Untitled Texas Attorney General Opinion ( 1972 )

August25, 1972
Hon. James P. Baker, Chairman Opinion No. M-1193
Texas Board of Licensure for
Nursing Home Administrators Re: Reconciliation of Section
P. 0. Box 4246 3, Subsection (9), and
Austin, Texas 78767 Section 10, Subsection (61,
of Article 4442d, the Texas
Board of Licensure for Nurs-
ing Rome Administrators Act,
relating to deposit and
withdrawal of fees and
monies received by the
Dear Mr. Baker: Board.
In your recent original and supplemental requests you
asked our office for,an opinion on the following questions:
Question 1. Should the Board of Licensure
for Nursing Home Administrators comply with Article
4442d, Section 10(6), or with the newly added
Section 3(9) of Article 44428, Vernon's Civil
Statutes, or may it choose to comply with which-
ever provision it deems most suited to its duties?
Question 2. If the Board must comply with
Section 3(g), is the Board required to deposit
all of its funds into the State Treasury, or is
it required to deposit only the money received
from the license fees?
Question 3. If the Board must comply with
Section 3(g), must the Board deposit all license
fee receipts with the State Treasury,= does the
requirement affect only those license fees re-
ceived after June 15, 1971, which is the effective
date of the amendment requiring license fees to
be deposited into the State Treasury?
Question 4. Is the appropriations bill~to be
considered a "special" law? If so, can it amend
the Act, which appears to be a general law?
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Hon. James P. Baker, page 2 (M-1193)
Question 5. Is a special fund created by the
appropriations bill?
When a bill becomes law and material is added to the
law at a later time by an amendment, it is presumed that the
Legislature intended that the old law remain in effect unless
the amendment contains an expressed or implied repeal of the old
law or unless there is such an irreconcilable conflict that both
cannot remain in effect. Cole v. State, 106 Tex. 472, 170 S.W.
1036 (1914); Hankins v. Connally, 206 S.W.Zd 89 (Tex.Civ.App.
1947, error ref. n.r.e.); County of Harris v. Tennessee Products
Pipe Line Co., 332 S.W.2d 777 (Tex.Civ.App. 1960, no writ);
Howth v. Case (J.E.) Threshing Machine Co., 280 S.W. 238 (Tex.
Civ.App. 1925, error ref.); Hunnicut v. Lee, 16 S.W.Zd 968 (Tex:
Civ.App. 1929, no writ).
Texas does not favor repeal by implication, but does
favor considering laws relating to the same subject as though
thev
---.a
were included in the same act so as to harmonize and give
effect to them. &chardson v. Cameron County, 275 S.W.Zd 709
(Tex.Civ.App. 19!
55, no writ): Gordon v. LaIce, 163 Tex. 392, 356
s.w.Zd 138 (1962)~ f International Service Int3. Co. v. Jackson,
335 S.W.2d 420 (Texm ~- n-T--e.
pp. 1960, error rei- _
-----T-,-
It is also presumed that when two statutes are in pari
materia,,but it may be impossible to completely reconcile them,~
the older statute will be repealed by implication only to the
extent of the actual irreconcilable conflict. Whittenberq v.
Craven, 250 S.W. 152 (Tex. Comm.App. 1924); Townsend v. Terrell,
1118x. 463, 16 S.W.2d 1063 (Tex.Comm.App,.1929); Meek v.44
Wheeler County, 124 S.W.Zd 331 (Tex.Civ.App. 1939) aff'd 1
S.W.Zd 885; Firbt Nat. Bank v. Lee County Cotton Oil Co., 250
S.W. 313 (Tex.Civ.App. 1923) aff'd 274 S.W. 127.
Two statutes are under consideration here. Article
4442d, Section 10(6), Vernon's Civil Statutes, was enacted in
1969 and reads as follows:
"~11 fees or other monies received by said
board under this law shall be deposited to the
account of the board in federally insured ac-
counts and shall be Daid out on vouchers duly
issued in a manner directed by the board. Ail
mnniaa
_..---- -- so --------
-- received and placed to the accountof
the board may be us-- ed -~
bv the
_~~~board in defraying
its expenses In carrying on izhe provisions of
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Hon. James P. Baker, page 3 (M-1193)
this law. No expenses incurred by said board
shall be paid by the State." (Emphasis added;)
Article 44428, Section 3(9), Vernon's Civil Statutes,
was added in 1971, effective June 15, 1971, and reads as follows:
"All license fees shall be deposited in
the state treasury." (Emphasis added.)
Article 4442d, Section 3(9), creates an irreconcilable
conflict with Article 44426, Section lO(6). As a result you are
advised that Article 4442d, Section 10(6), which allows all monies
collected by the Texas Hoard of Licensure for Nursing Home Ad-
ministrators to be expended by the Board for its operations is
now limited by Article 4442d, Section 3(9).
The Board, under Article 4442d, Section 10(3), is autho-
rized to set an initial license fee not to exceed one hundred
dollars ($100) for a two-year period. A renewal license fee,
also not to exceed one hundred dollars ($100) for the biennium,
is also authorized. In addition, the Legislature has specifical-
ly authorized the Board to collect an examination fee of seventy
dollars ($70). This fee,which must accompany the application
for the required examination and is not refundable, is to be
used for investigation, processing and testing purposes. In
addition, reasonable fees may be set for the issuance of copies
of public records in the Board's office , certificates or transcripts,
and duplicates of lost instruments.
From the fees collected, the Board must deposit the
initial license fee and the renewal license fee to the State
Treasury. All other fees may be deposited to the account of
the Board under Article 44428, Section lO(6).
The Third Called Session of the Sixty-Sfcond Legis-
lature in 1972 passed a general appropriation act which'was a
general, not a special, law. This act contains an appropriation
for )jhisBoard's operation out of the Nursing Home Administrators
Fund . In making this appropriation the Legislature made an ap-
propriation back to the Board from those funds which should have
62nd Leg., 3rd C.S. 1972, S.B. 1.
22., 111-105-106.
1Acts
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Hon. James~P. Baker, page 4 (M-1193)
been paid into the State Treasury since June 15, 1971, the ef-
fective date of Article 44426, .Section3(9).
SUMMARY,
The Board of Nursing Home Administrators must
deposit the initial license fee, which may not ex-
ceed one hundred dollars ($100) for the biennium,
and the renewal license fee, which also may not
exceed one hundred dollars ($100) for the biennium,
into the State Treasury beginning June 15, 1971.
All other fees and monies received by the Board
shall be deposited to the account of the Board
as provided in Article 4442d, Section 10(6), Vernon's
Civil Statutes.
Prepared by Linda Neeley
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jim Swearingen
Harriet Burke
James Hackney
Robert Lemens
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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