Honorable J. M. Falkner 

Chalrman, Finance Commission 

Department of Banking 

Austin 14, Tex?s 

Opinion No. C- 88 

Dear Mr. Falknert 

Re: Whether fees and monies 

collected ana received 

by the Regulatory Loan 

Commissioner are to'be 

held outside the State 

Treasury or trani3mltted 

to the State Treasurer 

to be placed In the Qeneral Revenue puna. 

Your request for an opinion on the above subject 

matter poses the following question: 

"The que%tion to be aeciaea'is 

whether under the provisions of the 

Act penate Bill 15, Acts of the 58th 

Legislature, Regular Session, known 

as the 'Texas Regulatory Loan Act'-/ 

hereafter referred to, such fees Xnd 

monies when collected and received by 

the Regulatory Loan Commissioner shall 

be placed In a separate fund to be 

used by the Commissioner for the enforcement of the Act under the dire+ 

tlon of The Finance Commission of Texas 

or whether such monles should be transmitted by the Commissioner to,the State 

Treasurer to be placed In the General 

Revenue Fund." 

Senate Bill 15, Acts of the 58th Legislakre, Regular Sessioni I,s an Act to classify loans and lenders and 

pr;;;;; for their regulation. We quote the following prot 

ertinent to your question. 

Section provides: 

Subalvislon (a) of _ 

-427- 
Hon. J. M. Falkner, page 2 (C-88) 

“There is hereby created the offlce 

of Regulatory Loan Commlsaloner of the 

State of Texas. The oommlaal6ner ehall 

be appointed by the Flnanoe Commllsslon 

and shall serve at the pleasure of the 

Fliianoe Cbmmlselon. The oommlal3loner 

shall be an employee of the Flnknoe Commikwlon, subject to It8 order6 and dlreotlons. The commlealoner Is authorised to appoint and remove examiners and 

employeea, and to preeorlbe the dutlea 

of eaoh. I’ 

8ubdlvlrlon (b) of Seotlon 4 provider! 

9ha oommlrrlonrr &all, from tlmb 

to time, a8 dlreoted by the binmoo Oommlrrlon, rubmlt to the Blnanoa Oonunlrrlon 

(L Pull and oomplete report of thr rroriptr 

and racpendltures of this officei and the 

binanob 0omml8rlon may, from time to time, 

oataaln~ the flnanolal reobrda of the Rogu- 

.latory Loan Oommlooloner, or pauue them 

to bb bammlnrd, In addition, the oifioe 

of Rbgulrtory Loan Oommirlrloner Wall bb 

Wdltbd from time to tlme by thb &bate auditor In thb ILmb manner as mtatb dbp*rtmentr, and the aotual oostn of ruoh audit 

shall bb paid t0 the Itate audltor f’r?Om s 

Wiz;rda of thb Regulatdry LOan OonnnirThe Flaanob Oommlrrion rhal2, aa 

of Dbo;mt5er 31, 1963, end anmA thbPbaftbr report to thb Oovbrnor oi t 3: bStatb 

oi Qeacan, the rboelptr, and di~biWbIUbkltlr. Of 

tbcHlob of the Regulatory Loan Oomlr~ 

alonbr for eaoh oalmdar yew.” 

8ubdlvlrlon (b) of Seotlon 8 provider8 

“If the oommlesloner rhall not 80 find 

’ 

annual fee shall be returned to the applloant In the event of denial.” 
Ron. J. M. Falkner, Pa@ 3 (C-88) 

fSubdivision (a) of Section 12 provides: 

"At least once each year and at such 

other times as the commissioner shall deem 

necessary, the commissioner, or his duly 

authorized representative shall make an 

examination of the place of business bf 

each licensee and shall Inquire Into and 

examine the loans, transactions, books, 

accounts, papers, correspondence, ana 

records of such licensee Insofar as they 

pertain to the business regulated'by this 

Act.'Ifi the course of such examination, the 

commissioner or his duly authorized representative shall have free access to the office, 

places of buslness, files, safes and vaults 

of such licensees, and shall have the right 

to make boples of such books, accounts, 

9a9ers, correspondence and records. The 

commissioner or his duly authorized representative may, during the course of such 

examination, administer oaths and examine 

any person under oath upon any subject 

pertinent to any matter about which the commissioner is authorized or required by this 

Act to consider, Investigate, or secure lnformation. Any licensee who shall fall or 

refuse to let the commissioner or his duly 

authorized representative examine or make 

copies of such books, or other relevant documents shall thereby be deemed in violation 

of this Act and such failure 6r refusal 

shall constitute ground8 for the suspension 

or revocation of such license. The lnformatlon obtained In the course of such examlnation shall be confldentlal. Each'llcensee 

shall pay to the commissioner the cost of 

the examination, but not to exceed Fifty 

Dollars ($50) per day per examiner and the 

total cost of examinations assessed and 

charged a licensee In any one calendar year 

shall not exceed Two Hundred Fifty Dollars 

($240) for eacfi llcentiea office." 

Other provisions authorize the Regulatory LOap Commlsaloner to assess certain fees or charges on llceneees 

provided for In the Act. 

-429- 
Hon. J.. M. Falkner, page 4 (C-88) 

- 

A careful study of all the provisions of the Act 

reveals that nowhere In the Act Is the RegulatoryLoan Commissioner nor anyone else directed tb deposit any fee or 

charge or any sum of money In the State Treasury to the 

deposit of any particular fund. On the contrary, we find 

language that "The Investigation fee shall be retained by 

the ~ommlssloner, but the annual fee.shall be returned to 

the applicant In the event of denial." 'If monies recelved by the Commissioner were to be deposited In the Treasury, the annual fee could not be returned to the applicant 

In the event of denial, as provided In subdlvlslon (b) of 

Section 8 of Senate Bill 15, since no money can be drawn 

from the Treasury, but In pursuance of specific approprl&- 

tlons made by law. Section 6 of Article VIII of the Constltutlon of Texas; Pickle v. Finley, 91 Tex. 484, 44 S.W. 480 

$;zg); Llghtfoot v. Lane, 104 Tex. 447, 140 S.W. 89 (1911); 

. nyder, bb Tex. 687, 18 S.W. 106 (1886). Furthermore, no duty ls~lmposed by the provlslons of Senate Bill 

15 on the Comptroller of Public Accounts or the State Treasurer to accept fees for deposit. 

Under subdivision (b) of Section 4, above quoted, 

the Commissioner Is required to make a full and complete 

report of the receipts and expenditures of his office. The 

State Audltoi; Is required to audit his office from time 

to time and "the actual costs of such audit shall be paid 

to the state auditor from the funds of the Regulatory Loan 

Commlssloner." The provisions of subdivision (b) of Section 4 of Senate Bill 15 are similar to the provisions contained In Article 342-112, Vernon's Civil Statutes, with 

the exception of the provision that the revenues shall be 

paid into the General Revenue Fund of the State and ,the 

provision that the expenses Incurred shall never be a charge 

against the funds of the State. 

It has been held on numerous occasions by this office that the expenses of the Banking Department are paid 

out of fees, penalties and reyenues collected by the Department and the dlspoeltlo 

provlalona of Article E 

of such monies Is governed by the 

3 2-112, Vernon's Civil Statutes. 

In Attorney Oeneral~s Opinion WW-725 (i959), It was 

stated: 

"It Is noted that such funds axe required to be retained and held by the Banklng Department. The Banking Department Is 

further authorized to expend,such funds for 

the payment of expenses of the Department." 

-430- 
Hon. J. M. Falkner, page 5 ‘(C-88) 

P 

In Attorney General's Opinion ww-608 (1959), it 

held that the expenditure of Banking Department funds 

could not be made by the State Building Commlsslon and 

that any contract entered Into for the construction of 

office space of the Banking Department would have to be 

executed by that agency. 

In Attorney General's Opinion W-500 (1958), It was 

held that the Finance Commission may, under the provisions 

of Article 342-112, authorize the expenditure of money for 

costs and other expenses Incurred by the State Banking Board 

In the trial of a case brought under the provisions of Artlcle $2-115, Vernon's Civil Statutes. 

In Attorney General's Opinion WW-1095 (1961), It 

was held that In view of the provisions of Article 342-112, 

that the Position Classiflcatlon Plan, established by the 

Position Classlflcatlon Act of 1961, does not apply to the 

Finance Commission. 

It Is noted that the disbursement under Article 342" 

,112 by the Banking Department Is directly contrary to the 

disposition of fees under Article 363, Vernon's Civil Statutes, which provides: 

"All sums collected as examination 

fees shall be paid by the.Commlssloner dlrectly to the State treasury to the credit 

of the General Revenue Fund. Expenses of 

examination and of the Commissioner In enforcing the provisions of this title shall 

be paid upon the certificate of the Commlssloner by warrant of the Comptroller upon 

the State treasury." 

See Attorney General's Opinion No. O-3928 (1941). 

In view of the duties lmposea upon the Regulatory Loan 

Commissioner, the Finance Commission and the State Auditor, 

It Is our opinion that fees and monies collected by the Regulatory Loan Commissioner shall be retained by him and expended forthe purpose&of the enforcement of the provisions of 

Senate Bill 15, Acts of the 58th Legislature, Regular Session, under the direction of the Finance Commission of Texas, 

as provided In Senate Bill 15. You are further advised that 

such monies cannot be transmitted to the State Treasurer and 

are not subject to appropriation by the Legislature. 

"431" 
Hon. J. M. Falkner, Page 6 (C-88) 

SUMMARY 

Monies collected pursuant to the provisions 

of Senate Bill 15, Acts of,the 9th LegIslature, Regular Session, known as the Texas 

Regulatory Loan Act" shall be retained by 

the Regulatory Loan Commissioner to be used 

by the Commissioner In the enforcement of 

the provisions of Senate Bill 15, under the 

direction of the Finance Commission of Texas, 

as provided for In Senate Bill 15, and such 

monies are not subject to appropriation by 

the Legislature. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

JR:ms 

APPR(ylED: ‘ 

OPINION COMMITI'EE 

W. V. Geppert, Chairman 

Albert P. Jones 

J. C. Davis 

Gilbert Hargrave 

Scott Garrison 

By John Reeves 

Assistant 

APPROVEDFOR THEATTORNEXGENERAL 

Bs: Stanton Stone 

-432"