The Honorable W. D. “Chris” Chrisner Chair~man, Performance Certification Board for Mobile Homes Box 12157, Capitol Station \ Opinion.No. H- 154 Re: Can the Department expend all ofthe money Austin, Texas 78711 raised by fees set by the Board and related Dear Mr. Chrisner: questions According to your letter requesting our opinion, the ~Performance Certification Board for Mcbile Homes, pursuant to the Texas Mobile Homes Standards Act (Article 5221f, Vernon’s Texas Civil Statutea, as amended, Acts 1971, 62nd Leg., ch. 896, p.2765), adopted a schedule of fees sufficient to pay the costs incurred inthe enforcement ofthe Act. Nevertheless, then 63rd Legislature in iLsAppropriations Act for 1974and 1975 (House Bill 139) appropriated an amount for this work less than the income that will be available. You ask:

“Can the department expend all ofthe money raised by fees set by the Board? ” Article 5221f, V.T. C.S., (hereafter “the Act”) provides generally for the establishment of standards for the manufacture ofmobile homes and their enforcement by aPerformance Certification Board It authorizes the Bureau of Labor Statistics to issue a certificate of acceptability to mobile home manufacturers. Section 8empowers the Bureau to inspect mobile homes at the place of manufacture and it is authorized by §10to have its inspectors travel within or without this state for purposes connected with the Act. Section 11ofthe Act provides in part:

p. 716The Honorable W. D. “Chris” Chrisner, page 2 (H-154)

“(a) The board [Performance Certification Board] with the advice ofthe department [of Labor Statistics] shall establish a schedule of fees to pay the cost incurred by the department for the work relating to the administration and enforcement ofthis Act
. . .

. . .

‘l(d) All fees shall be paid to the state treasury and placed in a special account for the use of the department inthe administration and enforcement ofthis Act. ” The Appropriations Act for fiscal 1974and 1975, aupra, atp. III-95 makes a specific appropriation for administrations ofthe Mobile Home Standards Act to be financed from “Texas Mobile Homes Standards Fund No. 82”
. The Constitution ofTexas, in 56ofArticle 8, provides:

“No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law I,

. . . A distinction may be made between funds deposited in the Treasury and those paid to the Treasurer, adeposit ofthe latter type being aubj.ect to the construction that it constitutes theTreasurer atruatae who may pay the funds to the person entitled to them without specific appropriation. Manion v. Lockhart, 114S.W. 2d 216(Tex. 1938); Friedman v. American Surety Co. of N. 151S.W. 2d 570 (Tex. 1941) However, there is nothing about the fees collected under the Act to indicate that they are to be held in trust, and it is our opinion that they may not be withdrawn from the Treasury without a specific appropriation. Compare Attorney General Letter Opinions No. MS-13 (1953) and Attorney General Opinions WW-442 (1958) and H-138 (1973). We are not unmindful ofthose decisions holding that where, in a general statute, funds are appropriated, it is unnecessary that they be appropriated inthe Appropriations Act. Pickle v. Finlqr , 44 S.W. 480 (Tex. 1898);National Biscuit Company v. State of Texas, 135S.W. 2d 687 (Tex. 1940). In the last cited-case the Supreme Court said:
p. 717. The Honorable W. D. “Chris” Chrisner, page 3 (H-154)

‘1. . . An appropriation can be made for all funds coming from certain sources and deposited in a special fund for a designated purpose. In such instances, it is not necessary for the appropriating Act to name acertain or even amaximum sum . . . ” (135 S.W. 2d at 693) However, we are unable to find inArticle 5221f, V.T.CS , any language of appropriation. The language of $1l(d), which we have quoted above, does no more than to “earmark” the funds for the particular purpose; compare Attorney General Letter Advisory No. 46 (1973). Furthermore, a statutory appropriation may be valid for nomore than two years. Article 8, 56ofthe Constitution of Texas; Attorney General Letter Advisory No. 46 (1973)and cases there cited. We are of the opinion, therefore, that your question should be answered: That the Department may not expend unappropriated money raised by fees set by the Board; it is limited to the amount appropriated by the Legislature. SUMMARY Even though the,fees paid into the Treasury pursuant to the Texas Mobile Homes Standards Act may exceed the amount appropriated by the Legislature for expenses of enforcing the Act, the Board **of** Labor Statistics is limited to the amount so appropriated and may not expend unappropriated funds for that purpose.

JOHN L. HILL Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee p. 718