THE ATTORNEY GENERAL
OF TEXAS
October 5, 1990
Honorable Ann W. Richards Opinion No. JM-1230
State Treasurer
P. 0. Box 12608 Re: Applicability of State Funds
Capitol Station Reform Act, Government Code sec-
Austin, Texas 78711 tion 404.091, et sea., to fees
collected by the Board of Medical
Examiners (RQ-2115)
Dear Ms. Richards:
You have requested our opinion regarding the applic-
ability of the State Funds Reform Act, Texas Government Code
section 404.091, et sea to fees collected by the Texas
State Board of Medical Ekaminers.
Sections 404.091 through 404.094 provide:
s 404.091. Short Title
This subchapter may be cited as the State
Funds Reform Act.
§ 404.092. Definition
In this subchapter, "state agency" means
an office, institution, or other agency that
is in the executive branch of state govern-
ment, has authority that is not limited to a
geographical portion of the state, and was
created by the constitution or a statute of
this state, but does not include an institu-
tion of' higher education as defined by
Section 61.003, Education Code.
g 404.093. Applicability Of Subchapter;
Exemptions
(a) This subchapter applies to a state
agency only to the extent that it is not
otherwise required to deposit funds in the
treasury.
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Honorable Ann W. Richards - Page 2 (JM-1230)
(b) This subchapter does not apply to:
(1) funds pledged to the payment of
bonds, notes, or other debts if the funds are
not otherwise required to be deposited in the
treasury;
(2) funds held in trust or escrow for
the benefit of a person or entity other than
a state agency:
(3) funds set apart out of earnings
derived from investment of funds held in
trust for others, as administrative expenses
of the trustee agency:
(4) funds, grants, donations, and
proceeds from funds, grants, and donations,
given in trust to the Texas State Library and
Archives Commission for the establishment and
maintenance of regional historical resource
depositories and libraries in accordance with
Section 441.074; or
(5) funds under the management of the
secretary-treasurer of the Anatomical Board
of the State of Texas, as provided by Article
4589, Revised Statutes.
5 404.094. Funds to be Deposited in Treasury
(a) Fees, fines, penalties, taxes, charges,
gifts, grants, donations, and other funds
collected or received by a state agency under
law shall be deposited in the treasury,
credited to a special fund or funds, and
subject to appropriation only for the purposes
for which they are otherwise authorized to be
expended or disbursed. A deposit shall be
made at the earliest possible time that the
treasury can accept those funds, but not
later than the third business day after the
date of receipt. However, if an agency
determines that for seasonal or other ex-
traordinary reasons deposits cannot be made
by the third business day after the date of
receipt, the agency shall provide written
notice of the determination to the state
auditor and treasurer with an explanation of
the circumstances that require the delay. If
Honorable Ann W. Richards - Page 3 (JM-1230)
the state auditor finds that an agency has
not complied with this subsection, the state
auditor shall make an estimate of any result-
ing financial loss to the state, taking into
consideration compliance costs that would
have been additionally incurred by the
agency, and report the amount to the legisla-
tive audit committee, the governor, and the
treasurer.
(b) Money that is required by this sub-
chapter or by another law to be deposited in
the treasury shall be deposited to the credit
of the general revenue fund unless the money
is expressly required to be deposited to
another fund, trust fund, or special account
not in the general revenue fund. This
subsection does not affect the authority of
the comptroller or the treasurer to establish
and use accounts necessary to manage and
account for state revenues and expenditures.
The Medical Practice Act, article 4495b, V.T.C.S.,
creates two funds within the Board of Medical Examiners.
Section 3.10(a) thereof provides:
(a) All annual reaistration fee c llected
bv the board shall be DlaCed in Theo State
Treasurv to the credit of the medical reais-
tration fund. The fees deposited to this
special fund shall be credited to the appro-
priations of the board and may be spent only
as provided by then General Appropriations
Act, this Act, or other applicable statutes.
Money in that fund may be used by the board
and under its direction in the enforcement of
this Act, the prohibition of the unlawful
practice of medicine, the dissemination of
information to prevent the violation of the
laws, and the prosecution of those who
violate the laws. All distributions from the
fund may be made only upon written approval
of the secretary-treasurer of the board or
his designated representative, and the
comptroller shall upon requisition of the
board from time to time draw warrants upon
the State Treasurer for the amounts specified
in the requisition. (Emphasis added.)
Section 2.09(k) provides:
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Honorable Ann W. Richards - Page 4 (JM-1230)
(k) The board shall establish by rule a
reasonable charge for those fees not specifi-
cally determined but authorized by this Act.
The board may not waive collection of any fee
or penalty. The board shall place all fees
received under authority of this Act, not
otherwise specified, into the medical licens-
lna f nd The board is authorized and shall
by anzua; budget determine e of
handlina the funds and the purpose, consis-
tent with this Act, for which the same may be
used. The budgeted expenses authorized by
the board shall not be a charge upon the
general revenue of the state nor paid from
the general revenue. (Emphasis added.)
Section 3.10(a) clearly requires that the board place
"[a]11 annual registration fees . . . in the State Treasury
to the credit of the medical registration fund." Thus,
irrespective of the State Funds Reform Act, the Medical
Practice Act itself directs that annual registration fees be
deposited in the State Treasury.
Section 2.09(k) is silent as to the proper depository
for fees that comprise the "medical licensing fund."
The statute states merely that the Board of Medical -Examin-
ers "shall . . . determine the manner of handling the
funds . . . .I' On its face, this language is not inconsis-
tent with the deposit of these funds in the Treasury, and,
absent further inquiry into the relevant legislative his-
tory, a convincing argument could be made that the State
Funds Reform Act applies to the "medical licensing fund."
Indeed, both the State Auditor and the State Treasurer have
made administrative determinations that fees attributable to
the medical licensing fund must be placed in the Treasury.
The rather convoluted history of that statute, however,
requires a different conclusion.
As originally enacted in 1981, the State Funds Reform
Act, then article 4393c, V.T.C.S., contained the following
five exemptions:
Sec. 3. (a) This Act applies to each
state agency only to the extent that it is
not otherwise required to deposit funds in
the state treasury.
(b) This Act does not apply to:
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Honorable Ann W. Richards - Page 5 (JM-1230)
.
(1) funds pledged to the payment of bonds,
notes, or other debts if the funds are not
otherwise required to be deposited in the
state treasury;
(2) funds held in trust or escrow for the
benefit of any person or entity other than a
state agency:
(3) funds set apart out of earnings
derived from investment of funds held in
trust for others, as administrative expenses
of the trustee agency:
(4) funds, grants, donations, and proceeds
from funds, grants, and donations, given in
trust to the Texas State Library and Archives
Commission for the establishment and mainte-
nance of regional historical resource deposi-
tories and libraries in accordance with
Section 2A, Chapter 503, Acts of the 62nd
Legislature, Regular Session, 1971, as
amended (Article 544213, Vernon's Texas Civil
Statutes); or
(5) the denosit of funds for state aaen-
ties subject to review under the Texas Sunset
&& (Article 5429k, Vernon's Texas Civil
Statutes) for 1981. which shall be determined
bv each aaencv's enablina statute.1
Acts 1981, 67th Leg., ch. 835, at 3189-90 (emphasis added).
The Board of Medical Examiners is an agency that was
subject to review under the Texas Sunset Act in 1981. As a
result, the State Funds Reform Act, at least initially, was
not applicable to the board.
In 1985, the statute was amended three times. One
amendment, Acts 1985, 69th Leg., ch. 479, 5 93, at 1706,
simply changed the statutory reference in the fifth
1. This provision was added as a house floor
amendment. Debate on H.B. 1623 on the Floor of the House,
67th Leg. (Apr. 21, 1981) (tape available from House
Technical Services).
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Honorable Ann W. Richards - Page 6 (JM-1230)
.
exemption to the current designation. Chapter 479 explicitly
states that it is a non-substantive revision. UL.61, at
1652-53. Another amendment, Acts 1985, 69th Leg., ch. 485,
5 8, at 2057-58, was part of a bill relating to the State
Anatomical Board, and it amended the State Funds Reform Act
by adding a sixth exemption.
Finally, the 69th Legislature amended the Treasury Act,
and as a part thereof, the State Funds Reform Act. As
adopted therein, the portion regarding exemptions, sec-
tion 4.003 of the act, provides:
(a) This chapter applies to a state agency
only to the extent that it is not otherwise
required to deposit funds in the treasury.
(b) This chapter does not apply to:
(1) funds pledged to the payment of
bonds, notes, or other debts if the funds are
not otherwise required to be deposited in the
treasury;
(2) funds held in trust or escrow for
the benefit of a person or entity other than
a state agency:
(3) funds set apart out of earnings
derived from investment of funds held in
trust for others, as administrative expenses
of the trustee agency; or
(4) funds, grants, donations, and
proceeds from funds, grants, and donations,
given in trust to the Texas State Library and
Archives Commission for the establishment and
maintenance of regional historical resource
depositories and libraries in accordance with
Section ZB, Chapter 503, Acts of the 62nd
Legislature, Regular Session, 1971 (Article
5442b, Vernon‘s Texas Civil Statutes).
Acts 1985, 69th Leg., ch. 240, at 1214-15.
It is not clear why the exemption concerning the 1981
sunsetted agencies was omitted from chapter 240. The fact
that it was included in chapter 485 (relating to the Anatom-
ical Board), a substantive revision, however, means that, in
1985, the exemption continued to be a part of the State
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Honorable Ann W. Richards - Page 7 (JM-1230)
Funds Reform Act, and, as such, it removed the Board of
Medical Examiners from the purview of that statute.2 This
result is supported by our discussion in Attorney General
Opinion JW-479 (1986).
In 1987, the legislature codified the State Funds
Reform Act as part of title 4 of the Government Code. The
portion relating to the exemptions, section 404.093 of the
code, included the Anatomical Board exception, but omitted
the exception regarding the agencies sunsetted in 1981. The
provision, as adopted, states:
(a) This chapter applies to a state agency
only to the extent that it is not otherwise
required to deposit funds in the treasury.
(b) This chapter does not apply to:
(1) funds pledged to the payment of
bonds, notes, or other debts if the funds are
not otherwise required to be deposited in the
treasury:
(2) funds held in trust or escrow for
the benefit of a person or entity other than
a state agency;
(3) funds set apart out of earnings
derived from investment of funds held in
trust for others, as administrative expenses
of the trustee agency;
(4) funds, grants, donations, and
proceeds from funds, grants, and donations,
given in trust to the Texas State Library and
Archives Commission for the establishment and
maintenance of regional historical resource
depositories and libraries in accordance with
Section 441.074; or
2. Furthermore, section 2 of chapter 240 repeals
certain other statutes, but not the exemption for sunsetted
agencies. In addition, it declares that "any amendment,
revision, or reenactment if any of these statutes by the
69th Legislature is preserved and given effect as a part of
this bill." Id. at 1215.
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Honorable Ann W. Richards - Page 8 (JM-1230)
(5) funds under the management of the
secretary-treasurer of the Anatomical Board
of the State of Texas, as provided by Article
4589, Revised Statutes. (V.A.C.S. Art.
4393-1, Sec. 4.003.)
Acts 1987, 70th Leg., ch. 147, g 1, at 358. Chapter 147
specifically declares that it "is intended as a recodifi-
cation only, and no substantive change in the law is intended
by this Act." Acts 1987, 70th Leg., ch. 147, 5 2, at 536.
Nevertheless, title 4 of the Government Code, as issued in
1990 and as quoted at the beginning of this opinion, con-
tains no reference to the now apparently forgotten exemption
for agencies sunsetted in 1981.
Title 4 of the Government Code, as presently consti-
tuted, fails to offer any clue that the State Funds Reform
Act is inapplicable to the Board of Medical Examiners, and
absent examination of the historical circumstances, we, like
the auditor and the treasurer, would certainly determine
that the act applies to the board. The supreme court,
however, has recently made clear that this is not a course
available to us. In Johnson v. Citv of Fort Worth, 774
S.W.2d 653 (Tex. 1989), the court declared:
When a conflict exists between a former
statute and a revision made pursuant to the
legislature's directive to the Texas Legisla-
tive Council to make a nonsubstantive revi-
sion of the statutory law, the former statute
will control.
Id. at 654-55; see also Minton v. Perez, 783 S.W.2d 803, 805
(Tex. App. - San Antonio 1990, no pet.)
Accordingly, we are compelled to conclude that the
State Funds Reform Act is not applicable to the Texas State
Board of Medical Examiners.
SUMMARY
The State Funds Reform Act, Texas Govern-
ment Code section 404.091, et se ., is not
applicable to fees collected by the Texas
State Board of Medical Examiners. All annual
registration fees collected by the board
must, however, be deposited in the State
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.
Honorable Ann W. Richards - Page 9 (JM-1230)
Treasury pursuant to section 3.10(a) of the
Medical Practice Act, article 4495b, V.T.C.S.
J-h
Very truly yo ,
.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
IOU MCCRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by Rick Gilpin
Chairman, Opinion Committee
p. 6547