Honorable Robert S. Calvert

Comptrollerof Public Accounts Capitol Station Austin 11, Texas OpinionNo. WW-544
Re: The effect to be given to Article 5221b-22a, Vernon's Civil Statutes, relating to administraDear Mr. Calvert: tion and disbursement of the moneys in the Unemployment Compensation SpecialAdministration Fund.
You have requested our opinion on the following question:
"Formy further guidance in payment of

claims of like nature, I shall thankyou to advise me what effect, if any, I am to give the following language in Article 5221b-22a, as amended by the Regular Session of the Fifty-first Legislature: 'Allmoneys in the Unemployment Compensation SpecialAdministration Fund shall be deposited, administered, and disbursed in the samemanner and under the same conditionsand requirementsas is provided by law for other special funds.'" Article 5221b-22aprovides in part as follows: "Thereis hereby establishedas a special fund, separateand apart from all public moneys or funds of this State, an Unemployment Compensation SpecialAdministrationFund which may be used by the Commission for the purposes of paying costs of the administration of this Act including the costs of constructionand purchase of buildings and land necessary in such administration.

. . .Nothing in this Section,however, shallprevent saidmoneys from beingused as aHonorable Robert S Calvert,page 2. (w-544)

revolving fund, to cover expendituresnecessary and proper under the TexasUnemployment Compensation Act for which Federal funds have been duly requested but not yet received, subject to the charging of such expendituresagainst such funds when received.

. . .All moneys which are deposited or paid into the Unemployment Compensation SpecialAdministrationFund are hereby appropriated and made available to the Commissionand shall be continuouslyavailable to the Commission for expenditure in accordancewith the provisions of this Act, and shallnot lapse at any time or be transferred to any other fund. All moneys in the Unemployment Compensation SpecialAdministration Fund shallbe deposited, administered,and disbursed in the samemanner and under the same conditions and requirementsas isprovided by law for other special funds.

. . .' Section 7 of ArticleVIII of the Constitutionof Texas, provides: "TheLegislature shallnot have power

to borrow, or in any manner, divert from itspurpose, any special fund that may, or ought to, come into the Treasury; and shall make it penal for any person or persons to borrow,withhold or in any manner to divert from itspurpose any special fund, or any part thereof." This Section expresslyprohibits the diversion by the Legislature of any special fund that may or ought to come into the State Treasury. Carrelv. Williams, 109 Tex. 255, 202 S.W. 2d 504. However, this Sectionapplies only to constitutional special funds, and is not applicable to statutory special funds. Gulf Insurance Co. v. James, 143 Tex. 424, 185 S.W.2d 966, 1945, Attorney General'sOpinionV-107 (1947).

In Gulf Insurance Co. v. James, supra, the Court stated:
"Weagree with the holding of the Court of

Civil. Appeals that the Legislaturehas the right to transfer the balance on hand in these special funds to the GeneralRevenue Fund. In so doing the Legislaturedoes not violate the provisions of ArticleVIII, Section 7, of the Constitution.

. . .HonorableRobert S. Calvert,page 3. (WW-544)

. The State could have required the funds coliected for the purposes indicated to be paid directly to the General Revenue Fund in the first instance. Ex Parte Gregory, 20 Tex. App. 210, 219, 54 Am.Rep. 51.6; Brown v. City of Galveston, 97 Tex. 1, 17, 75 S. W. 488. If it had done so, then certainlythe excess, if any, would have been available for use for generalpurposes. The propriety and fairness of an enactment authorizing the use of the unexpended balances in these special funds for generalpurposes present legislative rather than judicial considerations. Consequently, the Statenow has the right, if the Legislaturedeems it wise to pass suitable laws authorizing it, to use the balances of these special funds for generalpurposes. Section 1 of the Act which authorized the transfer of Operator'sand Chauffer'sLicense Fund to the General Revenue Fund, is therefore valid." The Unemployment Compensation SpecialAdministration Fund is a statutory special fund as distinguished from a constitutional special fund, and therefore, the Legislaturemay provide the purposes forwhich this special fund may be expended. However, in the administration of the special fund, it must be administeredand disbursed for the limitedpurposes for which the fundwas created, as directed by the Legislature.

You are, therefore, advised that the above quoted provisions of Article 5221b-22adirect you and the Treasurer to keep the moneys in the Unemployment Compensation Special AdministrationFund in a separateaccount from all other funds, and it is to be expended for only those purposes authorized by the Legislature.

SUMMARY

The Unemployment Compensation Special AdministrationFund, created by the provisions of Article 5221b-22a,Vernon's Civil Statutes, is a statutory special fund and moneys deposited in such fundHonorableRobert S. Calvert,page 4. ow544 1

must be kept separateand apart from all other moneys and can only be expended for the purposes authorized by the Legislature.

Yours very truly,
WILL WILSON Attorney General of Texas

JR:mfh:zt Assistant.

APPROVED: OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Mrs. Marietta Payne Jack Goodman Renry G. Braswell
RBVIEWED 'OR THE ATTORNEY GENERAL
BY: W. V. Geppert