February17. 1976
The Honorable Clayton T. Garrison Opinion No. H-781
Executive Director
Texas Parks & Wildlife Department Re: Use of certain
John H. Reagan Building license fees by the
Austin, Texas 78701 Parks and Wildlife
Department for its
Seafood Marketing
Program.
Dear Mr. Garrison:
YOU have asked our opinion concerning article 978f-3c,
Vernon's Texas Penal Auxiliary Laws, which empowered and
directed the Texas Parks and Wildlife Commission to develop
a seafood marketing program. This article was repealed by
the passage of the Texas Parks and Wildlife Code, effective
September 1, 1975, but a similar provision is found in sec-
tion 12.009 of the new Code, which provides:
Sec. 12.009. Seafood Consumption Program
(a) The department shall develop and
administer a market promotion program to
foster and expand the sale and consumption
of seafood by the public. The department
may use its own personnel or contract for
personnel and use only state,funds or state
funds in conjunction with federal or private
funds.
(b) Forty percent of the funds collected
from commercial fisherman's license fees, 20
percent of wholesale fish dealers' license
fees and wholesale truck dealers' fish license
fees, and 50 percent of shrimp house operators'
license fees shall be used by the department
in carrying out the program required by this
section.
p. 3296
The Honorable Clayton T. Garrison- page 2 (H-781)
you question the setting aside of the various license
monies since this percentage allocation may have conflicted
with article 978f-3a, section 6, Vernon's Texas Penal Auxil-
iary Laws, which read in part:
[Nlo funds accruing to the State of Texas
from hunting license fees, fishing
license fees, commercial fishing boat
license fees, oyster license fees, net
license fees, trawl license fees, seine
license fees, . . . shall be diverted
for any other purposes than for making
necessary studies and management of fish
and game resources of this State and for
the expansion and development of additional
opportunities of hunting and fishing in
State-owned land and waters for the
benefit of the public wherever practicable
and to embrace wherever feasible the
principle of multiple use of our land
and waters for better hunting and fishing
opportunities.
Section 6 has now been replaced by sections 13.313, 83.001
and 83.003 of the Texas Parks and Wildlife Code, but the
specific portion of section 6 quoted above does not appear
in the new Code.
In connection with these statutes, you ask:
1. Is the Parks and Wildlife Department
required to allocate the percentages of
the license fees specified by Article
978f-3c, Vernon's Texas Penal Auxiliary
Laws [section 12.009, Texas Parks and
Wildlife Code], to the Seafood Marketing
Program, subject to specific legislative
appropriation; Does the language in
Article 978f-3a, Vernon's Texas Penal
Auxiliary LaWS, leave entirely to the
discretion of the Commission and/or
Department, whether or not such program
will be carried out and the types of
seafood products to be affected?
p. 3297
The Honorable Clayton T. Garrison - page 3 (H-781)
2. If the Department must reserve the
percentages of fees for a seafood mar-
keting program as indicated by article
978f-3c [section '12.009, Texas Parks
and Wildlife Code], should such license
receipts so allocated, in excess of the
amount expended by the Department for the
marketing program, be reserved in the
fund balance, subject to future legisla-
tive appropriation for the Seafood
Marketing Program?
3. If the Legislature fails to appro-
priate funds provided for by article
978f-3c, Vernon's Texas Penal Auxiliary
Laws [section 12.009, Texas Parks and
Wildlife Code], are they available to be
used for other purposes authorized by law
and for which appropriations are made?
As we interpret your questions, you have asked for our
opinion concerning fees collected both prior and subsequent
to the passage of the new Parks and Wildlife Code. In regard
to the period prior to the new Code, we note that article
978f-3a was enacted in 1963 (see Acts 1963, 58th Leg., ch.
58, p. 104) and the questionaanguage-of section 6 thereof
had not been amended at the time of the passage of article
978f-3c, the Seafood Marketing Program Act, in 1967. See
Acts 1967, 60th Leg., ch. 173, 5 5, p. 363.
If the two statutory provisions are considered inconsis-
tent or in conflict, then the latter will control. Code
Construction Act, V.T.C.S. art. 542913-2, 5 3.05. Accordingly,
the provision of the seafood marketing enactment (article
978f-3c) prevailed over article 978f-3a and the Parks and
Wildlife Department was required to comply with the require-
ment to set aside percentages of certain licensing fees for
the marketing program.
p. 3298
’ ’ .
. -
The Honorable Clayton T. Garrison - page 4 (H-781)
Moreover, article 978f-3a (together with section 6) was
a general statute setting up the Parks and Wildlife Depart-
ment and generally providing for its structure, its powers
and its duties. On the contrary, article 978-3c was a
specific statute dealing with the particular subject of a
seafood marketing development program and so prevailed over
the general statute setting up the Department Code. Construc-
tion Act, V.T.C.S. art. 5429b-2, S 3.06. This statutory
construction rule, a specific provision prevailing over a
general enactment, lends additional weight to our opinion
that your Department was required to comply with the pro-
visions of 978f-3c and develop and support the seafood
marketing program by the proper allocation and use of the
license fees collected.
Accordingly, both before and after the passage of the
Code, you had no discretion insofar as the setting aside of
the appropriate amount of license fees to institute and
implement a seafood marketing program as required by statute.
You do have discretion, of course, in designing and struc-
turing an appropriate program so long as the legislative
dictate-- that the promotion shall "further and expand the
consumption of seafood by the public"--is satisfied.
You further observe that more monies have been collected
from the named fees of section 12.009 than the Legislature
has appropriated. You ask if these surplus monies, over and
above the appropriated funds, can be used for purposes other
than the seafood marketing program. Unless the Legislature
should amend section 12.009 of the Parks and Wildlife Code
to permit a different usage of the pertinent fees, the
statutorily allocated monies should be retained to be used
as the Legislature has directed, if and when the Legislature
sees fit to appropriate such segregated fees. Attorney
General Opinions H-528 (1975) and M-1084 (1972). Such fees
cannot be used for other departmental uses.
p. 3299
The Honorable Clayton T. Garrison - page 5 (H-781)
SUMMARY
The Parks and Wildlife Department is
required to set aside forty percent of
the funds collected from Commercial
Fisherman's License fees, twenty percent
of the funds collected from Wholesale
Fish Dealers' License fees and fifty
percent of the funds collected from
Shrimp House Operators' License fees
for use in a program to foster and
expand the sale and consumption of
seafoods by the public.
-Very truly yours,
Attorney General of Texas
Opinion Committee
jwb
p. 3300