The Honorable W. D. “Chris” Chrisner Opinion.No. H- 154
Chair~man, Performance Certification
Board for Mobile Homes Re: Can the Department
\
Box 12157, Capitol Station expend all of the money
Austin, Texas 78711 raised by fees set by
the Board and related
Dear Mr. Chrisner: questions
According to your letter requesting our opinion, the ~Performance
Certification Board for Mcbile Homes, pursuant to the Texas Mobile Homes
Standards Act (Article 5221f, Vernon’s Texas Civil Statutea, as amended,
Acts 1971, 62nd Leg., ch. 896, p. 2765), adopted a schedule of fees sufficient
to pay the costs incurred in the enforcement of the Act. Nevertheless, then
63rd Legislature in iLs Appropriations Act for 1974 and 1975 (House Bill
139) appropriated an amount for this work less than the income that will
be available.
You ask:
“Can the department expend all of the money
raised by fees set by the Board? ”
Article 5221f, V. T. C. S. , (h ereafter “the Act”) provides generally for
the establishment of standards for the manufacture of mobile homes and their
enforcement by a Performance Certification Board It authorizes the Bureau
of Labor Statistics to issue a certificate of acceptability to mobile home
manufacturers.
Section 8 empowers the Bureau to inspect mobile homes at the place of
manufacture and it is authorized by § 10 to have its inspectors travel within
or without this state for purposes connected with the Act.
Section 11 of the Act provides in part:
p. 716
The Honorable W. D. “Chris” Chrisner, page 2 (H-154)
“(a) The board [Performance Certification Board]
with the advice of the department [of Labor Statistics]
shall establish a schedule of fees to pay the cost
incurred by the department for the work relating to
the administration and enforcement of this Act . . .
. . .
‘l(d) All fees shall be paid to the state treasury and
placed in a special account for the use of the department
in the administration and enforcement of this Act. ”
The Appropriations Act for fiscal 1974 and 1975, aupra, at p. III-95
makes a specific appropriation for administrations of the Mobile Home
Standards Act to be financed from “Texas Mobile Homes Standards Fund
No. 82”.
The Constitution of Texas, in 5 6 of Article 8, provides:
“No money shall be drawn from the Treasury but in
pursuance of specific appropriations made by law
. . . I,
A distinction may be made between funds deposited in the Treasury and
those paid to the Treasurer, a deposit of the latter type being aubj.ect to the
construction that it constitutes the Treasurer a truatae who may pay the funds
to the person entitled to them without specific appropriation. Manion v.
Lockhart, 114 S. W. 2d 216 (Tex. 1938); Friedman v. American Surety Co. of
N. 151 S. W. 2d 570 (Tex. 1941)
However, there is nothing about the fees collected under the Act to
indicate that they are to be held in trust, and it is our opinion that they may
not be withdrawn from the Treasury without a specific appropriation. Compare
Attorney General Letter Opinions No. MS-13 (1953) and Attorney General
Opinions WW-442 (1958) and H-138 (1973).
We are not unmindful of those decisions holding that where, in a general
statute, funds are appropriated, it is unnecessary that they be appropriated
in the Appropriations Act. Pickle v. Finlqr , 44 S. W. 480 (Tex. 1898);National
Biscuit Company v. State of Texas, 135 S. W. 2d 687 (Tex. 1940). In the last
cited-case the Supreme Court said:
p. 717
.
The Honorable W. D. “Chris” Chrisner, page 3 (H-154)
‘1. . . An appropriation can be made for all funds
coming from certain sources and deposited in a special
fund for a designated purpose. In such instances, it is
not necessary for the appropriating Act to name a cer-
tain or even a maximum sum . . . ” (135 S. W. 2d at 693)
However, we are unable to find in Article 5221f, V.T.CS , any language
of appropriation. The language of $ 1 l(d), which we have quoted above, does
no more than to “earmark” the funds for the particular purpose; compare
Attorney General Letter Advisory No. 46 (1973). Furthermore, a statutory
appropriation may be valid for no more than two years. Article 8, 5 6 of the
Constitution of Texas; Attorney General Letter Advisory No. 46 (1973)and
cases there cited.
We are of the opinion, therefore, that your question should be answered:
That the Department may not expend unappropriated money raised by fees set
by the Board; it is limited to the amount appropriated by the Legislature.
SUMMARY
Even though the,fees paid into the Treasury pursuant
to the Texas Mobile Homes Standards Act may exceed the
amount appropriated by the Legislature for expenses of
enforcing the Act, the Board of Labor Statistics is limited
to the amount so appropriated and may not expend unapp-
ropriated funds for that purpose.
JOHN L. HILL
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
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