August 31, 1965

Dr. James E. Peavy Commissioner of Health OpinionNo. C-493 Texas State Department of Health Re: Whether the Sanitarians Austin, Texas Registrationand License Fund is a special fund under the direction of the State Treasurer and Dear Dr. Peavy: related question.

Your letter requesting an opinion of this office reads in part as follows:

"The SanitariansRegistrationAct (Senates Bill 333) as passedby the 59th Legislature authorizes the State Board of Health to set up certain proceedings for the registration of sanitarians; the charging of a Ten Dollar ($10.00)fee and providing authorization for the setting up of standards and qualifications for sanitarians to be registeredunder the Act. "TheAct further authorizes fees and expenses in Section 8
. . . $8

. . . "In reviewing thisAct with the Comptroller's Office in order to establish a special Sanitarians Registrationand License Fund, the followingquestionswere raised: "1. Is the SanitariansRegistrationand License Fund a special fund under the direction of the State Treasurer? The first sentence of -2331-Dr. James E. Peavy, page 2 (C-493 )

8(b) creates a special fund;however, the last sentence infers that the fundmay not be in the State Treasury (forexample, it may be a trust fund). "2
. If this is a special fund under the direction of the State Treasurer, are the receipts appropriated to the Texas State Department of Health? "3. If this is a special fund under the direction of the State Treasurer, thenwhat is the meaning of the last sentence in Section 8 lb) ? The surpluswould alreadybe in the State Treasury. ,I

. . . "Wewould appreciateyour assistance in answering the questionsherein raised and your interpretationand direction as to our procedure in setting up the special fund in the State Treasury." Sec. 8(b) of S. B. No. 333,Acts 59th Leg., 1965, ch. 300, p. 606, provides:

"There is created a swcial Sanitarians Reqistration and License Fundwhich will consist of any and all fees charged or collected under any of the provisions of thisAct. The Fund shallbe under the suoervision of the Board which shall file annually a statement of income and expenseswith the Secretary of State. All exoenses necessarv to the administration and enforcement of thisAct. as well as any other exnenses of whatsoever character that may arise becuase of the terms and provisionshereof, shallbe made from the Fund, including the reimbursementsmade to Board members, as provided forby the provisions of thisAct. Any surplus remaininq in the SanitariansRegistrationand License Fund, at the end of each fiscalyear, -2332-Dr. James E. Peavy, page 3 (C-493 )

not necessary to defray the expensesmentioned and providedunder the terms of thisAct, shall be paid into the State Treasury." (Emphasis added). The Legislaturehas clearly set apart those fees collectedby authority of Senate Bill 333 into a special fund entitled "SanitariansRegistrationand License Fund." A special purposehas been designated for funds collected under Senate Bill 333. The caption of Senate Bill 333 reads in part as follows:

II

. . .providingfor expenditureand other disposition of funds collected under provisions of theAct and fixing purposes forwhich such fundsmay be used:
. . .II Section 8(b) as quoted above, clearly authorizes expenditures of funds collected under theAct for all expenses necessary to the administrationand enforcement of theAct, as well as other expenseswhich may arisebecause of the terms and provisions of the Act. Fees collected under the Act are used exclusively for the occupation required to pay them and therefore are collected in a valid special fund. James v. Joseph, 179 S.W.2d 411 (Tex.Civ.App.1944) reversed on other grounds, 143 Tex. 440, 185 S.W.2d 974. 52 Tex.Jur.Zd. 747, State of Texas, § 36. In Section 8(b) thewords "into the State Treasury"mean that funds are tobe transferred into the General Fund. Manion v. Lockhart, 131 Tex. 175, 114 S.W.2d 216 (1938). The State has the right, if the Legislaturedeems it necessary, to pass suitable laws authorizing thebalance of Special Funds created by statute to be used for general purposes. Gulf Ins. Co. v. James, 143 Tex. 424, 185 S.W.2d 966 (1945).

In absence of any constitutional or statutory requirement that Special Funds or state fundsmust be deposited in the hands of the State Treasurer,a statute authorizing collection of license fees in a Special Fundwill not be construed so as to require deposit of such fees into the custody of the State Treasurer. Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595 (1949);State Licensing Board of Contractorsv. State Civil Service Commission, 110 So.2d 847 (La.Ct. ofApp. 1959, aff. on ape.1. Fees collected under the Act may be paid to the State -2333-Dr. James E. Peavy, page 4 (G-493 )

Treasurer as custodian of the SanitariansRegistration and License Fund administeredas a special fund. The State Board of Health is authorizedby theAct to expend funds collected under the Act for purposes describedby theAct. A full report of expenditures is to be filedwith the Secretary of State at the end of each fiscalyear. All monies are to be deposited in the General Revenue Fund at **the** end of each fiscal year. It is our opinion that:

(1) The SanitariansRegistrationand License Fund is a special fundwhich may be deposited in **the** custody of the State Treasurer.(2) Monies deposited in the SanitariansRegistration and License Fund are tobe expended under supervision of the State Board of Health for the purposes enumeratedby Senate Bill 333, 59th Legislature, 1965.

(3) Any monies remaining in the SanitariansRegistration and License Fund at **the** end of each fiscalyear are to be transferred to the General Fund of the State Treasury. SUMMARY (1) The SanitariansRegistration and License Fund is a special fundwhich may be deposited in the custody of the State Treasurer. (2) Monies deposited in the Sanitarians Registration and License Fund are tobe expended under the supervision of the State Board of Health for the purposes enumeratedby Senate Bill 333, 59th Leg. ;(3)Any monies remaining in the SanitariansRegistrationand License Fund at the end of each fiscalyear are to be transferred to the General Fund of the State Treasury.
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Dr. James E. PeaVy. Page 5 (c-493 )

Very trulyyours. WAGGONER CARR Attorney General

Bv: Gordon Houser Assistant
GH:ra APPROVED: OPINION CCMMITTEE

w. 0. Shultz, Chairman Dean Arrington John Banks Jim Briscoe Larry Craddock APPROVED FOR THEATTORNEY GENERAL BY: T. B. Wright

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