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 fees by the 

Austin, Texas 78701 Parks and Wildlife 

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 the Texas Parks and Wildlife Commission to develop 

a seafood marketing program. This article was repealed by 

the passage of the Texas Parks and Wildlife Code, effective 

September 1, 1975, but a similar provision is found in section 12.009 of the new Code, which provides: 

Sec. 12.009. Seafood Consumption Program 

(a) The department shall develop and 

administer a market promotion program to 

foster and expand the sale and consumption 

of seafood by the public. The department 

may use its own 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 of wholesale fish dealers' license 

fees and wholesale truck dealers' fish license 

fees, and 50 percent of shrimp house operators' 

license fees shall be used by the department 

in carrying out the program required by this 

section. 

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

you question the setting aside of the various license 

monies since this percentage allocation may have conflicted 

with article 978f-3a, section 6, Vernon's Texas Penal Auxiliary Laws, which read in part: 

[Nlo funds 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 for making 

necessary studies and management of fish 

and game resources of this State and for 

the expansion and development of additional 

opportunities of hunting and fishing in 

State-owned land and waters for the 

benefit of the public wherever practicable 

and to embrace wherever feasible the 

principle of multiple use of our land 

and waters for better hunting and fishing 

opportunities. 

Section 6 has now been replaced by sections 13.313, 83.001 

and 83.003 of the Texas Parks and Wildlife Code, but the 

specific portion of section 6 quoted above does not appear 

in the new Code. 

In connection with these statutes, you ask: 

1. Is the Parks and Wildlife Department 

required to allocate the percentages of 

the license fees specified by Article 

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 or not such program 

will be carried out and the types of 

seafood products to be affected? 

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

2. If the Department must reserve the 

percentages of fees for a seafood marketing program as indicated by article 

978f-3c [section '12.009, Texas Parks 

and Wildlife Code], should such license 

receipts so allocated, in excess of the 

amount expended by the Department for the 

marketing program, be reserved in the 

fund balance, 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 to be 

used for other purposes authorized by law 

and for which appropriations are made? 

As we interpret your questions, you have asked for our 

opinion concerning fees collected both prior and subsequent 

to the passage of the new Parks and Wildlife Code. In regard 

to the period prior to the new Code, we note that article 

978f-3a was enacted in 1963 (see Acts 1963, 58th Leg., ch. 

58, p. 104) and the questionaanguage-of section 6 thereof 

had not been amended at the time of the passage of article 

978f-3c, the Seafood Marketing Program Act, in 1967. See 

Acts 1967, 60th Leg., 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, 

the provision 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 

the marketing program. 

p. 3298 
’ ’ . 

. - 

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

Moreover, article 978f-3a (together with section 6) was 

a general statute setting up the Parks and Wildlife Department and generally providing for its structure, its powers 

and its duties. On the contrary, article 978-3c was a 

specific statute dealing with the particular subject of a 

seafood marketing development program and so prevailed over 

the general statute setting up the Department Code. Construction Act, 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 to our opinion 

that your Department was required to comply with the provisions 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 do have discretion, of course, in designing and structuring an appropriate program so long as the legislative 

dictate-- that the promotion shall "further and expand the 

consumption of seafood by the public"--is satisfied. 

You further observe that more monies have been collected 

from the named fees of section 12.009 than the Legislature 

has appropriated. You ask if these surplus monies, over and 

above the appropriated funds, can be used for purposes other 

than the seafood marketing program. Unless the Legislature 

should amend section 12.009 of the Parks and Wildlife Code 

to permit a different usage of the pertinent fees, the 

statutorily allocated monies should be retained to be used 

as the Legislature has directed, if and when 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. 3299 
The Honorable Clayton T. Garrison - page 5 (H-781) 

SUMMARY 

The Parks and Wildlife Department is 

required to set aside forty percent of 

the funds collected from Commercial 

Fisherman's License fees, twenty percent 

of the funds collected from Wholesale 

Fish Dealers' License fees and fifty 

percent of the funds collected from 

Shrimp House Operators' License fees 

for use in a program to foster and 

expand the sale and consumption of 

seafoods by the public. 

-Very truly yours, 

Attorney General of Texas 

Opinion Committee 

jwb 

p. 3300