### THE ATTORNEY GENERAL OF TEXAS

Richards Opinion No.JM-1230

Re: Applicability of State Funds Honorable AnnW. State Treasurer P. 0. Box 12608 Capitol Station Austin, Texas 78711 October 5, 1990

Reform Act, Government Code section 404.091, et sea., to fees collected by the Board ofMedical Examiners (RQ-2115)
DearMs. Richards:
You have requested our opinion regarding the applicability of the State Funds Reform Act, Texas Government Code section 404.091, et sea to fees collected by the Texas State Board ofMedical Ekaminers. Sections 404.091 through 404.094 provide:

s 404.091. Short Title This subchapter may be cited as the State Funds Reform Act. § 404.092. Definition
Inthis subchapter, "state agency" means an office, institution, or other agency that is inthe executive branch of state government, has authority that isnot limited to a geographical portion of the state, and was created by the constitution ora statute of this state, but does not include an institution of'higher education as defined by Section 61.003, Education Code.
g 404.093. Applicability Of Subchapter; Exemptions (a)This subchapter applies to a state agency only to the extent that it is not otherwise required todeposit funds in the treasury.

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(b)This subchapter does not apply to: (1)funds pledged to the payment of bonds, notes, or other debts ifthe funds are not otherwise required tobe deposited inthe treasury;

(2)funds held in trust or escrow for the benefit ofaperson or entity other than a state agency:

(3)funds set apart out of earnings derived from investment of funds held in trust forothers, asadministrative expenses of the trustee agency:

(4) funds, grants, donations, and proceeds from funds, grants, and donations, given intrust to the Texas State Library and Archives Commission for the establishment and maintenance of regional historical resource depositories and libraries inaccordance with Section 441.074; or

(5)funds under themanagement of the secretary-treasurer of theAnatomical Board of the State ofTexas, asprovided byArticle 4589, Revised Statutes.
5 404.094. Funds tobe Deposited in Treasury (a)Fees, fines, penalties, taxes, charges, gifts, grants, donations, and other funds collected orreceived by a state agency under law shall be deposited in the treasury, credited to a special fund or funds, and subject to appropriation only for the purposes for which they are otherwise authorized tobe expended or disbursed. A deposit shall be made at the earliest possible time that the treasury can accept those funds, but not later than the third business day after the date of receipt. However, if an agency determines that for seasonal or other extraordinary reasons deposits cannot be made by the third business day after the date of receipt, the agency shall provide written notice of the determination to the state auditor and treasurer with an explanation of the circumstances that require the delay. IfHonorable Ann W.Richards -Page 3 (JM-1230)

the state auditor finds that an agency has not complied with this subsection, the state auditor shallmake an estimate of any resulting financial loss to the state, taking into consideration compliance costs that would have been additionally incurred by the agency, and report the amount to the legislative audit committee, the governor, and the treasurer. (b)Money that isrequired by this subchapter orby another law tobedeposited in the treasury shall bedeposited to the credit of the general revenue fundunless the money is expressly required to be deposited to another fund, trust fund, or special account not in the general revenue fund. This subsection does not affect the authority of the comptroller or the treasurer to establish and use accounts necessary to manage and account for state revenues and expenditures.
TheMedical Practice Act, article 4495b, V.T.C.S., creates two fundswithin the Board ofMedical Examiners. Section 3.10(a) thereof provides:

(a) All annual reaistration fee c llected bv the board shall be DlaCed inTheo State Treasurv to the credit of themedical reaistration fund. The feesdeposited to this special fund shall be credited to the appropriations of the board andmay be spent only asprovided by then General Appropriations Act, thisAct, or other applicable statutes. Money inthat fund may be used by the board and under itsdirection in the enforcement of this Act, the prohibition of the unlawful practice of medicine, the dissemination of information toprevent theviolation of the laws, and the prosecution of those who violate the laws. All distributions fromthe fundmay bemade only uponwritten approval of the secretary-treasurer of theboard or his designated representative, and the comptroller shall upon requisition of the board fromtime to time drawwarrants upon the State Treasurer forthe amounts specified inthe requisition. (Emphasis added.) Section 2.09(k) provides:

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(k)The board shall establish by rule a reasonable charge forthose fees not specifically determined but authorized by this Act. The board may notwaive collection of any fee orpenalty. The board shall place all fees received under authority of this Act, not otherwise specified, into themedical licenslna f nd The board isauthorized and shall by anzua; budget determine e of handlina the funds and thepurpose, consistentwith thisAct, forwhich the samemay be used. The budgeted expenses authorized by theboard shall not be acharge upon the general revenue of the state nor paid from the general revenue. (Emphasis added.) Section 3.10(a) clearly requires that the board place "[a]11 annual registration fees . . .in the State Treasury to the credit of the medical registration fund." Thus, irrespective of the State Funds Reform Act, the Medical Practice Act itself directs that annual registration feesbe deposited in the State Treasury. Section 2.09(k) is silent as to the proper depository for fees that comprise the "medical licensing fund." The statute states merely that the Board ofMedical -Examiners "shall . . . determine the manner of handling the funds . . . .I'On its face, this language isnot inconsistentwith the deposit of these funds inthe Treasury, and, absent further inquiry into the relevant legislative history, a convincing argument could bemade that the State Funds Reform Act applies to the "medical licensing fund." Indeed, both the State Auditor and the State Treasurer have made administrative determinations that fees attributable to themedical licensing fundmust beplaced in the Treasury. The rather convoluted history of that statute, however, requires adifferent conclusion.
As originally enacted in 1981, the State Funds Reform Act, then article 4393c, V.T.C.S., contained the following five exemptions:

Sec. 3. (a) ThisAct applies to each state agency only to the extent that it is not otherwise required to deposit funds in the state treasury. (b)This Act does not apply to:

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. (1)funds pledged to thepayment ofbonds, notes, or other debts ifthe funds are not otherwise required to bedeposited in the state treasury; (2)fundsheld intrust or escrow for the benefit of anyperson or entity other than a state agency: (3) funds set apart out of earnings derived from investment of funds held in trust for others, as administrative expenses of the trustee agency: (4)funds, grants, donations, andproceeds from funds, grants, anddonations, given in trust to the Texas State Library andArchives Commission for the establishment and maintenance of regional historical resource depositories and libraries in accordance with Section 2A, Chapter 503, Acts of the 62nd Legislature, Regular Session, 1971, as amended (Article 544213,Vernon's Texas Civil Statutes); or (5)the denosit of funds for state aaenties subject to review under the Texas Sunset && (Article 5429k, Vernon's Texas Civil Statutes) for 1981.which shall be determined bv each aaencv's enablina statute.1
Acts 1981, 67th Leg., ch. 835, at 3189-90 (emphasis added).
The Board of Medical Examiners is an agency that was subject to review under the Texas Sunset Act in 1981. As a result, the State Funds Reform Act, at least initially, was not applicable to the board.
In 1985, the statute was amended three times. One amendment, Acts 1985, 69th Leg., ch. 479, 5 93, at 1706, simply changed the statutory reference in the fifth

1. This provision was added as a house floor amendment. Debate onH.B. 1623 on the Floor of the House, 67th Leg. (Apr. 21, 1981) (tape available from House Technical Services).

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. exemption to the current designation. Chapter 479 explicitly states that it isa non-substantive revision. UL.61, at 1652-53. Another amendment, Acts 1985, 69th Leg., ch. **485,** 5 8,at 2057-58, was part ofabill relating to the State Anatomical Board, and itamended the State Funds Reform Act by adding a sixth exemption. Finally, the 69th Legislature amended the Treasury Act, and as apart thereof, the State Funds Reform Act. As adopted therein, the portion regarding exemptions, section 4.003 of the act, provides:

(a)This chapter applies to a state agency only to the extent that it isnot otherwise required todeposit funds inthe treasury. (b)This chapter **does** not apply to: (1)funds pledged to the payment of bonds, notes, orother debts ifthe funds are not otherwise required tobe deposited in the treasury;

(2)fundsheld in trust **or** escrow for the benefit ofaperson or entity other than a state agency:

(3)funds set apart out of earnings derived from investment of funds held in trust for others, as administrative expenses of the trustee agency; or

(4) funds, grants, donations, and proceeds from funds, grants, and donations, given intrust to the Texas State Library and Archives Commission forthe establishment and maintenance of regional historical resource depositories and libraries inaccordance with Section ZB, Chapter 503, Acts of the 62nd Legislature, Regular Session, 1971 (Article 5442b, Vernon‘s Texas Civil Statutes).
Acts 1985, 69th Leg., ch. 240, at 1214-15.
It isnot clear why the exemption concerning the 1981 sunsetted agencies was omitted from chapter 240. The fact that itwas included inchapter 485 (relating to theAnatomical Board), a substantive revision, however, means that, in 1985, the exemption continued tobe apart of the State

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Funds Reform Act, and, as such, itremoved the Board of Medical Examiners fromthe purview of that statute.2 This result is supported by our discussion inAttorney General Opinion JW-479 (1986).
In 1987, the legislature codified the State Funds Reform Act aspart of title 4of theGovernment Code. The portion relating to the exemptions, section 404.093 of the code, included theAnatomical Board exception, but omitted the exception regarding the agencies sunsetted in 1981. The provision, as adopted, states:

(a)This chapter applies to a state agency only to the extent that it isnot otherwise required todeposit funds inthe treasury. (b)This chapter does not apply to: (1)funds pledged to the payment of bonds, notes, or other debts ifthe funds are not otherwise required tobe deposited in the treasury:

(2)funds held in trust or escrow for thebenefit of aperson or entity other than a state agency;

(3)funds set apart out of earnings derived from investment of funds held in trust for others, as administrative expenses of the trustee agency;

(4) funds, grants, donations, and proceeds from funds, grants, and donations, given in trust to the Texas State Library and Archives Commission forthe establishment and maintenance of regional historical resource depositories and libraries inaccordance with Section 441.074; or

2. Furthermore, section 2 of chapter 240 repeals certain other statutes, but not the exemption for sunsetted agencies. In addition, it declares that "any amendment, revision, or reenactment ifany of these statutes by the 69th Legislature ispreserved and given effect as apart of this bill." Id. at 1215.

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(5)funds under themanagement of the secretary-treasurer of theAnatomical Board of the State of Texas, asprovided byArticle 4589, Revised Statutes. (V.A.C.S. Art. 4393-1, Sec. 4.003.)
Acts 1987, 70th Leg., ch. 147, g 1,at 358. Chapter 147 specifically declares that it "is intended as a recodification only, andno substantive change inthe law is intended by this Act." Acts 1987, 70th Leg., ch. 147, 5 2,at 536. Nevertheless, title 4of the Government Code, as issued in 1990 and asquoted at thebeginning of this opinion, contains no reference to the now apparently forgotten exemption foragencies sunsetted in 1981. Title 4of theGovernment Code, aspresently constituted, fails to offer any clue that the State Funds Reform Act is inapplicable to the Board ofMedical Examiners, and absent examination of thehistorical circumstances, we, like the auditor and the treasurer, would certainly determine that the act applies to the board. The supreme court, however, has recently made clear that this isnot a course available to us. In Johnson v. Citv of FortWorth, 774 S.W.2d 653 (Tex. 1989), the court declared:

When a conflict exists between a former statute and arevision made pursuant to the legislature's directive to the Texas Legislative Council to make anonsubstantive revision of the statutory law, the former statute will control.
Id. at 654-55; see alsoMinton v. Perez, 783 S.W.2d 803, 805 (Tex.App. -SanAntonio 1990, nopet.) Accordingly, we are compelled to conclude that the State Funds Reform Act isnot applicable to the Texas State Board ofMedical Examiners.
SUMMARY The State Funds Reform Act, Texas Government Code section 404.091, et se ., is not applicable to fees collected by the Texas State Board ofMedical Examiners. All annual registration fees collected by the board must, however, be deposited inthe State

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Treasury pursuant to section 3.10(a) of the Medical Practice Act, article 4495b, V.T.C.S. Very truly yo , 

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JIM MATTOX Attorney General of Texas
MARY KELLER First Assistant Attorney General
IOUMCCRKARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RENEA HICKS Special Assistant Attorney General
RICK GILPIN Chairman, opinion Committee Prepared byRick Gilpin Chairman, Opinion Committee

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