Untitled Texas Attorney General Opinion

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 p. 718