. ‘:
2”
THE AYTORNEY GENERAL
OFTEXAS
AIlSTIN. TEXAS 78711
October 25, 1973
The Honorable Ralph D. Spencer, AIA Opinion No. H- 138
Executive Director
Texas Board of Architectural, Examiners Re: The necessity of legis-
2 02 Richmond Building lative appropriation of
1411 West Avenue Architects Registiatioxi
Austin, Texas 78701 Fund 109
Dear Mr. Spencer:
You have asked our opinion on several questions involving the recently
passed amendments to the Architects Registration law. (Laws 1973, 63rd
Leg., ch. 361, p. 801). The primary questlon is whether the Texas Board
of Arc~hitectural Examiners (hereinafter TBAE or the Board) has full
responsibility and authority for administering Architects Registration .Fund
No. 109 without regard to legislative appropriation. Most of your other
questions are premised on an affirmative answer to the first inquiry.
Prior to its amendment, Article 249a. $ 4(a), Vernon’s Texas Civil
Statutes, stated:
“All fees collected which are provided to be
charged by virtue of this Act shall be deposited in
the State Treasury to the credit of a special fund to
be known as ‘Architects Registration Fund, ’ and all
expendituies from this fund shall be on order of the
Texas Board of Architectural Examiners on warrants
issued by the State Comptroller for the purposes and
in the amounts fixed by the Legislature of Texas. All
disbursements from such fund shall be made only on
the written approval or order of the chairman or act-
ing chairman, and the secretary-treasurer of such
Board, and such disbursements shall not in any way
be a charge upon the General Revenue Fund of this
State. ” (emphasis added)
p. 657
.
‘.:
The Honorable Ralph D. Spencer, page 2 (H-138)
The same section, as amended by the 63rd Legislature, now states:
“All fees collected or money derived under
the provisions of this Act shall be received and
accounted for by the secretary-treasurer. All of
these funds which are received shall be paid weekly
to the State Treasurer, who shall keep this money
in a separate fund to be known as the Architects
Registration Fund. This fund shall be paid out only
by warrants of the State Comptroller, upon itemized
vouchers, approved by the chairman or acting chair-
man and attested by the secretary-treasurer of the
Board. Disbursements shall not in any way be a
charge upon the General Revenue Fund of this State. ”
(emphasis added)
In determining whether the Legislature surrendered appropriation
control over the Architects Registration Fund 109, the .two important
changes in the law are the omission of the requirement that warrants be
“for the purposes and in the amounts fixed by the Legislature of Texas”
and the substitution of “to the State Treasurer” for “in the State Treasury”
in providing for the disposition of fees collected.
The Texas Constitution specifically restricts then expenditure of
treasury funds to those appropriated by the Legislature. Article 8, § 6,
provides, “No money shall be drawn from the Treasury.but in pursuance
of specific appropriations made by law; nor shall any appropriation be
made-for a longer term than two years. . . .”
The Texas Supreme Court has made it clear that there are instances
where funds held by the Treasurer are not treasury funds and, therefore,
need not be appropriated by the.Legislature. The cases which have come
before the Court involved the escheat laws [ Manion v. Lockhart, 114 S. W.
2d 216 (Tex .1938)] and the unemployment compens
American Surety Co. of New York, 151 S. W. 2d 570 (Tex. 19411. Both in-
volved money which was held by the treasurer for possible (Manion, supra)
or ultimate (Friedman, s. )distribution to an identifiable group of people.
p. 658
The Honorable Ralph D. Spencer, page 3 (H-138)
See Attorney General Opinion WW-565 (1959). The Court found the Treasurer
to be a trustee.
Architects Registration Fund 109, on the other hand, is used for the
general administrative expenses of a state agency. It has little, if any,
resemblance to a trust and, notwithstanding the omission of the language con-
cerning legislative~appropriation and the substitution of the word “Treasurer”
for the word “Treasury, ” we do not believe the Legislature intended to estab-
lish Fund 109 as a trust fund.
There are other indications of a legislative intent to requixe continued
legislative appropriation supervision over TBAE. The amendments to the
Architects Registration Law finally passed the Legislature on May 19, 1973.
The General Appropriations Act (House Bill 139, 63rd Leg. ) was passed five
days later and contained.appropriations for TBAE from Architects Registra-
tion Fund No. 109. ~~ A specific legislature is deemed to be motivated by the
same mind and policy in all it does, and every effort should be made to con-
strue acts of the same legislature so that they are harmonious with each other.
Barnes v. State, 170 S. W. 548 (Tex. Crim. 1914)., We do not believe that the
63rd Legislature abolished the necessity for appropriation to the TBAE by
general law only to enact an appropriation for the Board less than a week later.
Another indication of legislative intent can.be found in the House’s tape
recordings of the committee hearings on H. B. No. 1204, the amending Act.
Of course, the views of a legislative committee are not controlling, but they
are entitled to consideration. National Carloading-Gorporation v. Phoenix-
El Paso Express, 178 S. W. 2d 133 (Tex. Civ. App. , El Paso, 1943) aff’d 176
S.W. 2d 564, cert. denied 322 U.S. 747 (1944). During those hearings it was
specifically represented to the committee that then amendment would not per-
mit the Board to bypass the appropriation procedures. It was stated that the
Board did not want any change and would continue to go through the normal
appropriation process.
Given the dissimilarity of Architects Registration Fund 109 to the funds
involved in Manion, supra. , and Friedman, supra., the inclusion of TBAE
in the General Appropriations Bill and the testimony given at the committee
hearings, it is our opinion that TBAE still is subject to appropriation by the
Legislature. Because we have reached our decision on the basis of legislative
p. 659
The Honorable Ralph D. Spencer, page 4 (H-138)
intent, we do not reach the question whether, constitutionally, the Legis-
lature could provide for the expenditure of money from Architects Regis-
tration Fund 109 without legislative appropriation.
Other of your questions, which are not necessarily premised on a
contrary answer to the appropriations question,are:
1. In contracting for services or supplies, office
space, equipment, etc., does T.B.A.E. have
authority to act independently or must it con-
tinue to requisition the Board of Control who,
in turn, will advertise for competitive bids and
contract for T. B. A. E. ?
2. Does 5 3(d) of H. B. 1204 empower T. B. A. E, .to
incur legal and court costs necessary in enforce-
ment actions?
3. Will the fact that ten percent of the Architects
Registration Fund 109 is no longer contributed
to the General Revenue Fund cause T. B. A. E.
to be subject to charges for services from ~the
State Treasurer, the State Auditor and other
state officials and agencies?
Article 664-3, $ 5, Vernon’s Texas Civil Statutes, states in part:
“The Board [of Control] shall purchase all
suppli~es, materials, services, and equipment used
by each Department of the State Government . . .
such supplies to include furniture and fixtures,tech-
nical instruments and books, and all other things
required by the different departments or institutions,
including perishable goods. The Board is given legal
authority to delegate purchasing functions to agencies
of the State. . . . ”
p. 660
The Honorable Ralph Di Spancer, page 5 (H-138)
In accordance with this section, TBAE must continue to requisition
the Board of Control for services, supplies, equipment, etc.
Your question concerning legal fees is answered by Art. 249a, $$
3(d~) and 5(c), as amended by H. B. 1204 (1973). which provide:
3(d) “The Board shall cause the prosecution of
all persons violating any of the provisions of this Act,
and may,incur the expense reasonably necessary in
that behalf. ”
5(c) “The Texas Board of Architectural Examiners
is hereby empowered and authorized to enforce such rules
and regulations, the provisions of this Act, and the statutes
of this state pertaining to the practice of architecture . . . .
The Board may be represented by the Attorney General,
the District Attorney, or the County Attormy, and by other
counsel when necessary. ”
We believe these provisions give TBAE authority to incur legal and court costs
in enforcement actions. Any funds used for these purposes would come from
item 9 of the current appropriation for the Board which provides money for
“expenses for enforcement purposes. ” House Bill No. 139, Article III, p. 21
Of course, money may not be spent for outside legal counsel unless the require-
ments of Article V $40 and 41 of the General Appropriations Act are met.
The failure of TBAE to continue to contribute to the general revenue fund
will have no effect on charges to the Board for services performed by other
state agencies. As in the past, some services will be provided without charge
and some will require interagency agreements, but the charges or lack of reim-
bursement do not depend on the Board’s contribution or failure to contribute to
general revenue.
SUMMARY
The Texas Board of Architectural Examiners
may spend funds only as authorized by legislative
appropriation, notwithstanding 1973 amendments to
p. 661
The Honorable Ralph D. Spencer, page 6 (H-138)
Article 249(a), V. T. C. S. , by House Bill 1204
(Laws 1973, 63rd Leg., ch. 361, p. 801).
Very truly yours,
JOHN L. HILL
c/ Attorney General oi Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 662