Untitled Texas Attorney General Opinion ( 1971 )

. .
.THE ATTBECNEY GENERAL.
OF-XAS
AUSTIN. TEXAR 787ll
May 12, 1971
Honorable George W. McNiel Opinion No. M-858
State Auditor
Sam Houston State Office Bldg. Re: Whether trust funds
Austin, Texas 78711 collected under Article
5438d., V.C.S.? may be
expended for maintenance
of all State property
within the purview of
said statute, or must
such funds be spent only
on that part of such
property which earned
Dear Sir: same?
Your request for an official opinion of this office is
quoted as follows:
"The Treasurer General of the Daughters of the Republic
of Texas, Custodians of the Alamo, the French Legation,
and the DRT Museum joins me in requesting your opinion
as to whether the provisions of Article 5438d, of
Vernon's Annotated Civil Statutes, and the trust
character of the funds authorized to be collected
thereunder require a strict location by location
earmarking of the admission receipts and concession
profits which are dedicated to the maintenance and
repair of the State property and furnishings under
the custody and control of the Daughters of the
Republic of Texas, or whether the collective revenue
earned from these properties may be used for their
collective support without reference to any particular
earning property.
We are advised that these monies are accounted for
separately at the present time; that certain of the
properties are not self sufficient; that their
maintenance and operations are being supplemented
from unrelated dues income of the organization; and
-4161-
. .
Honorable George W. McNiel, Page 2 (M-858)
that they would benefit greatly if sufficient authority
now exists for the transfer of earnings between the
properties."
Article 5438d., Vernon's Civil Statutes, reads as follows:
"The Daughters of the Confederacy, Texas Division,
and the Daughters of the Republic of Texas, are
hereby authorized to charge admission fees to the
general public to visit State property under their
custody and control except the Alamo, and such organiza-
tions are authorized to maintain and operate in any
manner they deem appropriate concessions in State
property under their custody and control.
received from the admission charged and ally+F ro 1
obtained from the operation of concessions shall be
held in trust by such organizations to be expended
for the purpose of maintenance and repair of State
property and furnishings under the custody and control
of such organizations. The admission fee to be charged
the public shall be in the amount determined by such
organizations as in their discretion they deem best
for the interest of the State and the public. The
operation of concessions shall be under the control
of such organizations and they are authorized to
operate such concessions themselves or to enter into
necessary contracts with any other person, firm or
corporation for theoperation of concessions in any
manner they deem necessary for the best interest of
the State and public." (Emphasis added)
The above statute expressly creates a special trust fund
of the money received as admission fees from the general public
visiting such State property, and of all profits obtained from
the operation of such concessions, to be expended by such
authorized organizations for maintenance and repair of the State
property in the custody and control of such organizations. No
constitutional "special fund" is here involved. Gulf Insurance
Co. v. James 143 Tex. 424, 185 S.W.2d 966 (1945). The trust
fund is entirely a creature of the statute and the only
limitation placed upon its use by such organizations is that it
be expended for the maintenance and repair of the State's own
property that such organizations hold in trust for the State.
Thus, the fund is expendable only for a public purpose. The
general right of the'State to apply,its property'to such purpose
-4162-
Honorable George W. McNiel, Page 3, (M-858)
was declared bs the Suoreme Court of Texas in 1913 in the
case of Conley"v. Daughters of Republic 106 Tex. 80, 156
S.W. 197 (1913). Later In the same year the Austin Court
of Civil Appeals announced the same nrinciole of law in
Conley v. United Daughters of Confederacy L 164 S.W. 24,
7Tex.Civ.App. 1913. error ref.) and again'ln 1941 In the
case of King v. Sheppard, 157 S.W.2d G82 (Tex.Civ.kpp. 1941,
error ref. w.0.m.).
The statute does not apportion any part of such fund
to any particular property involved - it unequivocally appropriates
& such fees and income to all such propertys' maintenance
purposes, regardless of the proportion of such fees and income
attri,butableto any particular site by reason of visitors
thereto or concessions operated therein. All or any part of
this fund may ,be used for the maintenance and repair of all or
any of such properties, as deemed necessary for the best
interest of the State and public by the organizationsso
authorized by statute.
SUMMARY
The money collected as admission fees and con-
cession profits by reason of visitors to all or any
part of certain State properties, as authorized by
Article 5438d., V.C.S., may be expended for the main-
tenance and repair of all, or any of such properties
regardless of the proportion of such earnings that
may be attributable to any particular property, as
the organizations having same in their custody and
control deem necessary for the b t interest of the
State and public.
/7
General of Texas
Prepared by R. L. Lattimore
Assistant Attorney General
-4163-
Honorable George W. McNiel, Page 4 (M-858)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Marietta Payne
Sally Phillips
Jim Swearingen
Mike Stork
MEADE F:GRIFFIN
Staff Legal'Asslstant
ALFRED WALKER
Executive ~Assistant
NOLA WHITE
First Assistant
-4164-