Can the Texas governor raise vehicle registration fees on his own to fund emergency services?

Plain-English summary

Representative Juan Hinojosa, chairing the House Committee on Criminal Jurisprudence, asked the Attorney General two questions in the months after the September 2001 attacks. First, could the governor raise the state motor vehicle registration fee on his own, without legislative approval, to generate money to help Texas hospitals, emergency medical personnel, police, and firefighters prepare for and prevent biological and chemical terrorist attacks? Second, is the registration fee a "tax," which would mean a bill about it had to go through the House Ways and Means Committee?

The Attorney General answered that only the legislature may set, appropriate, allocate, and direct the use of motor vehicle registration fees. The Texas Constitution divides government into three branches and bars one branch from exercising power belonging to another except as expressly permitted. It vests the legislative power, including the power to impose taxes, raise revenue, and appropriate state funds, in the legislature. Article VIII, section 7-a specifically dedicates net registration-fee revenue to road and traffic purposes, "[s]ubject to legislative appropriation, allocation and direction," and the legislature has set the fee amounts and their use by statute. The governor's constitutional roles, submitting revenue estimates and vetoing appropriation items, do not include the power to raise revenue, set fees, or appropriate funds. So the governor could not raise or appropriate registration fees.

The opinion added an important qualification. The governor may direct how state funds are spent when the legislature has delegated that authority, and article XVI, section 69 lets the legislature require prior approval or emergency transfer of appropriated funds. Chapter 317 of the Government Code delegates to the governor and the Legislative Budget Board the power, after finding an emergency exists while the legislature is not in session, to propose transferring or repurposing an appropriation. Under that chapter, the governor and the board could redirect registration fees the legislature had already appropriated to other uses permitted by article VIII, section 7-a, though constitutionally dedicated funds are subject to being withheld and generally may be transferred only to another agency entitled to receive those dedicated funds. On the committee-jurisdiction question, the opinion noted courts decide whether a charge is a tax or a fee by its primary purpose (revenue versus regulation) and that registration fees have been treated as taxes for some purposes and not others, but it concluded the real question, which House committee should consider a bill, is governed by the House's own rules and is for the House of Representatives alone to decide.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The governor's office (what the opinion held): The opinion held that the governor had no authority to raise or appropriate motor vehicle registration fees, because the constitution vests revenue and appropriation power in the legislature and article VIII, section 7-a gives the legislature sole control over these fees. It held that the governor's only avenue over these funds was the emergency redirection power in chapter 317, exercised jointly with the Legislative Budget Board, over fees the legislature had already appropriated.

Legislators (what the opinion held for them): The opinion held that setting the fee amount and directing the use of registration revenue belonged to the legislature, and that whether a fee bill is a "tax" bill that must go to a particular committee, such as Ways and Means, is a question of House procedure for the House to resolve under its own rules.

Emergency-preparedness agencies and local responders (what the opinion held for them): The opinion explained that new money for terrorism preparedness could not come from a governor-ordered fee increase. Any redirection of existing registration-fee appropriations had to run through the chapter 317 emergency process and stay within the road-and-traffic uses that article VIII, section 7-a permits.

Common questions

Could the governor raise vehicle registration fees without the legislature?
No. The opinion held that only the legislature may set, appropriate, allocate, and direct the use of motor vehicle registration fees, so the governor could not raise or appropriate them on his own.

Was there any way the governor could move registration-fee money in an emergency?
Yes, in a limited way. The opinion held that under chapter 317 of the Government Code, the governor and the Legislative Budget Board, after finding an emergency exists while the legislature is out of session, could redirect already-appropriated registration fees to other uses allowed by article VIII, section 7-a.

Is a vehicle registration fee a tax?
It depends on the purpose. The opinion noted courts call a charge a tax if its primary purpose is raising revenue and a fee if its primary purpose is regulation, and that registration fees have been held to be taxes for some constitutional purposes but not others.

Who decides whether a registration-fee bill goes to Ways and Means?
The House of Representatives. The opinion held that committee jurisdiction is set by the House's own rules and is solely the House's to determine.

Background and statutory framework

Article II, section 1 of the Texas Constitution separates the three branches and bars one from exercising another's powers except as expressly permitted. Tex. Const. art. II, § 1. The legislative power is vested in the legislature, id. art. III, § 1, and includes enacting laws, imposing taxes, raising revenue, and appropriating funds. Article VIII, section 7-a dedicates net motor vehicle registration-fee revenue, "[s]ubject to legislative appropriation, allocation and direction," to acquiring rights-of-way, building, maintaining, and policing public roads, and administering traffic and safety laws. Id. art. VIII, § 7-a. The legislature set the fee amounts in chapter 502 of the Transportation Code, Tex. Transp. Code Ann. §§ 502.160-.173 (Vernon 1999 & Supp. 2002), with fees collected by county tax assessor-collectors and, except for amounts counties retain, deposited to the state highway fund, id. § 502.051. Because the fees are constitutionally dedicated, that portion of the highway fund may not be diverted to other purposes.

The governor's emergency authority comes from a delegation. Article XVI, section 69 lets the legislature require, by appropriations rider or statute, prior approval or emergency transfer of appropriated funds. Tex. Const. art. XVI, § 69. Chapter 317 of the Government Code authorizes the governor or the Legislative Budget Board, after finding an emergency exists, to propose that an appropriation be transferred to another agency for a specified purpose or retained but used for a different or additional purpose. Tex. Gov't Code Ann. § 317.002(b) (Vernon 1998). Constitutionally dedicated funds are subject to being withheld under the chapter but may be transferred only to another state agency entitled to receive appropriations from those funds. Id. § 317.003(b). The board may hold a hearing and adopt, reject, or recommend changes to a governor's proposal. Id. § 317.005(a).

On whether the fee is a tax, Texas courts apply a purpose test: a charge whose primary purpose is raising revenue is a tax, while one whose primary purpose is regulation is a fee. Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 460-63 (Tex. 1997); Conlen Grain and Mercantile, Inc. v. Tex. Grain Sorghum Producers Bd., 519 S.W.2d 620 (Tex. 1975); Robinson v. Hill, 507 S.W.2d 521 (Tex. 1974). Registration fees have been treated as taxes for some purposes, County of Harris v. Sheppard, 291 S.W.2d 721 (Tex. 1956), and not for others, Atkins v. State Highway Dep't, 201 S.W. 226 (Tex. Civ. App.-Austin 1918, writ ref'd). But committee referral is governed by the House's power to set its own rules and determine its committees' authority. Tex. Const. art. III, § 11; § 37; Tex. Gov't Code Ann. § 301.013(a) (Vernon 1998). The opinion distinguished the separate origination requirement that revenue bills start in the House. Tex. Const. art. III, § 33; Day Land & Cattle Co. v. State, 4 S.W. 865 (Tex. 1887).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. II, § 1; art. III, § 1; art. III, § 11; art. III, § 33; art. III, § 37; art. VIII, § 7-a; art. XVI, § 69
• Tex. Gov't Code Ann. ch. 317; § 317.002(b); § 317.003(b); § 317.005(a); § 301.013(a)
• Tex. Transp. Code Ann. §§ 502.160-.173; § 502.051

Cases:

• Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 460-63 (Tex. 1997)
• Conlen Grain and Mercantile, Inc. v. Tex. Grain Sorghum Producers Bd., 519 S.W.2d 620 (Tex. 1975)
• Robinson v. Hill, 507 S.W.2d 521 (Tex. 1974)
• County of Harris v. Sheppard, 291 S.W.2d 721 (Tex. 1956)
• Atkins v. State Highway Dep't, 201 S.W. 226 (Tex. Civ. App.-Austin 1918, writ ref'd)
• Day Land & Cattle Co. v. State, 4 S.W. 865 (Tex. 1887)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0501
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0501.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

May 6, 2002

The Honorable Juan J. Hinojosa Opinion No. JC-0501
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives Re: Whether the governor is authorized to
P.O. Box 2910 increase and appropriate state motor vehicle
Austin, Texas 78768-2910 registration fees (RQ-0475-JC)

Dear Representative Hinojosa:

You ask whether "the governor [may] raise the state vehicle registration fee, without approval, for the purpose of generating funds to help Texas hospitals, emergency medical personnel, police and firefighters develop and improve their capabilities to respond to, and prevent terrorist biological and chemical attacks in Texas."[1] We conclude that only the legislature may set, appropriate, allocate and direct the use of state motor vehicle registration fees. However, chapter 317 of the Government Code authorizes the governor and the legislative budget board in the event of an emergency to act to redirect state motor vehicle registration fees already appropriated by the legislature for particular purposes to other uses permitted by article VIII, section 7-a of the Texas Constitution. See TEX. GOV'T CODE ANN. ch. 317 (Vernon 1998 & Supp. 2002). You also ask whether "the automobile state registration fee [is] considered a tax, which would require action by the House Ways and Means Committee?"[2] Whether proposed or contemplated legislation falls within the jurisdiction of a particular House committee is a matter to be determined by the House of Representatives.

First, we address the governor's authority over the amount and use of state motor vehicle registration fees. Article II, section 1 of the Texas Constitution provides for the three branches of government, legislative, executive, and judicial, and provides 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." TEX. CONST. art. II, § 1. The Texas Constitution vests "[t]he Legislative power of this State" in "The Legislature of the State of Texas," id. art. III, § 1, a power which includes the authority to enact laws, to impose taxes, to raise other revenue, and to appropriate state funds, see, e.g., id. art. III, §§ 29-31 (laws enacted by bills passed by both legislative houses), 33 ("All bills for raising revenue shall originate in the House of Representatives."), art. VIII, §§ 1 (legislature authorized to provide for taxation of property and to impose occupation taxes), 3 ("Taxes shall be levied and collected by general laws and for public purposes only."), 6 ("No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law . . ."). The Texas Constitution requires the governor to present the legislature with "estimates of the amount of money required to be raised for taxation for all purposes" and authorizes him to veto items of legislative appropriation, see id. art. IV, §§ 9, 14, but it does not give the governor the authority to raise revenues, to establish fees, or to appropriate funds.

Article VIII, section 7-a vests the authority to appropriate, allocate and direct use of motor vehicle registration fees in the legislature, providing in pertinent part:

            Subject to legislative appropriation, allocation and direction, all net revenues remaining after payment of all refunds allowed by law and expenses of collection derived from motor vehicle registration fees . . . shall be used for the sole purpose of acquiring rights-of-way, constructing, maintaining, and policing such public roadways, and for the administration of such laws as may be prescribed by the Legislature pertaining to the supervision of traffic and safety on such roads.

Id. art. VIII, § 7-a (emphasis added).

The legislature has established the amount of motor vehicle registration fees in chapter 502 of the Transportation Code. See, e.g., TEX. TRANSP. CODE ANN. §§ 502.160-.173 (Vernon 1999 & Supp. 2002). Fees are collected at the county level by county tax assessor-collectors. See id. §§ 502.101, .102. Pursuant to statute, the legislature has provided that fees that are not retained by the counties for road construction, see id. §§ 502.102, .108, are transferred to the Texas Department of Transportation, which must deposit the fees in the state treasury to the credit of the state highway fund, see id. § 502.051. The legislature has enacted numerous statutes providing for use of the state highway fund. See, e.g., id. §§ 201.002, 202.002, 221.003, 222.001, .002. Article VIII, section 7-a of the Texas Constitution dedicates motor vehicle registration fees to a particular use; thus, the portion of the state highway fund that consists of state motor vehicle registration fees (and other constitutionally dedicated monies) may not be diverted to other purposes. See Tex. Att'y Gen. Op. Nos. JC-0250 (2000), JM-323 (1985).

With these general principles in mind, we turn to your first question. Again, you ask whether "the governor [may] raise the state vehicle registration fee, without approval, for the purpose of generating funds to help Texas hospitals, emergency medical personnel, police and firefighters develop and improve their capabilities to respond to, and prevent terrorist biological and chemical attacks in Texas." Request Letter, supra note 1, at 1. Because articles III and VIII of the Texas Constitution vest the legislative branch with the authority to enact legislation and to raise state revenue, because article VIII, section 7-a specifically vests the legislature with the sole authority to appropriate, allocate, and direct use of state motor vehicle registration fees, and because the legislature has set the amount and use of the state motor vehicle fees by statute, we conclude that the governor may not raise or appropriate state motor vehicle registration fees. See TEX. CONST. art. II, § 1 ("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").

This is not the end of our analysis, however. Under Texas law, the governor has authority to determine how state funds are allocated if the legislature has delegated that authority to that office. See Tex. Att'y Gen. Op. No. JM-772 (1987) ("A corollary of the legislature's exclusive control over the appropriation of state funds is its exclusive control over how state funds are to be spent. Under state law the governor has no power to make determinations about how state money is to be distributed unless that power is expressly given to him by constitutional or statutory grant.") (citations omitted). Article XVI, section 69 of the Texas Constitution provides that "[t]he legislature may require, by rider in the General Appropriations Act or by separate statute, the prior approval of the expenditure or the emergency transfer of any funds appropriated to the agencies of state government." TEX. CONST. art. XVI, § 69. The legislature has delegated to the governor and the legislative budget board the authority to redirect legislative appropriations in case of an emergency, when the legislature is not in session. Specifically, chapter 317 of the Government Code authorizes the governor or the legislative budget board, "[a]fter finding that an emergency exists," to "propose that the authority to spend, obligate the expenditure of, or distribute part or all of an appropriation made to a state agency: (1) be transferred to another state agency to be used for a specified purpose; or (2) be retained by the agency to which the appropriation was made but used for a purpose different from or additional to the purpose for which the appropriation was made." TEX. GOV'T CODE ANN. § 317.002(b) (Vernon 1998); see also id. §§ 317.004-.005 (Vernon 1998 & Supp. 2002) (procedural requirements). The legislative budget board may hold a public hearing on a proposal of the governor and may adopt, reject, or recommend changes to the proposal. See id. § 317.005(a) (Vernon Supp. 2002); see also id. § 317.005(b) (governor's authority with respect to board proposal). "Funds dedicated by the Texas Constitution are subject to being withheld under this chapter but are not subject to transfer except to another state agency entitled to receive appropriations from the funds under the terms of the constitution." Id. § 317.003(b) (Vernon 1998). Thus, under chapter 317, in the event of an emergency, the governor and the legislative budget board could act to redirect state motor vehicle registration fees already appropriated by the legislature for particular purposes to other uses permitted by article VIII, section 7-a of the Texas Constitution.

You also ask whether "the automobile state registration fee [is] considered a tax, which would require action by the House Ways and Means Committee?" Request Letter, supra note 1, at 1. As a general matter, courts in Texas uniformly have held that, in determining whether a statutorily created charge is a tax or a fee, the test is that of purpose. If the overall primary purpose of the charge is to raise revenues, then it is a tax; if its primary purpose is regulation, then it is a fee. See, e.g., Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 460-63 (Tex. 1997); Conlen Grain and Mercantile, Inc. v. Tex. Grain Sorghum Producers Bd., 519 S.W.2d 620 (Tex. 1975); Robinson v. Hill, 507 S.W.2d 521 (Tex. 1974); County of Harris v. Sheppard, 291 S.W.2d 721 (Tex. 1956); see also Tex. Att'y Gen. Op. Nos. JC-0001 (1999), JM-963 (1988). Motor vehicle registration fees have been held to be taxes for some purposes, but not for others. Compare County of Harris, 291 S.W.2d 721 (holding that motor vehicle registration fees are taxes for purposes of article VIII, section 3 of the Texas Constitution and therefore must be levied and collected by general as opposed to special laws) with Atkins v. State Highway Dep't, 201 S.W. 226 (Tex. Civ. App.-Austin 1918, writ ref'd) (holding that statutory motor vehicle registration fees were not taxes for purposes of article VIII, sections 1 and 2 of the Texas Constitution but rather license fees for the privilege of operating vehicle on public highways).

For purposes of your question, however, the relevant inquiry is how the House of Representatives characterizes motor vehicle registration fees, which are constitutionally authorized, in determining whether bills are to be considered by the House Ways and Means Committee. Article III, section 11 of the Texas Constitution provides that each house of the legislature may "determine the rules of its own proceedings." TEX. CONST. art. III, § 11. The constitution requires that a bill be referred to a legislative committee before it is considered, but does not establish particular committees or mandate the referral of certain categories of bills to certain committees. See id. art. III, § 37. Section 301.013(a) of the Government Code provides that each house "may determine the number, composition, function, membership, and authority of its committees" by its rules of procedure or by simple resolution. See TEX. GOV'T CODE ANN. § 301.013(a) (Vernon 1998). Given the authority of each house to establish its own rules of procedure and to determine the authority of its own committees, and in light of the absence of any applicable constitutional or statutory requirements, the determination whether proposed or contemplated legislation falls within the jurisdiction of a particular House committee is within the sole province of the House of Representatives.

We note that article III, section 33 provides that "[a]ll bills for raising revenue shall originate in the House of Representatives." TEX. CONST. art. III, § 33; see also Day Land & Cattle Co. v. State, 4 S.W. 865 (Tex. 1887) (article III, section 33 requirement "confined to bills to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes, which may incidentally create revenue"). We do not understand you to ask whether a bill regarding motor vehicle registration fees must originate in the House of Representatives but rather whether such a bill must be considered by the House Ways and Means Committee as opposed to some other House committee.

                                    SUMMARY

            The governor is not authorized to increase or appropriate state motor vehicle registration fees. However, chapter 317 of the Government Code authorizes the governor and the legislative budget board in the event of an emergency to act to redirect state motor vehicle registration fees already appropriated by the legislature for particular purposes to other uses permitted by article VIII, section 7-a of the Texas Constitution.

            Whether proposed or contemplated legislation falls within the jurisdiction of a particular House committee is a matter to be determined by the House of Representatives.

                                       Yours very truly,

                                       JOHN CORNYN
                                       Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Juan J. Hinojosa, Chair, Committee on Criminal Jurisprudence, to Honorable John Cornyn, Texas Attorney General, (Nov. 26, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

[2] Id.