### DAN MORALES

ATTORNEY GENERAL 

# @fficeoftoeEWmwp Q&nerd Bate of fEexae

Ms. Catherine A. Ghiglieri Commissioner Texas Department of Banking 2601 North Lamar Boulevard Austin, Texas 78705-4294 November 12, 1998 Opinion No. DM-489 Re: Whether Government Code chapter 2256, the Public Funds Investment Act, applies to various funds administered by the Department of Banking (RQ-1105) Dear Commissioner Ghiglieri: The governing body of a state agency may, under Government Code section 2256.003(2), invest its public funds as chapter 2256, subchapter A permits. You ask how the tempublicfunds isdefined forpurposes ofthe Public Funds Investment Act (“act”), Government Code chapter 2256,’ and whether the Commissioner of Banking (“Commissioner ”) or the Department of Banking (“Department”) may invest under the act certain funds in the control of the Commissioner or Department. (To be succinct, we will hereafter use the term Commissioner to refer to both the Commissioner and the Department.) We define the tempublicfunds to include only funds that the state or apolitical subdivision collects in accordance with a general law and that will be used to benefit the public generally. Ofthe five funds you list, we conclude that four ofthem are not public funds that may be invested under the act. We also conclude the remaining fund is apublic fund, but the Commissioner may not invest it under the act because the Commissioner lacks statutory authority to do so. You further question whether funds that are deposited with the Texas Treasury Safekeeping Trust Company are invested under Government Code section 404.024 and thus beyond the act’s reach. Because none ofthe five funds you list may be invested under the act, we do not consider this question. Before we consider whether the act applies to particular funds, we will consider what funds may be invested under the act. We begin by looking at the act generally. Originally enacted in 1987, the act was intended to “broaden” certain governmental entities’ “investment opportunities.“2

‘See Gov’t Code 5 2256.001. zSee Fiscal Note, C.S.H.B. 1488,7Otb Leg., RX (1987). But see Gov’t Code 5 2256.024.Commissioner Catherine A. Ghiglieri - Page 2 (DM-489)

Thus, Government Code section 2256.003 authorizes, but does not require,’ the governing body of a state agency, among other entities, to “purchase, sell, and invest” certain public funds “in investments authorized under [chapter 2256, subchapter A] in compliance with investment policies approved by the governing body and according to the standard of care prescribed by Section 2256.006.“4 As section 2256.003 directs, an entity may avail itself ofthe investment opportunities that subchapter offers ifthe entity has adopted awritten investment policy that complies with section 2256.005. In addition, the investing entity must exercise the standard ofcare established in section 2256.006. Other sections in chapter 2256, subchapter A list authorized investments.5 The act permits agovernmental entity to invest funds and funds under its control, but the act defines the term funds to mean only certain public funds.6 For the purposes of our discussion here, the termfunds includes only those “public funds inthe custody ofastate agency or local government that the investing entity has authority to invest.“’ This offrice, in the past, has looked to statutes other than the act to determine an entity’s authority to invest.’ As you observe, the act does not define the term public funds. We will, consequently, seek to define it now. We conclude that the tempublicfunds denotes funds that belong to the Department, as an agent of the state, that the Department collected by virtue of some general law, and that are designated to a public purpose. We find that the phrase public funds has developed an accepted common-law meaning:9

The term “public funds” means funds belonging to the state or to any county orpolitical subdivision ofthe state; more specifically taxes, customs, moneys, etc., raised by the operation of some general law, and appropriated by the government to the discharge of its obligations, or for some public or

‘Government Code section 2256.003 states that an entity listed in that section “may” purchase, sell, and invest as chapter 2256, subchapter A describes. The word may generally cOnnOtes an option. See BRYANA. GARNER,A DICTIONARYOFMODERNLEGALUSAGE 502 (1987) (contrasting shall and may). -

‘As originally enacted, the act did not apply to state agencies generally. See Act of May 27, 1987,7Oth Leg., R.S., ch. 889, 5 2, 1987 Tex. Gen. Laws 2985, 2985. The legislature extended the act to encompass state agencies generally in 1995. See ActofMay 18, 1995,74thLeg., R.S., ch. 402, sec. 1,s 2256.003(2), 1995 Tex. Gen. Laws 2958, 2959. ?See Gov’t Code $5 2256.009 ,020.

%ze id. 4 2256.003

‘Id. 9:2256.002(3)(B) 8See Letter Opinion No. 96-074 (1996) at 2 (fading commissioners court’s authority to invest county funds in Local Gov’t Code 5 116.112).

‘See Gov’t Code 5311,011 (directing conshuer of statute toread words and phrases consistently with common usage or with acquired meaning).

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governmental purpose; and in this sense it applies to the funds of every political division of the state wherein taxes are levied for public purposes. The term does not apply to special funds, which are collected or voluntarily contributed, for the sole benefit of the contributors, and ofwhich the state is merely the custodian.“’ Funds a state agency possesses merely as custodian, for the benefit of contributors, are not public funds.” Thus, bond revenues the Lower Colorado River Authority uses for public purposes are public funds,12 while a private party’s child-support payments to a state agency for transmittal to the private beneficiaries are not public funds. ‘r Similarly, a Nebraska court determined that the state’s “Second Injury Fund,” mnded by annual assessments from each insurance company doing business in the state,r4 held in trust by the state,” and used to pay employees with a preexisting partial disability who subsequently suffer a compensable injury,16 is not apublic ftmd.‘7 In the Commissioner’s case, therefore, the Commissioner, acting for the Department (a state agency),r8 may purchase, sell, or invest in accordance with the act the Department’s public funds or public funds in its control ifthe Commissioner is statutorily authorized to invest the funds and ifthe Commissioner has complied with other requirements set forth in the act. Whether particular funds are public funds and whether the Commissioner has statutory authority to invest particular funds are questions of law that are well-suited to our consideration.

‘OPokornyv. WayneCounfy,33N.W.2d641,642(Mich. 1948)(quoting50C.J. 540,at854);occordSebastian County ChapterofAm. Red Cross v. Weather@-d, 846 S.W.2d 641,643 (Ark. 1993); Sherardv. Nebraska, 509N.W.2d 194, 199 (Neb. 1993) (per curiam); In re StateMotor Fuel Tax Liab., 273 N.W.2d 737, 742 (S.D. 1978) (citing Wood Eros. Constr. CO.Y.

Bngley, 6N.W.2d397,400(Iowa ~~~~));BLACK’SLAWDICTIONARY 1106(5thed. 1979);seealso Lower Cola. River Auth. Y.Chemical Bank & Trust Co., 185 S.W.2d 461, 468 (Tex. Civ. App.--Austin), aff’d, 190 S.W.2d48 (Tex. 1945).

“See Navajo Tribe v.Arizona Dep’t ofAdmix, 528 P.2d 623, 624-25 (Ariz. 1974) (en bane)

“See Lower Cola. River Auth., 185 S.W.Zd at 468.

“See People v. Cm, 342 P.2d 43,46 (Cal. Dist. Ct. App. 1959)

“See Sherard, 509 N.W.2d at 199.

“See id.

‘%‘eeNeb. Rev. Stat. 5 48-128(l)(a), (2)(a)

“See Sherard, 509 N.W.2d at 199. IsSee Gov’t Code 9 2256.003(2) (listing srote agency as govemmental entity that may invest under act).

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We will now analyze the Department’s authority under the act to invest each of the specific funds about which you ask. You list five funds about which you are specifically concerned:

1. Corporate and trust funds held pursuant to court-supervised receivership and liquidation of abank or trust company pursuant to TEX.FIN.CODE ANN. Sections 36.001 et seq. or TEX. F&v. CIV. STAT.ANN. arts. 342a-7.001 et seq. ; 2. Corporate and trust funds held pursuant to court-supervised receivership of aperpetual care cemetery pursuant to TEX.HEALTH& SAFETYCODE ANN. Section 712.0441(g) and TEX. CIV. PRAC. & REM. CODEANN. [chapter 641; 3. Seized trust funds of aprepaid funeral contract seller held pursuant to TEX.FIN. CODEANN. Sections 154.412 and 154.413: 4. The prepaid funeral contract guaranty fund established under TEX.FIN. CODEANN.Section 154.351 and7T.A.C. Sections25.17-25.20,operated and maintained by the advisory council created under TEX. FIN. CODE ANN. Section 154.355: and 5. The travel advance fund maintained by the Department. 

### Funds ofaliquidated, uninsured bank or atrust comuanv in conservatorsbiu The first funds you describe are the funds of a failed financial institution that the Commissioner controls as receiver or conservator ofthe financial institution. In the unlikely event that the Commissioner liquidates a bankI9 not insured by the Federal Deposit Insurance Corporation, *Ofor example, the Commissioner may serve as receiver,2’ Similarly, if the Commissioner declares a trust company insolvent:* an employee of the Commissioner may be

“SeeFin.Code336.201(authorizingCommissionertocloseandliquidatestatehankincertaincircumstances).

‘%e id.536.003(permittingCommissionertotenderstatebankthathasbeenclosedforliquidationtoFederal DepositInsuranceCorporationifbank’sdepositswereinsuredbythatcorporationondateofclosing). 2’See id. $536.202,,203;seealsoFrankJ.Skillem, Closing and Liquidation 

### of Banks in Texas, 26 SW. L.J. 830,833 (1972) (stating that FDIChasactedasreceiverforallstatebanksclosedinTexasinyearsprecedingarticle).

‘2See V.T.C.S.art.342a-6.104(b).

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appointed conservator. 23In either situation, the Commissioner “take[s] charge”*4 of the bank’s or trust company’s assets. The funds ofaliquidated, uninsured bank or trust company in conservatorship are not public mnds and, consequently, may not be invested under the act. Unquestionably, the funds do not belong to the state.25 Additionally, the Commissioner holds the funds merely as custodian, and the funds will not be used to discharge apublic purpose. Consequently, even when the Commissioner holds the funds as conservator of afailed trust company, in which capacity the Commissioner may exercise any of the powers of the directors, managers, managing participants, officers, and shareholders of the trust company, 26 the Commissioner may not invest the funds under the act. 

### Funds ofaliquidated Deraetual-care cemetery Second, you ask about perpetual-care-cemetery liquidation funds. The Commissioner may report aperpetual-care-cemetery corporation’s uncorrected violation oflaw to the attorney general, who must bring suit or quo warranto proceedings to forfeit the corporation’s charter and dissolve the corporation.z7 You state that the dissolution necessarily entails putting the corporation in receivership and that occasionally the Commissioner is appointed receiver. As receiver, the Commissioner “take[s] charge” of the corporation’s property.28 We conclude that these funds, like the financial institution’s liquidation funds, are not public funds; consequently, the Commissioner may not invest them under the act. As you suggest, these funds probably belong to the cemetery and to those who have purchased burial plots there; unquestionably, they do not belong to the state. Furthermore, the funds will not be used to discharge a public purpose; rather, there is a duty to persons interred in the private cemetery to expend the

“See id. arts. 342a-6.102, -6.104(b)(2), -6.107, -6.108. You indicate that in fact one trust company currently is in conservatorship. See Southwest Guar. Trust Co. v. Providence Trust Co., 970 S.W.2d 777, 781 n.7 (Tex. App.-- Austin 1998, pet. denied).

*‘See V.T.C.S. art. 342&6.107(a); Civ. Prac. & Rem. Code 5 64.031(l)

‘5Finance Code section 36.209pexmitsthereceiverto depositmoney collectedonbehalfofthe bankestate only in certain depositories: (1) the TTSTC; or (2) an insured state bank “if the receiver, using sound fmancial judgment, determines that it would be advantageous to do so.”

TSee V.T.C.S. art. 342a-6.107(b). A conservator’s powers may be limited, however, by the court order appointing the conservator and by the trust company’s articles of incorporation. See id. arts. 342a-3.002(3)(B), -6.107(b).

“See Health & Safety Code 5 712.0441(g); see id. 9 712.001(2) (defining Commissioner).

28SeeCiv. Prac. &Rem. Code 5 64.031(l).

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funds to maintain the cemetery in perpetuity. z9 Of course, if the Commissioner, aa receiver, has obtained acourt order permitting him orher to invest the perpetual-care-cemetery liquidation funds, the Commissioner may invest the funds, but not under the act.jO 

### Seized DreDaid-funeral-contract funds You ask third about seized prepaid-funeral-contract funds. The Commissioner”’ may seize the prepaid-funeral money collected by a person whose permit to sell prepaid-funeral benefits is canceled32 or who fails to renew apermit while the person has contracts outstanding.” In addition, the Commissioner may seek to liquidate the business and to have the court appoint areceiver.34 We presume the Commissioner may be appointed receiver. You inform us that the seized timds represent money paid or collected on trust-funded, prepaid-funeral contracts.35 Once again, we conclude that the prepaid-funeral-contract funds are not public funds that may be invested under the act. Private individuals paid the funds to aprivate company to cover the costs ofthose individuals’ funerals, relieving the survivors ofthe burden ofpaying funeral bills. The Commissioner, as receiver, holds the funds merely as a custodian for the beneficiaries, and, you inform us, funds are withdrawn upon the death of acontract holder to pay funeral expenses. As we stated with reference to the perpetual-care-cemetery funds, the Commissioner, as receiver of the prepaid-funeral-contract corporation, is statutorily authorized to invest the seized funds if the Commissioner has obtained a court order authorizing the Commissioner to do ~0.3~ The Commissioner’s investment authority under acourt order does not make the funds public funds for purposes of the act, however.

‘%ee Health & Safety Code 5 712.021(f)(l).

“Civil Practice and Remedies Code section 64.034, part of a chapter providing for receivership generally, permits areceiver to invest for interest any funds he or she holds, but only if the receiver has obtained a court order to which all parties have consented.

“See Fin. Code 5 154.002(2) (defming Commissioner).

‘*See id. $ 154.109 (providing grounds for cancellation or refusal to renew permit)

“‘See id. 5 154.107 (requiring permit holder to renew permit until outstanding contracts are discharged)

“See id. 5 154.414

“See also id. subch. F. You do not mention that prepaid funeral benefits also may be insurance funded. See id. subch. E.

‘%e Civ. Prac. &Rem. Code 5 64.034.

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### Prepaid-funeral-contract euarantv fund You ask next about the prepaid-funeral-contract guaranty fund. Finance Code chapter 154, subchapter H creates aguaranty fund, amassed from assessments on permit holders,37 to ensure that purchasers of prepaid-funeral-benefits contracts receive the benefits for which they paid?* The Commissioner isresponsible to maintain the fimd:” and the chapter also creates an advisory council to supervise the operation and maintenance of the guaranty fund.40 In our opinion, monies inthe prepaid-funeral-contract guaranty fund are not public funds and therefore may not be invested under the act. In particular, these monies are collected only from entities selling prepaid-funeral-benefits contracts. The funds are not tax revenues. Additionally, only purchasers ofprepaid-funeral-benefits contracts (orrather the survivors ofthe purchasers) may benefit from the funds ifthe seller has gone out ofbusiness. Consequently, we believe aTexas court would analyze the guaranty fund similarly to the Supreme Court of Nebraska’s analysis of that state’s Second Injury Fund in Sherard v.Nebraska4’ The Sherard court determined that the Second Injury Fund is not apublic fund for three apparent reasons. First, monies in the Second Injury Fund are raised by collecting annual assessments the state director of insurance levies on each insurance company doing business in the state.42 Thus the fund is not amassed through taxation or by a general law applicable to the public atlarge.43Second the funds are used to compensate employees, , hired with apreexisting permanent partial disability, who subsequently suffer another compensable injury. , 44 Thus it may be drawn upon only to benefit particular individuals.45 Finally, the fund is held in trust by the state treasurer. Q In our view, the fact that the guaranty fund about which you ask may or may not be held intrust isnot dispositive where the fund isnot amassed through general laws and where the fund benefits so few individuals.

“See Fin. Code 5 154.352.

‘SSeeid. $ 154.351.

‘?See id. ?See id. 9 154.355, .355(a). 4’Sherard, 509 N.W.Zd at 199.

‘2See id.; Neb. Rev. Stat. 5 48-128(2)(a). 43SeeSherard, 509 N.W.2d at 199 (in paa citing Allen v. Cily ofOmaha, 286 N.W. 916 (1939)). 4’See Neb. Rev. Stat. $48-128(1)(a), (Z)(a). %‘ee Sherard, 509 N.W.2d at 199.

“See id.; Neb. Rev. Stat. 5 48-128(2)(a).

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### Travel-advance fund Finally, we consider monies appropriated to fund travel advances that the Commissioner currently has deposited in achecking account at a state depository. Clearly, these are public funds for purposes of the act. Determining whether travel-advance tkds may be invested under the act involves at least one additional consideration, however: whether the Commissioner is statutorily authorized to invest the funds.47 Because we conclude that the Commissioner is not statutorily authorized to invest traveladvance funds, we must also conclude that travel-advance funds are not funds that may be invested under the act. We find no statutory authority forthe Commissioner to invest the Department’s funds generallf8 or these funds inparticular,@ and you do not cite any. Section 2256.003 ofthe act cannot itself function to statutorily authorize the Commissioner to invest the funds because it applies only to funds, which, according to the act’s definition, a governmental entity must be authorized by statute to invest, Without the requisite statutory authority to invest the Department’s funds, the Commissioner may not invest them under the act.”

“See Gov’t Code 5 2256,002(3)(B). Yiee, e.g., Fin. Code ch. 12

“‘Cf: Local Gov’t Code 5 116.112 (authorizing commissioners courts to invest county funds); Letter Opinion No. 96.074 (1996) at 2.

“As a state agency the Department possesses only those powers expressly delegated to it as well as those powers necessarily implied. ‘See Tri-City Fresh Water Supply Disf. No. 2 Y.Mann, 142 S.W.2d 945,946 (Tex. 1940); Harris County Water Control 8sImprovement Dist. No. 58 v. City ofHouston, 357 S.W.2d 189,795 (Tex. Civ. App.-- Houston 1962, writ ref d n.r.e.).

You state that some agencies, which you have apparently polled for guidance in your own situation, have concluded that their own travel-advance monies are invested as authorized by Government Code section 404.024 and therefore subject to investment under the act, even though the comptroller does not have custody of the funds. YOU question these agencies’ interpretation of the act. This issue is irrelevant to resolving your question, so we do not discuss it.

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### SUMMARY The Public Funds Investment Act, Government Code chapter 2256, subchapter A, applies only to certain public funds. Public 

### funds arethose funds belonging to the state or a political subdivision that the state has collected in accordance with ageneral law and that will be used to serve the public interest generally. A governmental entity may invest under the act only public funds that, among other things, the entity is authorized to invest by a statute other than the act. The Commissioner of Banking may not invest under the act funds of a liquidated, uninsured bank or atrust company in conservatorship because the funds are not public funds. Likewise, the Commissioner may not invest under the act funds of a liquidated perpetual-care cemetery. The Commissioner may not invest under the act seized prepaid-funeral-contract funds, nor may the Commissioner invest under the act money in the prepaidfuneral-contract guaranty fund. Finally, the Commissioner may not invest travel-advance funds under the act because the Commissioner does not have statutory authority to do so.

DAN MORALES Attorney General of Texas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General

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