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 ofarticle 8. section 6of the Texas Constitution to Boat Certification Fee Refunds.

Dear Mr. Yantis:

You ask if the requirement ofarticle 8. section 6ofthe Texas Constitution that “no money shall be drawn from the treasury but inpursuance of specific appropriations mady be law” applies to the special fund into which are put boatscertification fees collected by the Texas Water Quality Board pursuant to section 21.097 ofthe Water Code. Ifit does, and ifthere has been no specific appropriation forthat purpose, you further inquire about the point intime atwhich the provision prevents the refund ofbes 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 ofthe constitutional provision;
Subsection (c) of section 21.097 ofthe Water Code reads:

The board may delegate the administration and performance ofthe certification function tothe executive director or to any other governmental entity. The board may prescribe and require the payment, byapplicants for certification, of reasonable fees based on the cost ofadministering and performing the certification function. All certification fees shall be paid to the entity performing the certification function. All fees collected byany state agency shall be deposited in a special fund for
use by that agency inadministering andperforming the certification function and shall not be deposited in the general revenue fund of the state.

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

All state money, including that in special funds, is subject to the restrictions ofarticle 8, section 6ofthe Constitution unless exempted by other provisions ofthe Constitution. The provision cannot be evaded bythe attempted arrest and diversion of state funds before they reach the treasury. State v. Angelina County, 150S.W. 2d 379 (Tex. Sup. 1941); McCombs v. Dallas County, 136S.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, 135S.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 ofthem. Friedman v. American Surety Co. ofNew York, 151S.W. 2d 570 (Tex. Sup. 1941); Manion v. Lockhart, 114S.W. 2d 216 (Tex. Sup. 1938); Rogers v. Daniel Oil &Royalty Co., 110S.W. 2d 891 (Tex. Sup. 1937). However, even trust funds, ifplaced in the Treasury bymistake, 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 6ofthe Constitution. See Attorney General Opinion H-154 (1973). Nor does the dedication or earmarking ofthe fund for the use ofthe collecting agency in administering and performing the certification process constitute an appropriation ofthe 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 notbe deposited inthe general revenue fund ofthe state does no’more than reiterate the requirement that they be deposited in a special‘fund. Itcould notarrest 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 notjust to funds ibaparticular vault belonging to the Treasurer, butalso 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.

Inanswer toyour first question, we believe article 8, section 6ofthe 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 ofthe Water Code, itself, makes an appropriati.on ofthe fund for any purpose andwe 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 fundinto which such money was deposited, and
so much as is necessary for said refunds is hereby appropriated.

IaAttorney General Opinion H-224 (1974) itwas concluded that the foregoing general appropriations act provision appropriated to the Comptroller themoney necessary tomake 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 theWater CJualityBoard from the special boat certification fee fund the money necessary to reimburse persons entitled by general law to refunds ofmoney placed in the special fund. You have notasked us about any specific fact situations andwhether a particular refund sought is authorized by general law. depends upon the facts of the matter. See Attorney General Opinion M-1048 (1972). Inany event, there is an appropriation for such refunds andwe, therefore, do not reach your second question.
SUMMARY
The special fundinto which boat certification fees are deposited pursuant to section 21.097(c) ofthe Water Code is subject to the provisions of

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

article 8, section 6ofthe Constitution, but theGeneral Appropriations Act contains a provision appropriating from such funds the amounts necessary tomake 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