ATTORNEY GENERALOF TEXAS 

GREG ABBOTT 

February 2 1,2006 

Mr. Paul Mallett, Executive Director 

Commission on State Emergency 

Communications 

333 Guadalupe Street, Suite 2-212 

Austin, Texas 78701-3942 

Opinion No. GA-040 1 

Re: Whether the Commission on State Emergency 

Communications or the Comptroller of Public Accounts 

has primary jurisdiction to determine in the context of 

a claim for a refund whether the 9-l-l emergency 

service fee imposed on wireless telecommunications 

connections by Texas Health and Safety Code section 

771.071 l(a) is applicable to a service provider’s 

specific service (RQ-0370-GA) 

Dear Mr. Mallett: 

You ask whether the Commission on State Emergency Communications (the “Commission”) 

or the Comptroller of Public Accounts (the “Comptroller”) has primary jurisdiction to determine in 

the context of a claim for a refund whether a 9-l-l emergency service fee imposed on wireless 

telecommunications connections by Texas Health and Safety Code section 771.071 l(a) applies to 

a service provider’s specific service.’ 

A “9-l - 1 service” is a telecommunications service that enables a user of the public telephone 

system “to reach a public safety answering point by dialing the digits 9-l -1.” TEX. HEALTH & 

SAFETY CODE ANN. $ 771.001(6) (Vernon 2003). Service is generally provided by local service 

districts, which may participate in 9- 1- 1 service plans developed by regional planning commissions. 

Id. $0 771.056-.058 (Vernon2003), 772.105-.110(VernonSupp.2005),772.210-.310(Vernon2003 

& Supp. 2005). The Commission administers the implementation of statewide 9-l-l service. Id. 

9 77 1.05 1 (a)( 1) (Vernon 2003). 

In the subchapter of the code concerning the financing of state emergency communications, 

section 771.071 l(a) states that the Commission shall impose a fee on each “wireless 

telecommunications connection,” commonly known as a cell phone. See id. 5 77 1.07 11 (a) (located 

in chapter 77 1, subchapter D); see also id. 6 77 1 .OOl (13) (definition of “wireless telecommunications 

‘Letter from Mr. Paul Mallett, Executive Director, Commission on State Emergency Communications, to 

Honorable Greg Abbott, Attorney General of Texas (Aug. 3,2005) (on file with the Opinion Committee, also available 

at http://www.oag.state.tx.us) [hereinafter Request Letter]. 
Mr. Paul Mallett - Page 2 (GA-040 1) 

connection”); Request Letter, supra note 1, at 2.2 The fee is statutorily established at 50 cents per 

month per connection. TEX. HEALTH & SAFETY CODE ANN. 0 771.0711 (b) (Vernon 2003). A 

“wireless service provider” must bill the fee to subscribers, receive payment, and remit amounts so 

collected to the Comptroller, who deposits the money to the credit of the 9-l- 1 services fee account. 

Id. $4 771.071 l(b), .073(a).3 The Commission administers the distribution of money appropriated 

to the Commission from the 9-l-l service fee. Id. $j§ 771.056(d), .071(f), .071 l(c), .078. Money 

from fees collected under section 77 1.07 11 “may be used only for services related to 9-l -1 services.” 

Id. 5 771.071 I(c). 

Your question is prompted by a wireless service provider’s claim for a refund, filed with both 

the Commission and the Comptroller. Request Letter, sup-a note 1, at 1. The provider contends that 

it is not subject to section 771.071 l’s requirements because the provider’s wireless services are 

offered on a prepaid basis. Id. You clarify that the Commission does not seek an opinion about the 

applicability of the statute to the prepaid service provider. Rather, your specific question is “whether 

the Commission or the Comptroller has primary jurisdiction to determine whether the 9-l -1 

emergency service fee imposed on wireless telecommunications connections by Texas Health and 

Safety Code Section 771.07 11 (a) is applicable to a specific service provided by a service provider.” 

Id. at 3; TEX. HEALTH & SAFETY CODE ANN. 8 77 1.0711 (Vernon 2003). 

Your question is essentially a matter of statutory construction-whether the legislature 

intended the Commission or the Comptroller to decide, in the first instance, the applicability of the 

emergency service fee on wireless telecommunications connections to a specific service, thereby 

obligating the service provider to bill, receive, and remit the fee to the Comptroller under section 

‘The Commission is also authorized to impose fees “on each local exchange access line or equivalent.” TEX. 

HEALTH & SAFETY CODE ANN. 9 77 1.07 l(a) (Vernon 2003). 

3”Wireless service provider” is defined as: 

a provider of commercial mobile service under Section 332(d), Federal 

Telecommunications Act of 1996 (47 U.S.C. Section 151 et seq.), Federal 

Communications Commission rules, and the Omnibus Budget Reconciliation Act 

of 1993 (Pub. L. No. 103-66), and includes a provider of wireless two-way 

communication service, radio-telephone communications related to cellular 

telephone service, network radio access lines or the equivalent, and personal 

communication service. The term does not include a provider of: 

(A) a service whose users do not have access to 9- 1- 1 service; 

(B) a communication channel used only for data transmission; 

(C) a wireless roaming service or other nonlocal radio access line service; 

or 

(D) a private telecommunications service. 

Id. 9 771.001(12). 
Mr. Paul Mallett - Page 3 (GA-040 1) 

771.0711. Consequently, we review section 771.071 l’s allocation of responsibility between the 

Commission and the Comptroller.4 

Section 771.051 begins with a clear statement about the Commission’s role under the 

chapter: “The commission is the state’s authority on emergency communications.” TEX. HEALTH 

& SAFETY CODE ANN. $ 77 1.05 1 (a) (Vernon 2003). The Commission has the duty to “administer 

the implementation of statewide 9- 1 - 1 service.” Id. 0 771.05 l(a)(l). This duty requires the 

Commission to oversee or coordinate the efforts of a complex amalgam of local emergency 

communication districts of various types, regional planning commissions, local exchange 

providers, intrastate long distance providers, wireless service providers, and others. See, e.g., id. 

~~771.001(3)-(5),(10),(12),.051(a)(1)-(10),.055-.058(Vemon2003),772.101-.455(Ve~on2003 

& Supp. 2005). A major feature of the Commission’s duties is its relation to regional planning 

commissions. The Commission must enter into contracts with the regional planning commissions 

to provide 9-l-l service, assist them in the establishment of such service, develop performance 

standards for equipment and operations that regional plans are to follow, and review and approve 

or disapprove regional plans. Id. $3 771.051(a)(2), (3), .056 (Vernon 2003). 

Concerning the financing of state emergency communications, the Commission is authorized 

to impose a 9-1-l emergency service fee on each “local exchange access line [sometimes referred 

to as a wire line or land line] or equivalent local exchange access line,” id. 5 77 1.07 1 (a), and on each 

wireless telecommunications connection. Id. 5 771.071 l(a). The Commission is required to 

determine by rulemaking what constitutes a local exchange access line and an equivalent local 

exchange access line, reviewing its definition annually in light of changing circumstances such as 

technological development. Id. 6 771.063(a)-(c). The Commission may set the fee, not to exceed 

50 cents a month per line, in different amounts in different regions based on costs in the region. Id. 

rj 771.071(b)-(c). Also, the Commission must impose an equalization surcharge on all intrastate 

long-distance service customers. Id. 9 771.072(a). Local exchange service providers and intrastate 

long-distance service providers must collect the respective fees and remit them to the Comptroller 

in a manner similar to that required by section 771.0711 concerning wireless service providers. Id. 

4 771.071(e). However, for all fees and surcharges under sections 771.071,771.0711, and 771.072, 

the Commission may establish payment schedules and minimum thresholds. Id. 6 771.073(f). 

The Commission must allocate fees collected under sections 77 1.071 and 771.07 11 to each 

region according to statutorily specified formulas. Id. 5 771.078(b)(l)-(2). Additionally, the 

Commission may allocate remaining funds to a region in an “amount that the commission considers 

appropriate to operate 9- l- 1 service in the region according to the [region’s] plan and contracts” with 

the Commission. Id. 6 771.056(d). Specifically with respect to the wireless telecommunications 

4The analogous “primary jurisdiction doctrine” is a judicially-created doctrine that decides whether a court 

should abate a proceeding before it to allow an agency to make the initial determinations in a dispute when the court and 

the agency have concurrent jurisdiction. See Subaru ofAm., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212,221 

(Tex. 2002). Also, as between agencies, if an agency has “primary and plenary jurisdiction” over a regulated industry, 

generally “[olther state agencies should recognize the validity of the orders of the primary agency.” Bullock v. Shell 

Pipeline Corp., 671 S.W.2d 715, 719 (Tex. App.-Austin 1984, writ refd n.r.e.). 
Mr. Paul Mallett - Page 4 (GA-0401) 

connection fee, section 77 1.07 11 states that the fees “may be used only for services related to 9- 1 - 1 

services.” Id. 0 77 1.07 11 (c). That section also requires the Commission or a municipal emergency 

services district or a chapter 772 emergency services district to reimburse a wireless service provider 

according to state law “for reasonable expenses for network facilities, including equipment, 

installation, maintenance, and associated implementation costs.” Id. 3 77 1.07 1 l(g). 

As originally enacted, section 771.0711 required the Commission to receive the fee from 

wireless telecommunication providers and authorized the Commission to establish collection 

procedures. See Act of May 23, 1997,75th Leg., R.S., ch. 1246, $ 2, 1997 Tex. Gen. Laws 4720, 

4720-2 1. Accordingly, the Commission promulgated rules for collection procedures and contested 

case hearings in title 1, sections 253.1-.3 1 of the Texas Administrative Code. See 22 Tex. Reg. 9786 

(1997), adopted23 Tex. Reg. 1540 (1998) (codified at 1 TEX.ADMIN. CODE $5 253.1-.31); 28 Tex. 

Reg. 3666 (2003) (repeal of 1 TEX. ADMIN. CODE $0 253.1-.3 l), adopted 28 Tex. Reg. 4885 (2003) 

(Comm’n on State Emergency Communications). However, in 1999 the legislature shifted authority 

for collecting past due fees from the Commission to the Comptroller. Act of May 30, 1999, 76th 

Leg., RX, ch. 1405,§ 37,1999 Tex. Gen. Laws 4739,4752; see generally Tex. Att’y Gen. Op. No. 

JC-0284 (2004). Further, in 2001 the legislature amended section 771.0711 to require service 

providers to pay fees collected from subscribers to the Comptroller instead of to the Commission. 

Act of May 26,200 1,77th Leg., R.S., ch. 1158,§ 8 1,200 1 Tex. Gen. Laws 2570,26 12. According 

to the bill analysis for the bill as enrolled, the purpose of the 200 1 legislation was to “streamline and 

enhance the [Comptroller’s] administration of the state’s fiscal matters.” HOUSE COMM. ON WAYS 

& MEANS, BILL ANALYSIS, Tex. H. B. 2914,77th Leg., R.S. (2001). 

As a result of these changes to chapter 771, the Comptroller has a number of fiscal 

responsibilities under chapter 771. The Comptroller must receive the fees remitted by the wireless 

telecommunications provider and deposit them to the credit of the 9- 1- 1 services fee account. TEX. 

HEALTH & SAFETY CODE ANN. 6 771.071 l(b) (Vernon 2003). At the Comptroller’s discretion or 

upon the Commission’s notification of irregularities concerning a provider, the Comptroller may 

conduct an audit of a service provider, which must include an audit of “collections and 

disbursements to determine if the provider is complying with [chapter 77 I] .” Id. 5 77 1.076(a)-(b). 

Under section 771.077(a), the Comptroller “may establish collection procedures to collect past due 

amounts . . . from a service provider” that fails to deliver required fees. Id. $ 771 .077(a).5 That 

section further states that “Subtitles A and B, Title 2, Tax Code, apply to the administration and 

collection of amounts by the comptroller under this subchapter.” Id. 9 771.077(a). 

Title 2, subtitle B, chapter 111 of the Tax Code concerns enforcement and collection. TEX. 

TAX CODE ANN. $6 111 .OOl-.353 (Vernon 2001 & Supp. 2005). Section 111.104 permits a refund 

“[i]f the comptroller finds that an amount of tax, penalty, or interest has been unlawfully or 

erroneously collected.” Id. 8 111.104(a) (Vernon Supp. 2005). The Comptroller may grant or deny 

such a claim after an informal review or render a decision after a hearing according to procedures 

prescribed by the Comptroller. Id. 5 $ 111.1042(a), .105(a) (Vernon 200 1 & Supp. 2005). A person 

‘Additionally, the Comptroller may establish procedures for collecting past due fees directly from individual 

subscribers. TEX. HEALTH & SAFETY CODE ANN. $5 77 1.07 11 (f), .073(c) (Vernon 2003). 
Mr. Paul Mallett - Page 5 (GA-040 1) 

dissatisfied with the decision after the administrative hearing may, in appropriate circumstances and 

following proper procedure, sue for the refund in court. Id. 9 112.15 1 (a) (Vernon 2001). 

No statute addresses how to resolve or who should resolve a wireless telecommunications 

service provider’s contention that it provides a service that is not subject to the fee in section 

771.071 l(a). You do not elaborate about the provider’s contention, other than to say that it was 

raised in connection with a claim for a refund and based on the fact that the services were provided 

on a prepaid basis. Request Letter, supra note 1, at 1. We assume the question involves mixed 

questions of statutory construction and fact requiring a degree of expertise concerning emergency 

communications. 

Administrative agencies have only “those powers the law confers upon them in clear and 

express statutory language and those reasonably necessary to fulfill a function or perform a duty that 

the Legislature has expressly placed with the agency,” In re Entergy Corp., 142 S.W.3d 316, 

322 (Tex. 2004). The Commission’s overriding function in chapter 771 is to administer the 

implementation of statewide 9-l - 1 service. See TEX. HEALTH& SAFETY CODE ANN. 5 77 1.05 1 (a)( 1) 

(Vernon 2003). The intent to centralize the state’s emergency communications expertise in the 

Commission is manifest in the direct statement that the “commission is the state’s authority on 

emergency communications.” Id. 5 771.05 1 (a). The Commission is expressly required to impose 

the fee on wireless telecommunications connections. Id. 6 771.07 11 (a). From the imposition of the 

fee flows the providers’ duties to bill, receive, and remit the fee. Id. $5 771.071 l(a)-(b), .073(a). 

The Commission’s authority to resolve a claim about the applicability of section 771.071 l(a) to a 

wireless telecommunications connection based on the nature of the provider’s service is therefore 

clearly within the Commission’s purview. 

On the other hand, the Commission’s authority to order a refund is extremely limited. See 

id. 6 77 1.073(g) (prohibiting a recovery of fees erroneously billed and remitted to the Commission 

except in limited circumstances). The Commission does not appear to have the authority to grant 

the relief requested under the circumstances presented. See Request Letter, supra note 1, at 1. Under 

chapter 77 1 of the Health and Safety Code and section 111.104 of the Tax Code, the authority to 

order such a refund lies with the Comptroller. See TEX. HEALTH & SAFETY CODE ANN. 0 77 1.077(a) 

(Vernon 2003); TEX. TAX CODE ANN. § 111.104(a) (Vernon Supp. 2005). The legislature transferred 

the Commission’s collection authority to the Comptroller to maximize efficiency in collecting the 

fees. See HOUSE COMM. ON WAYS & MEANS, BILL ANALYSIS, Tex. H. B. 2914, 77th Leg., R.S. 

(2001). The legislature did not vest the Comptroller with authority to impose the fee on wireless 

telecommunications connections, however. See TEX. HEALTH & SAFETY CODE ANN. 0 77 1.07 11 (a) 

(Vernon 2003). Nor do we discern in chapter 771 the intent for the Comptroller to duplicate the 

expertise of the Commission in matters concerning the implementation of statewide 9-l -1 services.6 

6For this reason, we believe that a court would give deference to the Commission’s determinations about 

emergency communications that it likely would not afford to decisions by the Comptroller about the same issues. See 

City of Corpus Christi v. Pub. Util. Comm ‘n, 5 1 S. W.3d 23 1,26 1 n. 143 (Tex. 2001) (concerning deference given to 

construction of a statute by an agency charged with its administration); Buddy Gregg Motor Homes, Inc. v. Motor Vehicle 

Bd. of Tex. Dep ‘t of Transp., 156 S.W.3d 91, 102 (Tex. App.-Austin 2004, pet. denied) (stating that a court may afford 

less deference to an agency’s determination in a matter outside of its expertise). 
Mr. Paul Mallett - Page 6 (GA-040 1) 

Consequently, the Comptroller does not have the authority to decide in the first instance whether the 

fee in section 771.07 11 (a) applies to a wireless telecommunications connection based on the nature 

of the wireless service provider’s particular service. 

In short, the Commission has the authority to decide the applicability of section 771.0711 (a) 

to a particular service offered by a wireless service provider, but not the authority to grant the relief 

requested; the Comptroller may grant a refund but does not have the authority to resolve the issue 

in the first instance. Nevertheless, chapter 771 as a whole reflects an intent that the Commission and 

the Comptroller cooperate in the administration of fee payment and collection. The Comptroller is 

authorized to establish collection procedures generally and particularly to “establish procedures to 

be used by the commission to notify the comptroller of a service provider’s . . . failure to timely 

deliver the fees or surcharges.” See id. 0 771.077(a)-(b). A claim for a refund must be filed with the 

Comptroller according to that office’s rules and the Tax Code, but if the claim is based on the 

applicability of section 77 1.07 11 (a) to a wireless telecommunications connection due to the nature 

of the provider’s service, the Comptroller should abate the proceeding to allow the Commission to 

determine the issues singularly within its expertise. 
Mr. Paul Mallett - Page 7 (GA-040 1) 

SUMMARY 

The Commission on State Emergency Communications, not 

the Comptroller of Public Accounts, has authority to determine 

whether section 771.071 l(a) of the Texas Health and Safety 

Code, imposing a 9-l-l emergency service fee on wireless 

telecommunications connections, applies to a wireless service 

provider’s specific service. The Comptroller, not the Commission, 

has authority to order a refund of fees collected under section 

77 1.07 11. A claim for a refund of the fee imposed under that section 

must be filed with the Comptroller, but if the claim presents issues 

particularly within the Commission’s expertise, the Comptroller 

should abate the administrative proceeding to allow the Commission 

to make the initial determination of those issues. 

Very truly yours, 

’ Attorney&al of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

William A. Hill 

Assistant Attorney General, Opinion Committee