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### .THE ATTBECNEY GENERAL.

OF-XAS

AUSTIN. TEXAR 787ll May 12,1971

Honorable George W. McNiel StateAuditor OpinionNo. M-858 Sam Houston State Office Bldg. Austin, Texas 78711 Re: Whether trust funds collectedunder Article 5438d.,V.C.S.? may be expended formaintenance of all Stateproperty within the purview of said statute, ormust such funds be spent only on that part of such
Dear Sir: property which earned same?
Your request for an official opinion of this office is quoted as follows:

"TheTreasurer General of the Daughters of the Republic of Texas, Custodians of the Alamo, the French Legation, and the DRT Museum joinsme in requestingyour opinion as to whether the provisions of Article 5438d, of Vernon's Annotated Civil Statutes, and the trust character of the funds authorized to be collected thereunderrequire a strict locationby location earmarking of the admission receipts and concession profits which are dedicated to themaintenance and repair of the Stateproperty and furnishingsunder the custody and control of the Daughters of the Republic of Texas, or whether the collectiverevenue earned from thesepropertiesmay be used for their collective supportwithout reference to any particular earningproperty.
We are advised that thesemonies are accounted for separatelyat the present time; that certain of the properties are not self sufficient; that their maintenance and operationsare being supplemented from unrelated dues income of the organization;and

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Honorable George W. McNiel, Page 2 (M-858)

that they would benefit greatly if sufficientauthority now exists for the transfer of earningsbetween the properties." Article 5438d., Vernon's Civil Statutes,reads as follows: "The Daughters of the Confederacy,Texas Division, and the Daughters of the Republic of Texas, are hereby authorized to charge admission fees to the general public to visit Stateproperty under their custody and control except the Alamo, and such organizations are authorized to maintain and operate in any manner they deem appropriate concessions in State property under their custody and control. received from the admission charged and all y+F ro 1 obtained from the operation of concessions shall be held in trust by such organizationsto be expended for the purpose ofmaintenance and repair of State property and furnishingsunder the custody and control of such organizations. The admission fee to be charged thepublic shall be in the amount determinedby such organizationsas in their discretion they deem best for the interest of the State and the public. The operation of concessions shall be under the control of such organizationsand they are authorized to operate such concessionsthemselves or to enter into necessary contractswith any otherperson, firm or corporation for theoperationof concessions in any manner they deem necessary for the best interest of the State andpublic." (Emphasisadded) The above statute expressly creates a special trust fund of themoney received as admission fees from the general public visiting such State property, and of all profits obtained from the operation of such concessions,to be expended by such authorized organizationsfor maintenance and repair of the State property in the custody and control of such organizations. No constitutional "specialfund" is here involved. Gulf Insurance Co.v. James 143 Tex. 424, 185 S.W.2d 966 (1945). The trust fund is entirely a creature of the statute and the only limitationplaced upon its use by such organizationsis that it be expended for the maintenance and repair of the State's own property that such organizationshold in trust for the State. Thus, the fund is expendable only for a public purpose. The general right of the'State to apply,itsproperty'to suchpurpose

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was declared bs the Suoreme Court of Texas in 1913 in the Tex. 80, 156 case of Conley"v.Daughters of Republic 106 S.W. 197 (1913). Later In the sameyear the Austin Court of CivilAppeals announced the samenrinciole of law in Conleyv. United Daughters of ConfederacyL164 S.W. 24, 7Tex.Civ.App. 1913. error ref.) and again'ln 1941 In the case of King v. Sheppard, error ref. w.0.m.). 157 S.W.2d G82 (Tex.Civ.kpp.1941,

The statute does not apportion any part of such fund to any particularproperty involved - it unequivocallyappropriates & such fees and income to all such propertys'maintenance purposes, regardless of theproportion of such fees and income attri,butable

to any particular site by reason of visitors thereto or concessions operated therein. All or any part of this fund may ,beused for the maintenance and repair of all or any of such properties, as deemednecessary for the best interest of the State and public by the organizationsso authorizedby statute.

SUMMARY

The money collected as admission fees and concessionprofits by reason of visitors to all or any part of certain State properties, as authorizedby Article 5438d.,V.C.S., may be expended for the maintenance and repair of all, or any of suchproperties regardless of theproportion of such earnings that may be attributable to any particularproperty, as the organizationshaving same in their custody and control deem necessary for the b /7 t interest of the State and public.

Preparedby R. L. Lattimore AssistantAttorney General General of Texas

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APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Marietta Payne Sally Phillips Jim Swearingen Mike Stork
MEADE F:GRIFFIN Staff Legal'Asslstant
ALFRED WALKER Executive~Assistant
NOLA WHITE First Assistant (M-858)

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