Untitled Texas Attorney General Opinion ( 1975 )

October 14, 1975
The Honorable Hugh C. Yantis, Jr. Opinion No. H- 716
Executive Director
Texas Water Quality Board Re: Application of article 8.
1700 North Congress Avenue section 6 of the Texas
P. 0. Box 13246, Capitol Station Constitution to Boat
Austin, Texas 78711 Certification Fee Refunds.
Dear Mr. Yantis:
You ask if the requirement of article 8. section 6 of the Texas Constitution
that “no money shall be drawn from the treasury but in pursuance of specific
appropriations mady be law” applies to the special fund into which are put
boats certification fees collected by the Texas Water Quality Board pursuant
to section 21.097 of the Water Code. If it does, and if there has been no
specific appropriation for that purpose, you further inquire about the point
in time at which the provision prevents the refund of bes to persons who have
mistakenly or unnecessarily paid fees put into the fund, i. e., at what point
are the funds to be considered “in the treasury”within themeaning of the
constitutional provision;
Subsection (c) of section 21.097 of the Water Code reads:
The board may delegate the administration
and performance of the certification function
to the executive director or to any other govern-
mental entity. The board may prescribe and
require the payment, by applicants for certifi-
cation, of reasonable fees based on the cost
of administering and performing the certifica-
tion function. All certification fees shall be
paid to the entity performing the certification
function. All fees collected by any state
agency shall be deposited in a special fund for
use by that agency in administering and per-
forming the certification function and shall not
be deposited in the general revenue fund of the
state.
p. 3072
The Honorable Hugh C. Yantis, Jr., page 2 (H-716)
All state money, including that in special funds, is subject to the
restrictions of article 8, section 6 of the Constitution unless exempted
by other provisions of the Constitution. The provision cannot be evaded
by the attempted arrest and diversion of state funds before they reach
the treasury. State v. Angelina County, 150 S.W.2d 379 (Tex. Sup. 1941);
McCombs v. Dallas County, 136 S.W.2d 975 (Tex. Civ.App. --Dallas 1940,
writ ref’d. ,140 S.W.2d 1109). Also see National Biscuit Co. vi State,of Texas,
135 S.W.2d 687 (Tex. Sup. 1940); Pickle v. Finley, 44 S.W. 480 (Tex. Sup.
1898); Attorney General Opinions H-211 (1974). H-154 (1973). H-138 (1973),
V-412 (1947), O-5739 (1944). O-2658 (1940). O-2355 (1940). Cf. Attorney
General Opinions K224 (1974). H-74 (1973). But the provisiondoes not
apply to trust funds belonging to others or to clearance funds of doubtful
ownership, even though the State Treasurer has been made the custodian
of them. Friedman v. American Surety Co. of New York, 151 S.W.2d 570
(Tex. Sup. 1941); Manion v. Lockhart, 114 S.W.2d 216 (Tex. Sup. 1938);
Rogers v. Daniel Oil & Royalty Co., 110 S.W.2d 891 (Tex. Sup. 1937).
However, even trust funds, if placed in - the Treasury by mistake, are
subject to it. Manion v. Lockhart, supra.
In our opinion the special fund into which the boat certification fees
are deposited does not constitute such a trust fund or clearance fund as
might escape article 8. section 6 of the Constitution. See Attorney General
Opinion H-154 (1973). Nor does the dedication or earmarking of the fund
for the use of the collecting agency in administering and performing the
certification process constitute an appropriation of the monies. Attorney
General Letter Advisory No. 46 (1973); Attorney General Opinions H-674
(1975). H-248 (1974). H-211 (1974). And in our opinion the statutory
direction that such receipts should not be deposited in the general revenue
fund of the state does no’more than reiterate the requirement that they be
deposited in a special‘fund. It could not arrest and divert them from the
state treasury because the receipts are clearly state money meant to be
used for state purposes. State v. Angelina County, supra. Besides,
the term “Treasury” refers not just to funds ib a particular vault belonging
to the Treasurer, but also to funds on deposit in various depository banks.
Boyett v. Calvert, 467 S.W.2d 205 (Tex. Civ.App. --Austin 1971, writ
ref’d., n. r. e. ), app. dismd. ,405 U.S. 1035.
In answer to your first question, we believe article 8, section 6 of the
Constitution applies to the special fund for boat certification fees.
p. 3073
.
The Honorable Hugh C. Yantis, Jr., page 3 (H-716)
Your second question is conditioned upon a determination that no
specific appropriation has been made for the purpose of refunding fees
erroneously paid into the special fund. We do not think section 21.097
of the Water Code, itself, makes an appropriati.on of the fund for any
purpose and we have found no reference to the matter in either the
current or upcoming general appropriation act sections specially
appropriating money to the Water Quality Board. But in both the 1973-74
General Appropriations Act, .Acts 1973, 63rd Leg., ch. 659, p. 1786.
and the 1975-76 General Appropriations Act, Acts 1975. 64th Leg., ch. 743.
p. 2416, this identical provision appears under article V:
Sec. 26. REFUNDS OF DEPOSITS. Any money
deposited into the State Treasury which is subject
to refund as provided by law shall be refunded from
the fund into which such money was deposited, and
so much as is necessary for said refunds is hereby
appropriated.
Ia Attorney General Opinion H-224 (1974) it was concluded that the
foregoing general appropriations act provision appropriated to the
Comptroller the money necessary to make refunds of collected mixed
beverage taxes which the general law indicated he should make to cities
and counties. By the same reasoning, the provision would serve to
appropriate to the Water CJuality Board from the special boat certifica-
tion fee fund the money necessary to reimburse persons entitled by
general law to refunds of money placed in the special fund. You have
not asked us about any specific fact situations and whether a particular
refund sought is authorized by general law. depends upon the facts of
the matter. See Attorney General Opinion M-1048 (1972). In any event,
there is an appropriation for such refunds and we, therefore, do not
reach your second question.
SUMMARY
The special fund into which boat certification
fees are deposited pursuant to section 21.097(c)
of the Water Code is subject to the provisions of
p. 3074
The Honorable Hugh C. Yantis, Jr., page 4 (H-716)
article 8, section 6 of the Constitution, but
the General Appropriations Act contains a
provision appropriating from such funds the
amounts necessary to make refunds authorized
by general law.
Very truly yours,
/ /Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
p. 3075