Untitled Texas Attorney General Opinion ( 1957 )

‘1 PC. THE .&JTORNEY GENERAL OF TEXAS Bohbrable John H. Wlaters, oplnloa No. IN-129 Exeoutlve Director, State Departmentof Re:-May the State Departmedt .PubllcWeliare. of Public Welfare depos- Austin, Texas - it the proceeds from the sale of used commodity containers directly into the revolving fund of’ each Distribution’Die- trlct,tinderthe pro- visions of Rouse Blll Ro. 441, Ac’ta ,ol the 53rd Legislature,R.S., 1953, Chapter 305, page 757, (codlfled ae Seatlon 7-A Of AHlicle 695c Vetinon’eCivil Stbtutee)? Rer Doe8 the Rxecutlve Dir- e&or of the State Department of Public. fund Welfare have the legal right and aut4orlty to transfer funds out of the ~revolvlngfund la one District to the revqlvlng In an- othkr Dlstri?t under the provlsIon8 or Howe ‘Bill Ho; 441, Acts of the 53rd Legislature,R. S. 1953, a. 305, Pa 757 ````~‘i``ea~g”5~c``~o`` Dear Mr. Winter8: Civil Statutes)? This 0plnlon”lsln’respkse to yoti request of April 23, 1957, concernlagvarious questions arising under the pro- visions of House Bill 140.441 Act@ of’‘the. 53rd Legislature,‘ R. S. 1953, oh. 305, p. 757, fcqdiiledas Section 74 of Article 695c Vernon’s Civil Statutbe). Honorable John H. Winters, page 2 WW-129 In yaur request you pose questions on two aeparate and distinct problems. We shall atuwer your questiona on each problem In the order presented. Your questionsunder the first problem are aa follows: 1. "Pleaseadvise us whether or aot the State Department of Public Welfare may deposit the pro- ceeds from the sale of empty containers Into the revolving funds In the respectiveDistrlots'lnthe tt d if may the Department expend such fuidi'f% burpoi% set out In the law for the ex- penditure of the respectiverevolving funds? 2. "If, lugour opinion, the proceeds from the sale of empty containersmay not be deposited in the revolving funds in the respective~Dlstrlcts and ex- pended by the Department In accordancewith the pro- visions for the expenditureof such revolving funds, then is the Department required tomdeposit such funds In the 'CommodityDistributionFunds'in the State Treasury? If the funds are deposited in the Commodity DistributionFund' in.the State Treasury, can the Departmentuse such funds for the operation of the program without further specific appropriation therefor? Or, Is the provision in House Bill Ro. 441 authorizingthe expenditureof such funds sufflcl- ent apRropriatlonto enable the Department to use such funds? Section 1 of H. B. 441 of the 53rd De l'slature R. 9.,1953, after providing for the assessmentof han8llng charges against the recipientsof commodities,further provides in part as follows: "It Is further provided that the money to be assessed shall be paid to the State Departmentof Public Welfare and shall be used for no other pur- poses except for the necessary economic operation of the Program subject to rules and regulationswhich may be establishedby the State Department of Public Welfare, by the provisionsof this Act, and by the provisionsof the general appropriationActs of the Legislature. The fund8 received by the State Depart- ment of Public Welfare shall be deposited In a separ- ate account in the State Treasury, and shall be sub- ject to withdrawalsupon authorizationby the Executive Director of said Department. The State Department of public Welfare Is hereby authorizedand empowered to establish in each DistributionDistrict, under the Honorable John H. Winters, page 3 WW-129 direction of the State Department of Public Wel- fare, a revolving fund or petty cash expense fund for the purpose of making emergency payments for services or gooda, or other necessary emergency activities. The amounts of such funds shall be set by the Executive Director of the State Depart- ment of Public Welfare In relation to the antlcl- pated needs of the respective Districts and In accordancewith rules and regulations prescribed by the State Department of Public Welfare. Creation and reimbursementof said revolving fund shall be paid out of assesaments collected by the State Department of Public Welfare from the recipienta of commodities.* “r I(*” “The revolving fund at the disposal of each DistributingAgent shall.be deposited in a bank designatedby the EPxecutlveMrector of the State Department of Public Welfare in an account to be known aa the ‘CommodityDistributionFund' and such money shall be expended upon the authority of the DistributingAgent under the direction of the State Department of Pub110 Welfare. The Distributing Agent will make a monthly report to the State Depart- ment tf Public Welfare of funds received and disbursed . . . "* * *" "The State Department of Public Welfare is here- by authorized to sell used commodity containersand the proceeds from the sale of the used commodity containersIn each District shall be deposited in the special fund known as the lCommodltyDistribution Fund’ to be used for the purpose of furthering the commodity program and expended as hereinbeforeprovided." The above quoted provisions, In our opinion, require the State Department of Public Welfare to deposit the proceeds from the sale of the used commodity containers In the revolv- ing funda in the respective DistributionDistricts of the State. The Act, as quoted above, provides for the deposit of the revolving fund in a designatedbank in an account to be known as the "CommodityDistributionFund." The Act further provides that: Honorable John H. Winters, page 4 Ww-129 ” . . .In the event of the terminationof the Commodity DistributionProgram, the money remala- ing on hand la the Vommodlty DistributionFund’ In each District, after all due and just account8 are paid, will be refuftdedto the contributorson a pro rata basis. . . These two references to “CommodityDistributionFund” are the only Instances in which the term “CommodityDistribution Fund” is used In the Act, with the exception of Its use in the section which provides for the sale of used commodity containersand the deposit of the proceeds. It is also to be noted that the Act apeclficallyprovides that any funds received In the form of assessmentsby the State Department of Public Welfare be deposited in a separate account In the State Treasury. The only other reference’In the Act to the account In the State Treasury is to “the separate special fund In the bank in Austin created pursuant to and in accord- ance with the provisionsof this Act .” Thus In two specific Instances) other than In the section In question, reference la made to the funds on deposit In banks in the Distribution Distrlots, a8 the “CommodityDiatrlbutlonFund” and at no place In the Act Is reference made to the fund in the State Treasury as the “CommodityDistributionFund.” In addition the A& requires the DlstrlbutlngAgent In each Diatrlbutlon District to make a monthly report to the State Department of Public Welfare of funds received and disbursed. From our reading of the Act we are or the opinion that all funds re- ceived by the particularDistributionDistricts,with the exception of the proceeds from the sale of used commodity containers,are to come to the DistributionDistricts by way of the transfer of funds on deposit in the State Treasury. Therefore, the requirementthat a report of receipts be made would be of little value If In fact the Legislaturehad not intended the receipt of funds directly Into the revolving fund of the particularDistributionDistrict In the case of proceeds from the sale of used commodity contalners. For these reasons, we believe that the LegislatureIntended that the deposit of the proceeds of the sale of used commodity containersbe directly into the revolving fund In the reapsct- lve Districts In the State. You also ask If the Department may expend such funds for purposes set out in the law for the expenditureof the -o- spective revolving fundse The section of the Act vi&& authorizes the sale of used commodity container8and the deposit of the proceeds therefromalso provides that the depoalted funds “be used for the purpose of furthering the commodity program and expended as hereinbeforeprovided.” Honorable John H. Winters, page 5 WW-129 Prior paragraph8of Section 1 of the Act, which are set forth above, provide for the expenditureof funds which have been received by virtue of assessmentsand It Is our opinion that the phrase "the purpose of furthering the commodity program and expended as hereinbefore provided"refers to these prior provisionsand therefore the Department may expend such funds for purposes set out In the law for the expenditure of the respectiverevolving funds. In the light of our answer to your first question, it be- comes unnecessary to answer your second question. In connectionwith your Second problem you have posed the following questions: 1. "Does the Rxecutlve Director of the State Depzrt- ment of Public Welfare have the legal right and author- ity to transfer funds out of the revolving fund In one District to the revolving fund In another District?" 2. 'If you answer the first question ln the affirmative, then can the ExecutiveDirector of the Department trana- Ser the funds from the revolving fund In the former Cameron District (which Is no longer In existence)to the revolving fund in one or more other Districts that are Still active in the State?" 3. "If a direct transfer cannot be made, then what dls- position should the Department make of the revolving fund in the Cameron District which no longer exists? Should the balance of the revolving fund be transferred to the Wommodltg DistributionFund' In the State Treasury and, lf so, then can the Department expend this money In addition to the AppropriationItem No. 80 under the appropriationto the State Department of Public Welfare In House Bill MO. 140 (Departmental AppropriationBill)?' House Bill Ro. 441, Acts of the 53rd Legislature,R. 3. 1953, ch. 304, p* 757 (codifiedas Section 7-A of Article 695c, Vernon's Civil Statutes), after providing for the cre- ation of DistrlbutlonDl8trlcts and the asaeaameut of the parties who receive commoditiesunder the Act, states iu part: I( . . .The funds received by The State Depart- .mentof Public Welfare shall be deooaited in a senar- ate account In the State Treasury 'and shall be Subject to withdrawalsupon authorizationby the Executive Honorable John H. Winters, page 6 WW-129 Director of said Department. The State Depart- ment of Public~welfSire Is hereby autherieed and empowered to-establish In each Distribution Diatrict,~underthe direction of the State Depart- ment of Public Welfare, a revolving fund or petty cash expense fund for the purpose of-making emer- gency payments for services or goods, or other necessary emergency actlvitlea. .The amounts of such fund8 shall be set by the Executive Director of the State Department of Public Welfare in reia- tion to the anticipatedneeds of the reSPeCtiVe Diatrlct8 and In accordancewith rules and regu'la- tlons prescribedby the State Department of PubTiC w 1s C ti d reimbursementof id 1 &%% ah% b?p8a?d out of aSsessment~acolf``~e`` by the State Department of Public Welfare from the recipients of commodities. n. . .In the event of the terminationof the Commodity DlatrlbutionProgram, the money remain- ing on hand in the 'CommodityDistributionFund' in each District, after all due and just accounts are paid, will be refunded to the contributorson a pro rata basis. In the event of the termlna- tion of the Commodity Di8trlbutionProgram, the money remaining on hand in the'separate special fund in the bank in Austin created pursuant to and in accordancewith the provisionsof this Act, after all due and just accounts are paid will \e refunded to the contributorson a pro rata basis. (Emphasis ours) The above quoted provisions In general, and the underscored portions in particular,grant broad powers to the Executive Director of the State Department of Public Welfare in the administrationof the funds which are to be transferredto the indivldualDistributionDistricts, and provide for wide discretion in his granting of funds to the Districts. Both the initial appropriationfor the creaticn of these revolving funds, which is contained in Section 2 of House Bill Ro. 441, Acts of the 55rd Lcgialature,R.S.,1953, ch. 305, p. 757, and the subsequentbiennial Appropriation Bill, House Bill Ro. 140, Acts of the 54th Legislature,ch. 305, p. 1507, provide lump sum appropriationsfor the with- drawal of funds from the State Treasury, and neither appro- priation in any way indicatesany particularapproprfa+foo for any IndividualDistributionDistrict. Because of these powers and because we know of no constltutiona~or Statutory prohlbltion8which would prevent the transfer of funds be- tween DlatributionDistricts, it is our opinion that the Honorable John H..Winters, pai9 7 WW-129 Rxecutlve Director of the State Department of Public Wel- fare has the legal rlghtand authority to transfer funds out of the revolving fund In one district into the revolv- ing fund In another district. The provisionsquoted above provide for the refunding of any funds remaining in the revolving funds and In the State Treasury-in the event that the Commodlty'Di8trlbution Program 18 terminated. You state that the Departmenthas found that 'itwould be more economical and~to the beat inter- eat of the program for the Cameron DistributionDistrict to be discontinued. In view of the fact that the entire Commodity DistributionProgram is not being terminated,and In the light of our holding In the preceding question, It Is our opinion that funds from the former Cameron District may be tranaferredto one or more other Di8tPiCt8 that are still active in the State. In the light of our answers to the'above question, it becomes unnecessary to answer your third question regarding your second problem. SUMMARY (1) The State Department of Public Welfare may deposit the proceeds from the sale of used commodity containersdirectly Into the re- volving fund of each Distribution District under the provision8of Rouse Bill No. 441, Acts of the 53rd kgialature, R. 3~.1953, ch. 305, p. 757 (codifiedas Section 7-A of Article 695c, Vernon's Civil Statutes). (2) The Executive Director of the State Department of Public Welfare has the legal right and authority to transfer funds out of the revolving fund in one District to the revolv- ing fund In another District under the provisionsof House Bill No. 441, Act8 of the 53rd Legislature, R. 3. 1953, ch. 305, p. 757. (Codifiedas Section 7-A of Article 6950, Vernon's Civil Statutes). Honorable John H. Winters, page.8 w-129 Very truly yours, BY . WILL WIIaOH'~ '. Attorney General WCR:pf:rh APPROVED: OPlxIon COMMITTE H. Grady Chandler, Chairman James W. Wilson Ralph R. Rash Fred Werkenthln RRVIlNEDFORTRRA'J?l!ORIiRYGENRRAL By: Geo. P. Blackburn