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# THE AYTORNEY GENERAL OFTEXAS
**AIlSTIN. TEXAS**  78711

October 25, 1973 The Honorable Ralph D. Spencer, AIA Executive Director Texas Board ofArchitectural, Examiners 202 Richmond Building 1411West Avenue Austin, Texas 78701 Opinion No. H- 138 Re: The necessity oflegislative appropriation of Architects Registiatioxi 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 ofArc~hitectural Examiners (hereinafter TBAE or the Board) has full responsibility and authority for administering Architects Registration .Fund No. 109without regard to legislative appropriation. Most ofyour 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 tobe

charged by virtue ofthis Act shall be deposited in the State Treasury tothe credit of a special fund to be known as ‘Architects Registration Fund, ’and all expendituies from this fund shall be on order ofthe Texas Board ofArchitectural Examiners onwarrants issued by the State Comptroller for the purposes and inthe amounts fixed by the Legislature of Texas. All disbursements from such fund shall be made only on the written approval or order ofthe chairman or acting chairman, andthe secretary-treasurer of such Board, and such disbursements shall not in anyway be a charge upon the General Revenue Fund ofthis 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 ofthis 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 ina separate fund to be known as the Architects Registration Fund. This fund shall be paid out only by warrants ofthe State Comptroller, upon itemized vouchers, approved by the chairman or acting chairman and attested by the secretary-treasurer ofthe Board. Disbursements shall not inany way be a charge upon the General Revenue Fund ofthis State. ” (emphasis added) Indetermining whether the Legislature surrendered appropriation control over the Architects Registration Fund 109, the.two important changes inthe law are the omission ofthe requirement that warrants be

“for the purposes and inthe amounts fixed by the Legislature ofTexas” and the substitution of “to the State Treasurer” for “in the State Treasury” inproviding for the disposition offees collected. The Texas Constitution specifically restricts thenexpenditure of treasury funds to those appropriated by the Legislature. Article 8, §6, provides, “No money shall be drawn from the Treasury.but inpursuance of specific appropriations made by law; nor shall any appropriation be made-for alonger term than two years. . . .” The Texas Supreme Court has made it clear that there are instances where funds held by the Treasurer are nottreasury 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, 114S.W. 2d 216 (Tex .1938)] and the unemployment compens American Surety Co. ofNew York, 151S.W. 2d 570 (Tex. 19411. Both involved money which was held by the treasurer for possible (Manion, supra) or ultimate (Friedman, s. )distribution to an identifiable group ofpeople.

p. 658The Honorable Ralph D. Spencer, page 3 (H-138)

See Attorney General Opinion WW-565 (1959). The Court found the Treasurer to be atrustee. Architects Registration Fund 109, onthe other hand, is used for the general administrative expenses of a state agency. Ithas little, ifany, resemblance to atrust and, notwithstanding the omission of the language concerning legislative~appropriation and the substitution of theword “Treasurer” for the word “Treasury, ”we do not believe the Legislature intended to establish Fund 109 as atrust fund. There are other indications ofalegislative 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 Registration Fund No. 109. ~~ A specific legislature is deemed to be motivated by the same mind and policy inall it does, and every effort should be made to construe acts ofthe same legislature so that they are harmonious with each other. Barnes v. State, 170S.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 aweek later. Another indication oflegislative intent can.be found inthe House’s tape recordings ofthe committee hearings on H.B. No. 1204, the amending Act. Of course, the views ofa legislative committee are not controlling, but they are entitled to consideration. National Carloading-Gorporation v. PhoenixEl 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 itwas specifically represented to the committee that thenamendment would not permit the Board to bypass the appropriation procedures. Itwas stated that the Board did notwant any change andwould continue to go through the normal appropriation process. Given the dissimilarity ofArchitects Registration Fund 109to the funds involved inManion, supra. , and Friedman, supra., the inclusion ofTBAE inthe General Appropriations Bill andthe testimony given at the committee hearings, itis our opinion that TBAE still is subject to appropriation by the Legislature. Because we have reached our decision on the basis oflegislative

p. 659The Honorable Ralph D. Spencer, page 4 (H-138)

intent, we do not reach the question whether, constitutionally, the Legislature could provide for the expenditure of money from Architects Registration Fund 109without legislative appropriation. Other ofyour 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 continue to requisition the Board of Control who, inturn, will advertise for competitive bids and contract for T.B.A. E. ? 2. Does 53(d) ofH.B. 1204 empower T.B.A. E, .to incur legal and court costs necessary in enforcement actions? 3. Will the fact that ten percent ofthe Architects Registration Fund 109 is no longer contributed to the General Revenue Fund cause T.B.A. E. tobe 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 inpart:

“The Board [of Control] shall purchase all suppli~es, materials, services, and equipment used by each Department ofthe State Government
. . . such supplies to include furniture and fixtures,technical 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 toagencies ofthe State.
. . .”

p. 660The Honorable Ralph Di Spancer, page 5 (H-138)

Inaccordance 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 ofthe provisions ofthis 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 ofthis Act, and the statutes ofthis state pertaining to the practice ofarchitecture
. . . . 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 9ofthe 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 requirements ofArticle V $40 and 41ofthe General Appropriations Act are met. The failure ofTBAE 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 inthe past, some services will be provided without charge and some will require interagency agreements, butthe charges or lack of reimbursement donot depend onthe Board’s contribution or failure to contribute to general revenue. SUMMARY The Texas Board ofArchitectural Examiners may spend funds only as authorized by legislative appropriation, notwithstanding 1973 amendments to

p. 661The 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

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