(g), .6704(b), .6710(b), .6718@)(Vemon 

Supp. 2006). 
The Honorable Robert Duncan - Page 3 (GA-0455) 

listed. See Tex. Att’y Gen. Op. No. GA-0208 (2004) at 10. You question whether the sixth factor, 

subsection (F), requiring TDHCA to assign points to written statements from state legislators, 

violates the Separation-of-Powers Doctrine in the Texas Constitution. See Request Letter, supra 

note 1, at 1-2; see also TEX. GOV’T CODE ANN. $5 2306.6710(f) (Vernon Supp. 2006) (requiring 

a system of positive to negative points for statements of support or objection from state legislators); 

id. 5 2306.6718(a)(l) (requiring TDHCA to “provide written notice of the tiling of an application 

to members of the legislature who represent the community containing the development 

described in the application”). 

You question this subsection’s constitutionality because Texas Constitution article II, section 

~1, the Separation-of-Powers Doctrine, requires the Texas government to be divided into three distinct 

departments-the legislative, the executive, and the judicial. See TEX. CONST. art. II, 5 1. The 

constitution elaborates that “no person, or collection of persons, being of one of these departments, 

shall exercise any power properly attached to either of the others, except in the instances herein 

expressly permitted.” Id. You note that many times TDHCA awards or refuses tax credits to 

applicants on a narrow margin of points where the determinative factor will be the points assigned 

to the application because of the presence or absence of a legislator’s written statement about the 

application.3 Thus, you suggest that section 2306,6710(b)(l)(F) retains an executive function for 

individual members ofthe legislative branch, which is inconsistent with the constitution’s language. 

See Supplemental Letter, supra note 3, at 1. 

While article II, section 1 appears on its face to require absolute division among the various 

branches, it has long been understood that a rigid application of this principle is impossible because 

not every governmental power tits logically and clearly into any particular department. See Gov ‘t 

Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560,562 (Tex. 1963) (“[T]heproblemofdetermining 

that which is judicial and that which is legislative is often difficult of statement under varying factual 

circumstances.“); Coatesv. Windham, 613 S.W.2d 572,576 (Tex. Civ. App.-Austin 1981,no writ) 

(“The proper interpretation of Article R, section 1 is . dictated by its context.“). It is more accurate 

to state that the Separation-of-Powers Doctrine “prohibits a transfer of a whole mass of powers from 

one department to another and it prohibits a person of one branch from exercising a power 

historically or inherently belonging to another department;” Coates, 613 S.W.2d at 576. But it does 

not prevent cooperation or coordination between two or more branches of government because that 

would otherwise hinder effective governmental action. State Bd. ofh. v. Betts, 308 S.W.2d 846, 

852 (Tex. 1958). Thus, in application article II, section 1 will prohibit the legislature from, for 

example, authorizing a legislative oversight committee to approve or veto an executive agency’s 

administrative rules-which rule-approval power is reserved to the executive branch-but it will not 

preclude the commentary or expressions of approval or disapproval by a legislative committeeto an 

administrative body. See Tex. Att’y Gen. Op. No. MW-0460 (1982) at 2 (observing that no law 

precludes a legislative committee from providing input to an agency, provided the committee is not 

the decision-maker); see also TEX. CONST. art. III, 5 1. 

‘See Letter and attachment from Honorable Robert Duncan, Chair, Committee on State Affairs, Texas State 

Senate, to Honorable Greg Abbott, Attorney General of Texas (Mar. 3 1,2006) (on file with the Opinion Committee) 

[hereinafter Supplemental Letter]. 
The Honorable Robert Duncan - Page 4 (GA-0455) 

Here, section 2306,6710(b)(l) requires only that TDHCA give priority in descending order 

to the nine enumerated factors listed there; the section, however, does not require TDHCA to assign 

specific values to those factors. See TEX. GOV’T CODE ANN. § 2306,6710(b)(l) (Vernon Supp. 

2006); id. ?j 2306.6725(a); see also Tex. Att’y Gen. Op. No. GA-0208 (2004) at 10 n.15 (referring 

to TDHCA’s authority to assign values to factors the agency must consider in ranking and scoring 

tax-credit applications). And as you note, it is only “possible that the mandatory points awarded or 

deducted because of a state elected official’s letter could be the deciding factor as to which 

applications are awarded the tax credits by [TDHCA].” Request Letter, supva note 1, at 2. That 

possibility applies equally to any of the criteria that TDHCA must consider and score. Given 

TDHCA’s broad discretion in this arena, any determinative quality in scoring a tax-credit application 

associated with a legislator’s written statement is not an executive power retained by the legislature; 

rather, that determinative quality is created by agency rule in its qualified allocation plan. Thus, we 

cannot say that the legislature, by requiring that its individual members’ input be assigned a score 

in a tax-credit application to an executive agency, is interfering, with a core power or the mass of 

powers reserved to TDHCA as a department in the executive branch. Section 2306,6710(b)(l), 

therefore, does not on its face violate Texas Constitution article II, section 1. 
The Honorable Robert Duncan - Page 5 (GA-0455) 

SUMMARY 

Government Code section 23066710@)(l), which requires 

the Texas Department of Housing and Community Affairs to score 

and rank applications for low-income-housing tax credits in part 

based on written statements from state elected officials, does not 

violate the Separation-of-Powers Doctrine in Texas Constitution 

article II. section 1. 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Daniel C. Bradford 

Assistant Attorney General, Opinion Committee