Untitled Texas Attorney General Opinion

The Attorne,y General of Texas JIM MATTOX Ap.ril18, 1986 Attorney General Sucmme Court Sulldina Mr. Marvin J. Titrman Opinion No. JM-479 P.~b. BOX 12548 - Executive Director Austin. TX. 78711. 2548 Texas Surplus Property Agency FCC?.:Application of the State 5121475.2501 P. 0. Box 8120 Funds Reform Law to the Texas Telex 9101874.1367 Telecopier 512/475.0266 San Antonio, Texas 78208 Surplus Property Agency Dear Mr. Titzman: 714 Jackson, Suite 700 Dallas, TX. 75202-4508 21417428944 You have asked whether the funds of the Texas Surplus Property Agency collected as charges, fees, interest and returns from invest- ments are subject to the State Funds Reform Act of 1981 (now chapter 4 4824 Alberta Ave., Suite 160 of the Treasury Act, article 4393-1, V.T.C.S.). El Paso, TX. 79905.2793 915/533-3484 The Texas Surplus Property Agency was created in 1971 by the enactment of article 6252-6b, V.T.C.S., to constitute the "designated" - 1 Texas, Suite 700 state agency for purposes of the Federal Property and Administrative ,us,on, TX. 77002-3111 Services Act of :;949, as amended, 40 U.S.C. 484(j). That federal 713i2236S86 statute authorizea the federal administrator of general services to donate property to the various states for redistribution to public agencies and educational or public health institutions or organiza- 806 Broadway, Suite 312 Lubbock, TX. 79401-3479 tions. 40 U.S.C. 484(j)(2)(3). The federal law specifies that where 806,747.5238 the "designated" state agency is allowed by state law to collect service charges from recipients of donated property, the method of establishing the charges is to be set out in the state plan of 4309 N. Tenth, Suite B McAllen, TX. 78501-1685 operation submitted to the Administrator, but the federal statute does 512/682-4547 not specify what is to be done with the charges collected. Federal regulations provide guidelines for some uses, but they do not conflict with Texas law. 41 C.F.R. 101-44.202(c)(S). 200 Main Plaza. Suite 4M) San Antonio, TX. 782052797 51212254191 There is no federal provision of which we are aware that prohibits the deposit of such funds in the state treasury. However, article 6252-6b. ,the Texas statute establishing the Surplus Property An Equal OpportunityI Agency, provides d,nsubsections 4(L) and 4(m): Affirmative Action Employer (1) The agency may assess a service and handling; charge or fee for the acquisition, warehousing, distribution, or transfer by the agency ,rud, in the case of real property, such charges and fees shall be limited to the masonable administrative costs of the agency incurret. in effecting transfer. Receipts from such charges or fees are authorized to be p. 2192 , Mr. ElarvinJ. Titman - Page 2 (JM-479) . available as needc,d for the operation of the agency. (m) The charges and fees shall be deposited in a Service Charge Trust Fund. Such fund shall not be a part of the Strce Treasury or State's assets. Excess moneys in tte Fund above normal operation expenses and appropriate reserve may be invested in State or municiIa1 bonds or in such financial institutions as ha1.u:been approved by the State Treasurer. The interest or earnings accruing thereby shall likewlee be an asset of the Service Charge Trust Fund and shall not be a part of the State Treasury or State's assets. If the Fund is used at any tilne for purposes other than authorized in this 4ct, by the State or any other agency or inatmxt!ntality thereof, such money shall accme intemst as if it were invested as provided above. (Enphasis added). The State Funds Reform Act, article 4393-1, section 4.004(a), provides, generally, that 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 tt'easury,credited to a special fund or funds, and subject to appropriation only for the purposes Ilor which they are otherwise authorized to be expended. "State agency" is defined to :.nclude a department, commission, board, office, institu- tion, or other agency that is in the executive branch of state government, [that has authority] not limited to a geographical portion of the state, and that was created by the constitution or a statute of the state. . . . Id. 14.002. The Texas Surplus Property Agency fits that description. See also Attorney General Opinion JM-445 (1986). You suggest that the State Punds Reform Act does not apply to your agency, first, because rules of statutory construction specify that specific provisions control general ones and that repeals by implication are not favored; second, because "validating" acts are to be liberally construed; and, third, because the funds are held in tmst for "participating doneeel." p. 2193 Mr. Marvin J. Titzman - Page 3 (JM-479) Rules of statutory construction are now incorporated in chapter 311, subchapter C, of the Gov,e:cment Code (a non-substantive revision of the law) enacted in 1985. See Acts 1985, 69th Leg., chs. 479, 480, at 3202, 3363. Section 311.02~~rovides: (a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both. (b) If the con:flict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enact- ment and the manife;e intent is that the general provision prevail. (Emphasis added). In our opinion, the State Funds Reform Act manifests an intent that its general provisions prevail over any conflicting provisions of previously enacted specific provisions found elsewhere. -See McInnis v. State, 603 S.W.2d 179, 183 (Tex. 1980). /h In language carried into the Treasury Act from the original State Funds Reform Act enactment (article 4393c, V.T.C.S., repealed), section 4.003(a) of the Treasury Act declares, "this chapter [the State Funds Reform Act] applic!sto a state agency only to the extent that it is not otherwise requkred to deposit funds in the treasury." We believe this passage evidences a legislative intent to reach all funds in the hands of state al;enciesother than those the State Funds Reform Act itself excuses fr.om compliance, regardless of contrary provisions that might be found in the enabling acts of the agencies. To the extent that it conflicl:swith the State Funds Reform Act, the Texas Surplus Property Statute has been repealed. Cf. Attorney General Opinion H-82 (1973) (anandatory and original actsr In response to the "validating act" argument, if it be granted that the enactment of article 6252-6b. V.T.C.S., was an act "validating" previous legislative authorizations in the form of concurrent resolutions, see se-don 5 of article 6252-6b. and if it be granted that "validating acts should be liberally construed, see Perkins v. State, 367 S.W.2d 140, 144-45 (Tex. 1963), it does not follow that acts "validated" :annot be repealed by later enactments, either expressly or by implication. The legislature may exorcise all legislative power not denied or prohibited to it by the constitution. Perkins v. State, supra. The State Funds Reform Act was abbreviated in some respects when it was transferred to the Trea!:uryAct. For example, the original act declared that five specific c,ircumstances excused agencies from its p. 2194 Mr. Marvin J. Titzman - Page 4 (m-479) requirements although section 4.003(b) of the Treasury Act reflects only four of them. However: section 2 of the bill enacting the Treesury ACE, after expressly repealing the original State Funds Reform hct, article 4393c, V.T.C.S., states, "any amendment, revision, or reenactment of any of these statutes by the Sixty-ninth Legislature is preserved and given effect as a part of this bill." Acts 1985, 69th Leg., ch. 240, at 2078, 2105. The provision is significant because article 4393c was revised and amended by the Sixty-ninl:hLegislature and a sixth exclusionary circumstance was added. See Acts 1985, 69th Leg., ch. 479, 693, at 3202, 3328; Acts 1985, 69thLeg., ch. 485, P8, at 4102, 4110. As a consequence, all six State Funds Reform Act exclusions are to be given effect "as a part of" the Treasury Act. They make the the State Funds Reform Act inapplicable 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 state treasury; (2) funds held in trust or escrow for the benefit of any perscn or entity other than a state agency; (3) funds set r.part out of earnings derived from investmznt 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 Ilibraryand Archives Commission for the establishment and maintenance of regional historical resource depositories and libraries in accordance wiLh Sect:lon2A. Chapter 503, Acts of the 62nd Legislatwe, Regular Session, 1971, as amended (Article 5442b. Vernon's Texas Civil Statutes); or (5) the deposit of funds for state agencies subject to review .under the Texas Sunset Act (Article 5429k. Vernon's Texas Civil Statutes) for 1981, which shall tme.determined by each agency's enabling statute; or (6) funds undr:r the management of the secretary-treasurer of the Anatomical Board of the State of Texas, 8s provided by Article 4589, Revised Statutes. p. 2195 Mr. Marvin J. Titzman - Page 5 (23-479) You submit that the funds collected by the Texas Surplus Property Awncy , and earnings thereon, are funds held in trust for the benefit of persons other than a state agency within the meaning of the second and third exceptions above. There is little in either the Texas statute or the federal act to support such an argument. Unlike property donated by the federal government for distribu- tion, the funds collected as service charges and handling fees by the Texas Surplus Property Agency are to be used "for the operation of the agency,'Inot for distribution to recipients. V.T.C.S. 6252-6b. 54Q). The same is true of earnings realized from surplus fees and charges. Id. 54(m). In our opinion, the Service Charge Trust Fund established Fsubsection 4(m) is a trust for the benefit of a state agency, and not one for the benefit of other persons. Inasmuch as we think t,one of the State Funds Reform Act exceptions apply, we advise that the funds of the Texas Surplus Property Agency collected as c'harges,fees, interest and rerurns from investments are subject to the State Funds Reform Act. jiU MM A RP The funds of the 'TexasSurplus Property Agency collected as charges, fees, interest and returns form investments ax'e subject to the State Funds Reform Act. -JIM MATTOX Attorney General of Texas JACK HIGHTOWER First Assistant Attorney Gene:ral MARY KELLER Executive Assistant Attorney I:c!neral ROBERT GRAY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Bruce Youngblood P Assistant Attorney General p. 2196