. . 

.THE ATTBECNEY GENERAL. 

OF-XAS 

AUSTIN. TEXAR 787ll 

May 12, 1971 

Honorable George W. McNiel 

State Auditor 

Opinion No. M-858 

Sam Houston State Office Bldg. 

Austin, Texas 78711 

Re: Whether trust funds 

collected under Article 

5438d., V.C.S.? may be 

expended for maintenance 

of all State property 

within the purview of 

said statute, or must 

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: 

"The Treasurer General of the Daughters of the Republic 

of Texas, Custodians of the Alamo, the French Legation, 

and the DRT Museum joins me in requesting your 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 

thereunder require a strict location by location 

earmarking of the admission receipts and concession 

profits which are dedicated to the maintenance and 

repair of the State property and furnishings under 

the custody and control of the Daughters of the 

Republic of Texas, or whether the collective revenue 

earned from these properties may be used for their 

collective support without reference to any particular 

earning property. 

We are advised that these monies are accounted for 

separately at the present time; that certain of the 

properties are not self sufficient; that their 

maintenance and operations are 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 sufficient authority 

now exists for the transfer of earnings between 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 State property 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 organizations to be expended 

for the purpose of maintenance and repair of State 

property and furnishings under the custody and control 

of such organizations. The admission fee to be charged 

the public shall be in the amount determined by such 

organizations as 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 organizations and they are authorized to 

operate such concessions themselves or to enter into 

necessary contracts with any other person, firm or 

corporation for theoperation of concessions in any 

manner they deem necessary for the best interest of 

the State and public." (Emphasis added) 

The above statute expressly creates a special trust fund 

of the money 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 organizations for maintenance and repair of the State 

property in the custody and control of such organizations. No 

constitutional "special fund" 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 

limitation placed upon its use by such organizations is that it 

be expended for the maintenance and repair of the State's own 

property that such organizations hold in trust for the State. 

Thus, the fund is expendable only for a public purpose. The 

general right of the'State to apply, its property' to such purpose 

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Honorable George W. McNiel, Page 3, (M-858) 

was declared bs the Suoreme Court of Texas in 1913 in the 

case of Conley"v. Daughters of Republic 106 Tex. 80, 156 

S.W. 197 (1913). Later In the same year the Austin Court 

of Civil Appeals announced the same nrinciole of law in 

Conley v. United Daughters of Confederacy L 164 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 particular property involved - it unequivocally appropriates 

& such fees and income to all such propertys' maintenance 

purposes, regardless of the proportion 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 ,be used for the maintenance and repair of all or 

any of such properties, as deemed necessary for the best 

interest of the State and public by the organizationsso 

authorized by statute. 

SUMMARY 

The money collected as admission fees and concession profits by reason of visitors to all or any 

part of certain State properties, as authorized by 

Article 5438d., V.C.S., may be expended for the maintenance and repair of all, or any of such properties 

regardless of the proportion of such earnings that 

may be attributable to any particular property, as 

the organizations having same in their custody and 

control deem necessary for the b 

/7 

t interest of the 

State and public. 

Prepared by R. L. Lattimore 

Assistant Attorney General 

General of Texas 

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Honorable George W. McNiel, Page 4 

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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