Untitled Texas Attorney General Opinion

The Attorne,y General of Texas
JIM MATTOX
Ap.ril18, 1986
Attorney General
Sucmme Court Sulldina Mr. Marvin J. Titrman Opinion No. JM-479
P.~b. BOX 12548 - Executive Director
Austin. TX. 78711. 2548 Texas Surplus Property Agency FCC?.:Application of the State
5121475.2501
P. 0. Box 8120 Funds Reform Law to the Texas
Telex 9101874.1367
Telecopier 512/475.0266
San Antonio, Texas 78208 Surplus Property Agency
Dear Mr. Titzman:
714 Jackson, Suite 700
Dallas, TX. 75202-4508
21417428944
You have asked whether the funds of the Texas Surplus Property
Agency collected as charges, fees, interest and returns from invest-
ments are subject to the State Funds Reform Act of 1981 (now chapter 4
4824 Alberta Ave., Suite 160 of the Treasury Act, article 4393-1, V.T.C.S.).
El Paso, TX. 79905.2793
915/533-3484
The Texas Surplus Property Agency was created in 1971 by the
enactment of article 6252-6b, V.T.C.S., to constitute the "designated"
- 1 Texas, Suite 700 state agency for purposes of the Federal Property and Administrative
,us,on, TX. 77002-3111 Services Act of :;949, as amended, 40 U.S.C. 484(j). That federal
713i2236S86 statute authorizea the federal administrator of general services to
donate property to the various states for redistribution to public
agencies and educational or public health institutions or organiza-
806 Broadway, Suite 312
Lubbock, TX. 79401-3479
tions. 40 U.S.C. 484(j)(2)(3). The federal law specifies that where
806,747.5238 the "designated" state agency is allowed by state law to collect
service charges from recipients of donated property, the method of
establishing the charges is to be set out in the state plan of
4309 N. Tenth, Suite B
McAllen, TX. 78501-1685
operation submitted to the Administrator, but the federal statute does
512/682-4547 not specify what is to be done with the charges collected. Federal
regulations provide guidelines for some uses, but they do not conflict
with Texas law. 41 C.F.R. 101-44.202(c)(S).
200 Main Plaza. Suite 4M)
San Antonio, TX. 782052797
51212254191
There is no federal provision of which we are aware that
prohibits the deposit of such funds in the state treasury. However,
article 6252-6b. ,the Texas statute establishing the Surplus Property
An Equal OpportunityI Agency, provides d,nsubsections 4(L) and 4(m):
Affirmative Action Employer
(1) The agency may assess a service and
handling; charge or fee for the acquisition,
warehousing, distribution, or transfer by the
agency ,rud, in the case of real property, such
charges and fees shall be limited to the
masonable administrative costs of the agency
incurret. in effecting transfer. Receipts from
such charges or fees are authorized to be
p. 2192
,
Mr. ElarvinJ. Titman - Page 2 (JM-479)
.
available as needc,d for the operation of the
agency.
(m) The charges and fees shall be deposited in
a Service Charge Trust Fund. Such fund shall not
be a part of the Strce Treasury or State's assets.
Excess moneys in tte Fund above normal operation
expenses and appropriate reserve may be invested
in State or municiIa1 bonds or in such financial
institutions as ha1.u:been approved by the State
Treasurer. The interest or earnings accruing
thereby shall likewlee be an asset of the Service
Charge Trust Fund and shall not be a part of the
State Treasury or State's assets. If the Fund is
used at any tilne for purposes other than
authorized in this 4ct, by the State or any other
agency or inatmxt!ntality thereof, such money
shall accme intemst as if it were invested as
provided above. (Enphasis added).
The State Funds Reform Act, article 4393-1, section 4.004(a),
provides, generally, that
fees, fines, penalties, taxes, charges, gifts,
grants, donations, and other funds collected or
received by a state agency under law shall be
deposited in the tt'easury,credited to a special
fund or funds, and subject to appropriation only
for the purposes Ilor which they are otherwise
authorized to be expended.
"State agency" is defined to :.nclude
a department, commission, board, office, institu-
tion, or other agency that is in the executive
branch of state government, [that has authority]
not limited to a geographical portion of the
state, and that was created by the constitution or
a statute of the state. . . .
Id. 14.002. The Texas Surplus Property Agency fits that description.
See also Attorney General Opinion JM-445 (1986).
You suggest that the State Punds Reform Act does not apply to
your agency, first, because rules of statutory construction specify
that specific provisions control general ones and that repeals by
implication are not favored; second, because "validating" acts are to
be liberally construed; and, third, because the funds are held in
tmst for "participating doneeel."
p. 2193
Mr. Marvin J. Titzman - Page 3 (JM-479)
Rules of statutory construction are now incorporated in chapter
311, subchapter C, of the Gov,e:cment Code (a non-substantive revision
of the law) enacted in 1985. See Acts 1985, 69th Leg., chs. 479, 480,
at 3202, 3363. Section 311.02``rovides:
(a) If a general provision conflicts with a
special or local provision, the provisions shall
be construed, if possible, so that effect is given
to both.
(b) If the con:flict between the general
provision and the special or local provision is
irreconcilable, the special or local provision
prevails as an exception to the general provision,
unless the general provision is the later enact-
ment and the manife;e intent is that the general
provision prevail. (Emphasis added).
In our opinion, the State Funds Reform Act manifests an intent that
its general provisions prevail over any conflicting provisions of
previously enacted specific provisions found elsewhere. -See McInnis
v. State, 603 S.W.2d 179, 183 (Tex. 1980).
/h In language carried into the Treasury Act from the original State
Funds Reform Act enactment (article 4393c, V.T.C.S., repealed),
section 4.003(a) of the Treasury Act declares, "this chapter [the
State Funds Reform Act] applic!sto a state agency only to the extent
that it is not otherwise requkred to deposit funds in the treasury."
We believe this passage evidences a legislative intent to reach all
funds in the hands of state al;enciesother than those the State Funds
Reform Act itself excuses fr.om compliance, regardless of contrary
provisions that might be found in the enabling acts of the agencies.
To the extent that it conflicl:swith the State Funds Reform Act, the
Texas Surplus Property Statute has been repealed. Cf. Attorney
General Opinion H-82 (1973) (anandatory and original actsr
In response to the "validating act" argument, if it be granted
that the enactment of article 6252-6b. V.T.C.S., was an act
"validating" previous legislative authorizations in the form of
concurrent resolutions, see se-don 5 of article 6252-6b. and if it be
granted that "validating acts should be liberally construed, see
Perkins v. State, 367 S.W.2d 140, 144-45 (Tex. 1963), it does not
follow that acts "validated" :annot be repealed by later enactments,
either expressly or by implication. The legislature may exorcise all
legislative power not denied or prohibited to it by the constitution.
Perkins v. State, supra.
The State Funds Reform Act was abbreviated in some respects when
it was transferred to the Trea!:uryAct. For example, the original act
declared that five specific c,ircumstances excused agencies from its
p. 2194
Mr. Marvin J. Titzman - Page 4 (m-479)
requirements although section 4.003(b) of the Treasury Act reflects
only four of them. However: section 2 of the bill enacting the
Treesury ACE, after expressly repealing the original State Funds
Reform hct, article 4393c, V.T.C.S., states, "any amendment, revision,
or reenactment of any of these statutes by the Sixty-ninth Legislature
is preserved and given effect as a part of this bill." Acts 1985,
69th Leg., ch. 240, at 2078, 2105.
The provision is significant because article 4393c was revised
and amended by the Sixty-ninl:hLegislature and a sixth exclusionary
circumstance was added. See Acts 1985, 69th Leg., ch. 479, 693, at
3202, 3328; Acts 1985, 69thLeg., ch. 485, P8, at 4102, 4110. As a
consequence, all six State Funds Reform Act exclusions are to be given
effect "as a part of" the Treasury Act. They make the the State Funds
Reform Act inapplicable to:
(1) funds pledged to the payment of bonds,
notes, or other debts if the funds are not
otherwise required to be deposited in the state
treasury;
(2) funds held in trust or escrow for the
benefit of any perscn or entity other than a state
agency;
(3) funds set r.part out of earnings derived
from investmznt 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 Ilibraryand Archives Commission
for the establishment and maintenance of regional
historical resource depositories and libraries in
accordance wiLh Sect:lon2A. Chapter 503, Acts of
the 62nd Legislatwe, Regular Session, 1971, as
amended (Article 5442b. Vernon's Texas Civil
Statutes); or
(5) the deposit of funds for state agencies
subject to review .under the Texas Sunset Act
(Article 5429k. Vernon's Texas Civil Statutes) for
1981, which shall tme.determined by each agency's
enabling statute; or
(6) funds undr:r the management of the
secretary-treasurer of the Anatomical Board of the
State of Texas, 8s provided by Article 4589,
Revised Statutes.
p. 2195
Mr. Marvin J. Titzman - Page 5 (23-479)
You submit that the funds collected by the Texas Surplus Property
Awncy , and earnings thereon, are funds held in trust for the benefit
of persons other than a state agency within the meaning of the second
and third exceptions above. There is little in either the Texas
statute or the federal act to support such an argument.
Unlike property donated by the federal government for distribu-
tion, the funds collected as service charges and handling fees by the
Texas Surplus Property Agency are to be used "for the operation of the
agency,'Inot for distribution to recipients. V.T.C.S. 6252-6b. 54Q).
The same is true of earnings realized from surplus fees and charges.
Id. 54(m). In our opinion, the Service Charge Trust Fund established
Fsubsection 4(m) is a trust for the benefit of a state agency, and
not one for the benefit of other persons.
Inasmuch as we think t,one of the State Funds Reform Act
exceptions apply, we advise that the funds of the Texas Surplus
Property Agency collected as c'harges,fees, interest and rerurns from
investments are subject to the State Funds Reform Act.
jiU MM A RP
The funds of the 'TexasSurplus Property Agency
collected as charges, fees, interest and returns
form investments ax'e subject to the State Funds
Reform Act.
-JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Gene:ral
MARY KELLER
Executive Assistant Attorney I:c!neral
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
P Assistant Attorney General
p. 2196