October 14, 1975 

The Honorable Hugh C. Yantis, Jr. 

Executive Director 

Texas Water Quality Board 

1700 North Congress Avenue 

P. 0. Box 13246, Capitol Station 

Austin, Texas 78711 

Opinion No. H- 716 

Re: Application of article 8. 

section 6 of the Texas 

Constitution to Boat 

Certification Fee Refunds. 

Dear Mr. Yantis: 

You ask if the requirement of article 8. section 6 of the Texas Constitution 

that “no money shall be drawn from the treasury but in pursuance of specific 

appropriations mady be law” applies to the special fund into which are put 

boats certification fees collected by the Texas Water Quality Board pursuant 

to section 21.097 of the Water Code. If it does, and if there has been no 

specific appropriation for that purpose, you further inquire about the point 

in time at which the provision prevents the refund of bes to persons who have 

mistakenly or unnecessarily paid fees put into the fund, i. e., at what point 

are the funds to be considered “in the treasury”within themeaning of the 

constitutional provision; 

Subsection (c) of section 21.097 of the Water Code reads: 

The board may delegate the administration 

and performance of the certification function 

to the executive director or to any other governmental entity. The board may prescribe and 

require the payment, by applicants for certification, of reasonable fees based on the cost 

of administering and performing the certification function. All certification fees shall be 

paid to the entity performing the certification 

function. All fees collected by any state 

agency shall be deposited in a special fund for 

use by that agency in administering and performing the certification function and shall not 

be deposited in the general revenue fund of the 

state. 

p. 3072 
The Honorable Hugh C. Yantis, Jr., page 2 (H-716) 

All state money, including that in special funds, is subject to the 

restrictions of article 8, section 6 of the Constitution unless exempted 

by other provisions of the Constitution. The provision cannot be evaded 

by the attempted arrest and diversion of state funds before they reach 

the treasury. State v. Angelina County, 150 S. W. 2d 379 (Tex. Sup. 1941); 

McCombs v. Dallas County, 136 S. W. 2d 975 (Tex. Civ.App. --Dallas 1940, 

writ ref’d. ,140 S. W. 2d 1109). Also see National Biscuit Co. vi State,of Texas, 

135 S. W. 2d 687 (Tex. Sup. 1940); Pickle v. Finley, 44 S. W. 480 (Tex. Sup. 

1898); Attorney General Opinions H-211 (1974). H-154 (1973). H-138 (1973), 

V-412 (1947), O-5739 (1944). O-2658 (1940). O-2355 (1940). Cf. Attorney 

General Opinions K224 (1974). H-74 (1973). But the provisiondoes not 

apply to trust funds belonging to others or to clearance funds of doubtful 

ownership, even though the State Treasurer has been made the custodian 

of them. Friedman v. American Surety Co. of New York, 151 S. W. 2d 570 

(Tex. Sup. 1941); Manion v. Lockhart, 114 S. W. 2d 216 (Tex. Sup. 1938); 

Rogers v. Daniel Oil & Royalty Co., 110 S. W. 2d 891 (Tex. Sup. 1937). 

However, even trust funds, if placed in the Treasury by mistake, are 

- 

subject to it. Manion v. Lockhart, supra. 

In our opinion the special fund into which the boat certification fees 

are deposited does not constitute such a trust fund or clearance fund as 

might escape article 8. section 6 of the Constitution. See Attorney General 

Opinion H-154 (1973). Nor does the dedication or earmarking of the fund 

for the use of the collecting agency in administering and performing the 

certification process constitute an appropriation of the monies. Attorney 

General Letter Advisory No. 46 (1973); Attorney General Opinions H-674 

(1975). H-248 (1974). H-211 (1974). And in our opinion the statutory 

direction that such receipts should not be deposited in the general revenue 

fund of the state does no’more than reiterate the requirement that they be 

deposited in a special‘fund. It could not arrest and divert them from the 

state treasury because the receipts are clearly state money meant to be 

used for state purposes. State v. Angelina County, supra. Besides, 

the term “Treasury” refers not just to funds ib a particular vault belonging 

to the Treasurer, but also to funds on deposit in various depository banks. 

Boyett v. Calvert, 467 S. W. 2d 205 (Tex. Civ.App. --Austin 1971, writ 

ref’d., n. r. e. ), app. dismd. ,405 U.S. 1035. 

In answer to your first question, we believe article 8, section 6 of the 

Constitution applies to the special fund for boat certification fees. 

p. 3073 
. 

The Honorable Hugh C. Yantis, Jr., page 3 (H-716) 

Your second question is conditioned upon a determination that no 

specific appropriation has been made for the purpose of refunding fees 

erroneously paid into the special fund. We do not think section 21.097 

of the Water Code, itself, makes an appropriati.on of the fund for any 

purpose and we have found no reference to the matter in either the 

current or upcoming general appropriation act sections specially 

appropriating money to the Water Quality Board. But in both the 1973-74 

General Appropriations Act, .Acts 1973, 63rd Leg., ch. 659, p. 1786. 

and the 1975-76 General Appropriations Act, Acts 1975. 64th Leg., ch. 743. 

p. 2416, this identical provision appears under article V: 

Sec. 26. REFUNDS OF DEPOSITS. Any money 

deposited into the State Treasury which is subject 

to refund as provided by law shall be refunded from 

the fund into which such money was deposited, and 

so much as is necessary for said refunds is hereby 

appropriated. 

Ia Attorney General Opinion H-224 (1974) it was concluded that the 

foregoing general appropriations act provision appropriated to the 

Comptroller the money necessary to make refunds of collected mixed 

beverage taxes which the general law indicated he should make to cities 

and counties. By the same reasoning, the provision would serve to 

appropriate to the Water CJuality Board from the special boat certification fee fund the money necessary to reimburse persons entitled by 

general law to refunds of money placed in the special fund. You have 

not asked us about any specific fact situations and whether a particular 

refund sought is authorized by general law. depends upon the facts of 

the matter. See Attorney General Opinion M-1048 (1972). In any event, 

there is an appropriation for such refunds and we, therefore, do not 

reach your second question. 

SUMMARY 

The special fund into which boat certification 

fees are deposited pursuant to section 21.097(c) 

of the Water Code is subject to the provisions of 

p. 3074 
The Honorable Hugh C. Yantis, Jr., page 4 (H-716) 

article 8, section 6 of the Constitution, but 

the General Appropriations Act contains a 

provision appropriating from such funds the 

amounts necessary to make refunds authorized 

by general law. 

Very truly yours, 

APPROVED: 

/ /Attorney General of Texas 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH. Chairman 

Opinion Committee 

p. 3075