Untitled Texas Attorney General Opinion ( 1963 )

Honorable J. M. Falkner
Chalrman, Finance Commission
Department of Banking
Austin 14, Tex?s
Opinion No. C-88
Re: Whether fees and monies
collected ana received
by the Regulatory Loan
Commissionerare to'be
held outside the State
Treasury or trani3mltted
to the State Treasurer
to be placed In the Qene-
Dear Mr. Falknert ral 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 'TexasRegulatory 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 Commissionerfor the en-
forcement of the Act under the dire+
tlon of The Finance Commission of Texas
or whether such monles should be trans-
mitted by the Commissionerto,the State
Treasurer to be placed In the General
Revenue Fund."
Senate Bill 15, Acts of the 58th Legislakre, Regu-
lar Sessioni I,san Act to classify loans and lenders and
pr;;;;; for their regulation. We quote the following pro-
ertinent to your question. Subalvislon (a) of _
Section t provides:
-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 Com-
mikwlon, subject to It8 order6 and dl-
reotlons. The commlealoner Is authoris-
ed 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 Oom-
mlrrlon, 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 au-
ditor In thb ILmb manner as mtatb dbp*rt-
mentr, and the aotual oostn of ruoh audit
shall bb paid t0 the Itate audltor f’r?Oms
Wiz;rda of thb Regulatdry LOan Oonnnir-
The Flaanob Oommlrrion rhal2, aa
of Dbo;mt5er 31, 1963, end anmA thbPb-
aftbr report to thb Oovbrnor oi t 3:
b Statb
the rboelptr,and di~biWbIUbkltlr.Of
oi Qeacan,
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 appll-
oant In the event of denial.”
Ron. J. M. Falkner, Pa@ 3 (C-88)
f-
Subdivision (a) of Section 12 provides:
"At least once each year and at such
other times as the commissionershall deem
necessary, the commissioner,or his duly
authorized representativeshall 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.'Ifithe course of such examination,the
commissioneror his duly authorized represen-
tative 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
commissioneror his duly authorized repre-
sentative 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 com-
missioner is authorized or required by this
Act to consider, Investigate,or secure ln-
formation. Any licensee who shall fall or
refuse to let the commissioneror his duly
authorized representativeexamine or make
copies of such books, or other relevant docu-
ments 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 lnforma-
tlon obtained In the course of such examl-
nation shall be confldentlal. Each'llcensee
shall pay to the commissionerthe cost of
the examination,but not to exceed Fifty
Dollars ($50) per day per examiner and the
total cost of examinationsassessed and
charged a licensee In any one calendar year
shall not exceed Two Hundred Fifty Dollars
($240) for eacfillcentieaoffice."
Other provisions authorize the Regulatory LOap Com-
mlsaloner 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 Com-
missioner 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 Investigationfee shall be retained by
the ~ommlssloner,but the annual fee.shall be returned to
the applicant In the event of denial." 'If monies recelv-
ed by the Commissionerwere to be deposited In the Treas-
ury, 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 Constl-
tutlon 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). Further-
more, no duty ls~lmposed by the provlslons of Senate Bill
15 on the Comptroller of Public Accounts or the State Treas-
urer to accept fees for deposit.
Under subdivision (b) of Section 4, above quoted,
the CommissionerIs required to make a full and complete
report of the receipts and expendituresof 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 Sec-
tion 4 of Senate Bill 15 are similar to the provisions con-
tained 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 of-
fice that the expenses of the Banking Department are paid
out of fees, penalties and reyenues collected by the Depart-
ment and the dlspoeltlo of such monies Is governed by the
provlalona of Article 3E2-112, Vernon's Civil Statutes.
In Attorney Oeneral~s Opinion WW-725 (i959), It was
stated:
"It Is noted that such funds axe re-
quired to be retained and held by the Bank-
lng Department. The Banking Department Is
further authorized to expend,suchfunds 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 constructionof
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 Commissionmay, 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 Artl-
cle $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 ClassiflcatlonPlan, established by the
Position ClasslflcatlonAct of 1961, does not apply to the
Finance Commission.
It Is noted that the disbursementunder Article 342"
,112 by the Banking Department Is directly contrary to the
dispositionof fees under Article 363, Vernon's Civil Stat-
utes, which provides:
"All sums collected as examination
fees shall be paid by the.Commlsslonerdl-
rectly to the State treasury to the credit
of the General Revenue Fund. Expenses of
examination and of the CommissionerIn en-
forcing the provisions of this title shall
be paid upon the certificateof the Commls-
sloner by warrant of the Comptrollerupon
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 Commissionand the State Auditor,
It Is our opinion that fees and monies collected by the Regu-
latory Loan Commissioner shall be retained by him and expend-
ed forthe purpose&of the enforcementof the provisions of
Senate Bill 15, Acts of the 58th Legislature,Regular Ses-
sion, under the direction of the Finance Commission of Texas,
as provided In Senate Bill 15. You are further advised that
such monies cannot be transmittedto the State Treasurer and
are not subject to appropriationby 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 LegIs-
lature, Regular Session, known as the Texas
Regulatory Loan Act" shall be retained by
the Regulatory Loan Commissionerto be used
by the CommissionerIn the enforcementof
the provisions of Senate Bill 15, under the
direction of the Finance Commissionof Texas,
as provided for In Senate Bill 15, and such
monies are not subject to appropriationby
the Legislature.
Yours very truly,
WAGGONER CARR
Attorney General
JR:ms
By John Reeves
Assistant
APPR(ylED:‘
OPINION COMMITI'EE
W. V. Geppert, Chairman
Albert P. Jones
J. C. Davis
Gilbert Hargrave
Scott Garrison
APPROVEDFOR THEATTORNEXGENERAL
Bs: Stanton Stone
-432"