Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 4,2011

The Honorable Jeff Wentworth Opinion No. GA-0833
Chair, Senate Select Committee on
Veterans' Health Re: Whether a metropolitan transit authority may,
Texas State Senate under section 451.616 of the Transportation Code,
Post Office Box 12068 charge a withdrawn city for special transit services
Austin, Texas 78711-2068 provided to the city's residents with disabilities
(RQ-0899-GA)

Dear Senator Wentworth:

On behalf of the City of West Lake Hills (the "City"), you ask whether Capital Metropolitan
Transit Authority ("Capital Metro") has "the authority to charge the City for special transit services
that Capital Metro provides" to certain residents with disabilities who reside in the City.'

You explain that Capital Metro was created in 1985 when voters in Austin and other
surrounding municipalities, including the City, approved of its creation. Request Letter at 1. In
1987, the Texas Legislature enacted the predecessor to section 451.603 of the Transportation Code,
allowing certain cities to withdraw from a metropolitan rapid transit authority such as Capital Metro.2
Pursuant to this statute, the City voted to withdraw effective January 19, 1988. Id. Subsequent to
the City's withdrawal, the Legislature enacted section 451.610 of the Transportation Code, requiring
that metropolitan rapid transit authorities "continue to provide transportation services for persons
with disabilities in a withdrawn unit of election.'" Thus, pursuant to this statute, you tell us that
"Capital Metro provides special transit services to certain residents with disabilities who reside in
the City" despite that the City has withdrawn from Capital Metro. Request Letter at 1.

Alongside section 451.610, the Legislature established a procedure for funding such services:

The Comptroller shall withhold from the amount of sales and use tax
revenue refunded to a unit of election that has withdrawn from an

IRequest Letter at 1-2 (available at http://www.texasattorneygenera1.gov).

2Act of May 22, 1987, 70th Leg., R.S., ch. 790, § 7,1987 Tex. Gen. Laws 2774, 2777 (amended 1989 &1995)
(current version at TEx. TRANSP. CODE ANN. § 451.603 (West 2007)).

3Act of May 27, 1991, 72d Leg., R.S., ch. 503, § 6, 1991 Tex. Gen. Laws 1766, 1767 (amended 1995) (current
version at TEx. TRANSP. CODE ANN. § 451.610 (West 2007)).
The Honorable Jeff Wentworth - Page 2 (GA-0833)

authority the full amount of the difference between the cost of
providing services to persons with disabilities in the unit of election
and the fares charged during the period in which the sales and use tax
was collected and remit this amount to the authority providing the
services.

TEX. TRANsp. CODE ANN. § 451.616(a) (West Supp. 2010). You explain that pursuant to this
section, the Comptroller is giving a portion of the City's monthly sales and use tax revenue to Capital
Metro as a reimbursement for the cost of providing special transit services to the City's disabled
residents. Request Letter at I. Given that sections 451.610 and 451.616 of the Transportation Code
were enacted in 1991, after the City withdrew from Capital Metro, you question whether these
statutes are retroactive as applied to the City in violation of the Texas Constitution. !d. at 1-2.

Article I, section 16 of the Texas Constitution provides, "No ... retroactive law ... shall be
made." TEX. CONST. art. I, § 16. "A retroactive law literally means a law that acts on things which
are past." Suharu of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002).
When it enacted sections 451.610 and 451.616 of the Transportation Code, the Legislature imposed
a new duty on the City to pay for services provided by Capital Metro to the City's disabled residents,
but it did so only on a prospective, rather than on a retroactive, basis. Only from the effective date
of the statute onward were withdrawn cities required to fund these services. Withdrawn cities may
have expected to have no further involvement with such authorities after voting to withdraw.
However, '" [aJ statute does not operate 'retrospectively' merely because it ... upsets expectations
based in prior law.'" Quick v. City of Austin, 7 S.W.3d 109, 132 (Tex. 1998) (quoting Landgrafv.
USI Film Prods., 511 U.S. 244, 269 (1994)). No entity has a vested right merely in the continuance
of present law in relation to a particular subject. Suharu, 84 S.W.3d at 219 (citation omitted). The
Legislature may change laws so long as it does not destroy or prevent the adequate enforcement of
vested rights, neither of which it did here. Id.

The City argues through its brief that the Legislature has impaired the City'S vested rights
by requiring the City to pay Capital Metro for services provided, which, the City argues, unlawfully
deprives the City of the use of its sales and use taxes. 4 However, a municipality "acquires no vested
rights against the State." Tooke v. Mexia, 197 S.W.3d 325, 345 (Tex. 2006); Deacon v. City of
Euless, 405 S.W.2d 59, 62 (Tex. 1966). As a creation of the Legislature, a municipality has no
privileges or immunities which it may invoke in opposition to the will of its creator. Williams v.
Mayor of Baltimore, 289 U.S. 36,40 (1933).

We therefore conclude that sections 451.610 and 451.616 of the Transportation Code are not
retroactive in violation of article I, section 16 of the Texas Constitution. Capital Metro is not
prohibited by that constitutional provision from charging the City for transportation servic.es
provided to the City's residents with disabilities pursuant to the Transportation Code.

'See Brief from Alan J. Bojorquez, City Attorney at 2 (Aug. 17,2010) (on file with the Opinion Committee).
The Honorable Jeff Wentworth - Page 3 (GA-0833)

SUMMARY

Sections 451.610 and 451.616 of the Transportation Code are
not retroactive statutes in violation of article I, section 16 of the Texas
Constitution. Capital Metro is therefore not prohibited by that
constitutional provision from charging the City of West Lake Hills for
transportation services provided to the City's residents with
disabilities pursuant to the Transportation Code.

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee