$2.6 Billion from State Highway 121 locked up by Attorney General

by Bill Baumbach of The Collin County Observer

Will Collin County ever get it's $900 million from the sale of the Highway 121 concession?

"We conclude that section 228.012 of the Transportation Code does not provide authority for the Texas Department of Transportation to transfer monies held in trust in a particular subaccount of the state highway fund to a regional transportation authority." -- Attorney General Greg Abbott in opinion GA-0687

Texas Attorney General Greg Abbott ruled Wednesday (PDF) that the Texas Department of Transportation may not release the $2.6 billion deposited by the NTTA as a concession fee for constructing and operating SH 121.

After citing the state law that permits the RTC to allocate the funds, the AG opinion then launched into a legal discussion of the difference between "allocate" and "distribute".

Abbott then concludes that the RTC may allocate the money, but it does not have the authority to distribute it.

In other words, the RTC can promise Collin County $900 million, but can't give it to them. The AG expressed no opinion as to who does have the authority to distribute the money, which would appear to leave it to the next Texas Legislature or the courts to decide the future of Collin County's road projects.

In November of 2007, the NTTA deposited the $2.6 Billion in "excess toll revenue" with TxDOT. The funds were the "concession fee" from the sale of the concession to collect tolls from highway 121 for the next 50 years.

TxDOT had promised to hold the money for distribution by the RTC (Regional Transportation Council).

Since then, the RTC has allocated the funds to several counties in the region. Collin County's share was $1.5 billion, of which $600 million was earmarked for SH 121 construction. The balance was to be used for local projects, including major improvements to Central Expressway.

The RTC recently approved much of the county's project list. However TxDOT, which has been sitting on the entire $2.6 billion, refused to release any of the funds and in June asked Attorney General Abbott (PDF) if it had the legal authority to release the funds to the RTC for distribution to the counties.

Now, according to Abbott, it could be only the Texas Legislature who can actually distribute the monies.

Leaving this question to the Legislature was the Collin County Commissioners' worst fear - and it appears their nightmare has begun.

The legislature is notorious for grabbing whatever money it can find to meet the competing priorities of State Government in a way that members can go home and say they did not raise taxes.

Late night, last minute committee deals frequently change entire spending bills, which are rushed to a vote before many legislators have an opportunity to analyze them. A last minute bill that sped through the final days of the session is the source of the "allocate" language used by Abbott to freeze up the money.

The legislature had passed a transportation bill that, in effect, killed the funding for the Trans Texas Corridor and most future toll road construction. After Governor Rick Perry vetoed it, the wheelers and dealers at the Statehouse put together a end-of-session compromise that allowed the highway 121 project. But it seems these legislators either pulled a fast one or just screwed up the bill in not granting the RTC the authority to actually distribute the funds.

Once the 81st Legislature is in session in January, Collin, Denton and the other counties in the SH 121 distribution will have to fight tooth and nail to preserve as much as they can from the NTTA deposit.

It remains to be seen how much they will get when the battles are over.