February 12, 1975

The Honorable Cue D. Boykin Chairman Texas Industrial Accident Board P.O. Box 12757, Capitol Station Austin, Texas 78711 Opinion No. H- 524 Re: Validity of an appropriation to the Attorney General’s Office from Workmen’s Compensation Fund NO. 94. Dear Mr. Boykin:

You have asked our opinion on the legality of the Legislature’s transfer of a portion of the Workmen’s Compensation Fund No. 94to the A,ttorney General’s Operating Fund.

The Workmen’s Compensation Fund is created by article 8306, section 28, V. T. C.S., which provides: I Sec. 

### 28. The:re is hereby established as a special fund, separate and apart from all public monies or funds ofthis state, a Workmen:s Compensation Fund which shall be used by the Board for the purpose of paying costs of the administration of the law, in addition to amounts appropriated by the Legislature of the State of Texas. The State Treasurer shall be the treasurer and custodian of the fund. He shall adminjst-,r such fund in accordance wit,h the directions of the Board, and the Comptroiler shall issue war:rants upon itsin accordance with the directions of the Board.

,

. . . . Failure to make any report required by this Section shall be punishable by fine not the exceed One Thousand

. pe 2364The Honorable Cue D. Boykin page 2 (H-524)

($1000) Dollars and the failure to pay any tax within thirty (30) days after same is due under this Section shall be ,punishable by a penalty of ten percent (10%) of the amount, and shall be recovered **by** the Attorney General in a suit brought by him in the name of the State of Texas and such penalties when collected shall be deposited’
. in the State Treasury ‘for the use and benefit of the Workmen’s Compensation Fund. ‘
. Even though funds may be.earmarked by statute, they,may not be’ ,’ spent absent a valid appropriation. Texas Constitution, art. 8, $6.

In the appropriation to the Attorney General’s Office the Legislature has transferred money from several different funds tothe Attorney General’s Operati.ng Fund. For the year ending August 31, 1975, these transfers include one of $50,000 from the Workmen’s Compensation Fund Nq. **94.** Acts 1973, 63rd Leg., ch. 659, p. .1786at 1920.

The Attorney General’s Operating Fund was created in 1959and has been funded i.na similar fashion since th,attime.’ Acts 1959, 56th Leg. ,. 3rd C.S. ch. 23, p. 442 at 510. The Operating Fund’s validity was upheld in Attorney General OpinionWW-573 (1959).

To be valid this appropriation from the Workmen’s Compensation -Fund to the Attorney General’s Operating Fund must be authorized by general law [Texas Constitution,, art. 3, $441 and must be consistent wi.t.1~ the requirements of general law **[Texas** Constitution, art. 3, §35; A+‘:orney General 0pi:lion V-1254 (195111. We believe both of these tests xrt me!: here.

Se&on 28 of artdcle 8306 provides that.the fund “shall be used by the Board for the purpose of paying costs of the administration of the law.
. . “‘
. 7”-Lo.‘:~“0 this language is mandatory and the Board is requi~red to make expenditures from the fund to pay the costs of administering the workmen’s compensation law. In fulfilling his constitutional and **statutory** duties as the at.torney for state agencies, the Attorney General represents the Industrial

pe 2365The Honorable Cue D. Boykin page 3 (H-524)

Accident Board in court and counsels with the Board in regard to its legal obligations. The very section which creates the fund indicates that a portion of the cost of administering the law will be incurred by the Attorney General, si.nre he is required t.obring suit to recover taxes and penalties for the benefit of the fund. Additionally, work is being undertaken in preparation for the initiation of the program of workmen’s compensation for state employees. This program is expected to go into effect prior to the end of the current: fiscal year and both the At.torney General and the Industrial Acc~,ident Board will have extensive administrative responsibilities under the law. See V. T. C.S.,art. 8309g. In light of these responsibilities ofthe Attorney General’s Office, the Legisl~ature has determined both in general law and in the appropriation bill that the Attorney General’s Office plays an integral role in the administration of the Workmen’s Compensation Law. Therefore, t,heLegislature!s transfer of a portion of the Workmen’ti Compensation Fund to the Attbrney General’s Operating Fund is entirely consistent wjth the statutory mandat~e that the fund “be used by t.heBoard for the purpose of paying c~osts of the administration of the law. ”

Although there is language i,nsection 28 of article 8306 which could be construed as li.miting administration of the fund to the Board, we believe the statut.e is more correc~tly i,nterpretcd as specifying and mandating the purpose for which the funds ran be spent rather than as abrogating the power of the Legislature to allocate the fund for speci,fic purposes within the cont.emplation of the statutxy purpose. ThinsinterpretaEon is consist:ent with priar praci:ice and c~,onstruci:ion in regard to similar funds. See Attorney - General OpinEon WW-604 (1959) which approved a proposed transfer from the Barber Examiners Fnnd (V. T. C.S.I ari,. 7407a, $27) i:othe General Revenue Fund t,oreflect the cost of servic~es furnj,shed to the Barber’s Board **by other**  **siaie agencies.**  SUMMARY __l__-~__ The Legisla!g,re is au!:hori,zed to appropriate a pori:j,on of the Workmrn!s Compensation Fund

po 2366The Honorable CuteD. Boykin page 4 (H-524)

to the Attorney General’s OffiLe to reflect the costs of administering the Act. Very truly yours,

dHl&
.’ Attorney General of Texas -ROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee 

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po 2367