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"