February17. 1976

The Honorable Clayton T. Garrison Opinion No. H-781 Executive Director Texas Parks &Wildlife Department Re: Use of certain John H. Reagan Building license feesby the Austin, Texas 78701 Parks andWildlife Department for its Seafood Marketing Program.

Dear Mr. Garrison:

YOU have asked our opinion concerning article 978f-3c, Vernon's Texas Penal Auxiliary Laws, which empowered and directed theTexas Parks andWildlife Commission todevelop
a seafoodmarketing program. This article was repealed by the passage of the Texas Parks andWildlife Code, effective September 1, 1975, but a similar provision is found in section 12.009 of thenew Code, which provides:

Sec. 12.009. Seafood Consumption Program
(a) The department shall develop and administer amarket promotion program to foster and expand the sale and consumption of seafood by thepublic. The department may use itsown personnel or contract for personnel and use only state,funds or state funds in conjunction with federal or private funds. (b) Forty percent of the funds collected from commercial fisherman's license fees, 20 percent ofwholesale fish dealers' license fees andwholesale truck dealers' fish license fees, and 50percent of shrimp house operators' license fees shall be used by thedepartment in carrying out the program required by this section.

p.3296The Honorable Clayton T. Garrison- page 2 (H-781)

you question the setting aside of thevarious license monies since this percentage allocation may have conflicted with article 978f-3a, section 6,Vernon's Texas Penal Auxiliary Laws, which read inpart:

[Nlofunds accruing to the State of Texas from hunting license fees, fishing license fees, commercial fishing boat license fees, oyster license fees, net license fees, trawl license fees, seine license fees,

. . .shall be diverted for any other purposes than formaking necessary studies andmanagement of fish and game resources of this State and for the expansion and development of additional opportunities ofhunting and fishing in State-owned land andwaters for the benefit of thepublic wherever practicable and to embrace wherever feasible the principle ofmultiple use of our land and waters forbetter hunting and fishing opportunities.

Section 6has now been replaced by sections 13.313, 83.001 and 83.003 of the Texas Parks andWildlife Code, but the specific portion of section 6quoted above does not appear in the new Code.

In connection with these statutes, you ask:

1. Is the Parks andWildlife Department required toallocate thepercentages of the license fees specified byArticle 978f-3c, Vernon's Texas Penal Auxiliary Laws [section 12.009, Texas Parks and Wildlife Code], to the Seafood Marketing Program, subject to specific legislative appropriation; Does the language in Article 978f-3a, Vernon's Texas Penal Auxiliary LaWS, leave entirely to the discretion of the Commission and/or Department, whether ornot suchprogram will be carried out and the types of seafood products tobe affected?

p.3297The Honorable Clayton T.Garrison -page 3 (H-781)

2. If the Department must reserve the percentages of fees for a seafoodmarketing program as indicated by article 978f-3c [section '12.009,Texas Parks andWildlife Code], should such license receipts soallocated, inexcess of the amount expended by the Department for the marketing program, be reserved in the fundbalance, subject to future legislative appropriation for the Seafood Marketing Program?

3. If the Legislature fails to appropriate funds provided for by article 978f-3c, Vernon's Texas Penal Auxiliary Laws [section 12.009, Texas Parks and Wildlife Code], are they available tobe used for other purposes authorized by law and forwhich appropriations aremade?

As we interpret your questions, you have asked for our opinion concerning fees collected both prior and subsequent to thepassage of the new Parks andWildlife Code. In regard to theperiod prior to the new Code, we note that article 978f-3a was enacted in 1963 (seeActs 1963, 58thLeg., ch. 58,p. 104) and the questionaanguage-of section 6thereof had not been amended at the time of thepassage of article 978f-3c, the Seafood Marketing Program Act, in 1967. See Acts 1967, 60thLeg., ch. 173, 5 5,p. 363.

If the two statutory provisions are considered inconsistent or in conflict, then the latter will control. Code Construction Act, V.T.C.S. art. 542913-2,5 3.05. Accordingly, theprovision of the seafood marketing enactment (article 978f-3c) prevailed over article 978f-3a and the Parks and Wildlife Department was required to comply with the requirement to set aside percentages of certain licensing fees for themarketing program.

p.3298’ ’ .

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The Honorable Clayton T. Garrison -page 4 (H-781)

Moreover, article 978f-3a (togetherwith section 6)was ageneral statute setting up the Parks andWildlife Department and generally providing for its structure, itspowers and its duties. On the contrary, article 978-3cwas a specific statute dealing with theparticular subject of a seafood marketing development program and soprevailed over the general statute setting up the Department Code. ConstructionAct, V.T.C.S. art. 5429b-2, S 3.06. This statutory construction rule, a specific provision prevailing over a general enactment, lends additional weight toour opinion thatyour Department was required to comply with theprovisions of 978f-3c and develop and support the seafood marketing program by the proper allocation and use of the license fees collected.
Accordingly, both before and after the passage of the Code, you had no discretion insofar as the setting aside of the appropriate amount of license fees to institute and implement a seafood marketing program as required by statute. You dohave discretion, of course, indesigning and structuring an appropriate program so long as the legislative dictate--that the promotion shall "further and expand the consumption of seafood by thepublic"--is satisfied.

You further observe thatmore monies have been collected from the named fees of section 12.009 than the Legislature has appropriated. You ask if these surplusmonies, over and above the appropriated funds, can be used forpurposes other than the seafoodmarketing program. Unless the Legislature should amend section 12.009 of the Parks andWildlife Code topermit adifferent usage of the pertinent fees, the statutorily allocated monies should be retained tobe used
as theLegislature has directed, if andwhen the Legislature
sees fit to appropriate such segregated fees. Attorney General Opinions H-528 (1975)and M-1084 (1972). Such fees cannot be used for other departmental uses.

p.3299The Honorable Clayton T. Garrison - page 5 (H-781)

SUMMARY

The Parks andWildlife Department is required to setaside forty percent of the funds collected from Commercial Fisherman's License fees, twenty percent of the funds collected fromWholesale Fish Dealers' License fees and fifty percent of the funds collected from Shrimp House Operators' License fees foruse inaprogram to foster and expand the sale and consumption of seafoods by thepublic.

-Very truly yours,

Attorney General of Texas

Opinion Committee
jwb

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