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                                                R-218



                                EXAS




                            March 26,   1947


    Hon. Tom Martin, Chairman     Opi,nionNo. V-107
    Game and Fish Committee
    House of Representatives      Re:    Consti~tutionelitgof House
    Austin, Texas                        Bill No. 183, 50th Legisla-
                                         ture.
    Dear Mr. Martin:
           As requested in your letter of March 6, we have care-
    fully considered the constitutionalltg of House Bill No. 183.
    We quote your letter in full:
           "It Is hereby requested that an opinion be
        prepared on House Bill No. 183 regarding its con-
        stitutionality for the Game and Fish Committee.
           "In our committee meeting of March 5, 1947,
        members of the committee were quite concerned
        whether or not it would be constitutional to
        transfer moneys now in the State Treasury.
        This money Is now appropriated for various funds
        used by the State Game, Fish, and Oyster Com-
        mission, by means of taxation. The bill sets
        up special funds which will consolidate exist-
        ing money in the State Treasury.
           "An immediate response to this request will
        be appreciated."
           An examination of the bill discloses as its sole pur-
    pose the transfer of moneys now in six separate special funds
    into a single special fund. The six special funds now on de-
    posit in the State Treasury are the Special Game Fund, the
    Special Fish Propagatlon and Protection Fund, the Fish and
    Oyster Fund, the Sand, Shell and Gravel Fund, the Medina Lake
    Fund, and the Lake Worth-Eagle Mountain Lake Fund. The pur-
    pose of House Bill No. 183 is to consolidate the balance in
    all of the above funds. together with all moneys due and owing
    to any and all of said-funds into a single fund to be known
    as the Special Game and Fish Fund.
           In our opinion the only constitutional question raised
    by the bill is the validity of such a transfer under Section 7
    of Article VIII of the Texas Constitution.
Hon. Tom Martin,    page 2,   V-107


         Article VIII, Section 7 of the Texas Constitution pro-
vides:
      "The Legislature shall not have power to
   borrow or in any manner divert from its purpose,
   any special fund that may or ought to, come
   into the Treasury; and shill make it penal for
   any person or persons to borrow, withhold or in
   any manner to divert frcrmits purpose any special
   fund, or any part thereof." (Emphasis added)
       The question for determination is whether or not the
six special funds listed in House Bill No. 183 are special
funds as contemplated by the constitutional provision set out
above.
       In March, 1944, the companion cases of James, State
Treasurer, et al, v. Gulf Insurance Co., et al, 179 S.W.~(2d)
397, and James, State Treasurer, et al, v. Jo,seph,et al, 179
S.W. (2d) 411, were decided by the Austin Court of Civil Ap-
peals. These cases were appeals from judgments declaring Sen-
ate Bill 144 of the 48th Legislature unconstitutional. That
bill providing for placing portions of certain special funds In
the general revenue fund. Three of the funds involved in the
transfer -- the Special Game Fund, Sand Shell and Gravel Fund
and the Fish Propagation and Protection Fund -- are funds which
are now sought to be transferred by House Bill No. 183.
         We find the following language in the Gulf case:
       "Sec . 6 of Article 8 of'the Texas Constitu-
   tion provides that 'no money shall be drawn from
   the Treasury but in pursuance of specific appro-
   priations made by law; nor shall any appropriation
   of money be made for.a longer term than two gears.'
   The mere fact that one Legislature auprouriates or
   directs that taxes levied and collected for the
   next succeeding biennium be used for a special
   purpose, does not deprive a subseauent legislature
   of the right to appropriate and direct the ~exoend-
   iture of any portion of the taxes not needed for the
   special   purpose ." (Emphasis added.)
         The opinion further states:
      "Senate Bill 144 does not viola.te Sec. 7 of
   Art. VIII of the Constitution, providing that the
   Legislature shall not have the power to borrow, or
   in any manner divert from its purpose, any special
   fund that may, or ought to, come into the Treasury.
Hon. Tom Martin,   page 3,   v-107


    This is because the special funds created by
    Arts. 4682b and 4902 are not the kind of special
    fund referred to in the Constitution. No con-
    stitutional special fund is here involved. The
    special funds here involved are creatures of the
    statutes. They arise out of taxes which could
    have been paid into the General Revenue Fund in
    the first instance. They arise under the power
    to levy taxes for the maintenance of governmental
    agencies as well as for general governmental
    purposes. The taxes going into the special funds
    in question are not dedicated or allocated either
    by the Constitution or statutes to any special
    fund established by the Constitution, but are
    taxes which would have come into the General
    Revenue Fund had the statutes tot placed them in
    the special accounts or funds.
       The Supreme Court of Texas reversed the 'udgments of
the Court of Civil Appeals in the above cases, ?See 185 S.W.
(2d) 966 and 185 S.W. (2d) 974.) because the title to the Act
contained nothing to indicate that the body of the Act purpor-
ted to transfer the seventeen special funds referred to in
Section 2 of the Act.
       However, for our purposes the following language of
Chief Justice Alexander in Gulf Ins. Co., et al v. James, State
Treasurer, et al, 185 S.W. (2d) 966, is important:
        "We agree with the holding of the Court of
    Civil Appeals that the Legislature has the right
    to transfer the balance on hand in these special
    funds to the General Revenue Fund. In so doing
    the Legislature does not violate the provision
    of Article VIII, Section 7 of the Constitution.
    Vernon's Ann. St,, which provides that, 'The Leg-
    islature shall not have power to borrow, or in
    any manner divert from its purpose, any special
    fund that may, or ought to, come into the Treasury;
     . D . D In the case of Brazes River Conserva-
    tion and Reclamation District v. McCraw, 126 Tex.
506, 91 S.W. 2d, 665, this court held that the
    above quoted constitutional inhibition applied
    only to special funds created by the Constitution,
    and not to special funds created by statute. The
    special funds here under consideration were
    created by statute, and not by the Constitution.
       Also this language appears in the concluding paragraph
of the opinion:
Hon. Tom Martin,   page 4,   V-107


       "Consequently, the State now has the right,
    if the Legislature deems it wise to pass suitable
    laws authorizing it, to use the balances of these
    special funds for general purposes."
       The six special funds now in the State Treasury were
created by legislative enactment and therefore are not dedicat-
ed or allocated by the Constitution of Texas. They are, there-
fore, not special funds within the meaning of Sec. 7 of Article
VIII of the Texas Constitution.
      We quote from 59 C.3. 232:
       'Where a special fund is created or set aside
   by statute for a particular purpose or use, it
   must be administered and expended in accordance with
   the statute, and may be applied only to the pur-
   pose for which it was created or set aside, and not
   diverted to any other purpose, or transferred from
   such authorized fund to any other fund. The legis-
   lature has power, however. to transfer to another
   fund or appropriate to another purpose any surplus
   which may remain in a special fund after the accom-
   plishment of the purpose for which it was estab-
   lished, and in general, whether or not the our-
   pose for which a special fund was created has been
   accomplished, such fund mav be diverted bv statute
   to another and different ouroose so long as it re-
   mains subiect to legislative control; but the legis-
   lature cannot authorize the diversion of a special
   fund where such diversion would conflfct with 8 pro-
   vision of the constitution controlling such fund,
    D * . . . 0    (Emphasis added.)
       It is the opinion of this department that if, as evi-
denced by the cases cited above, the courts will allow the use
of surplus In special funds to be used for general purposes,
then certainly the courts would uphold a legislative determi-
nation to consolidate several special funds into one special
fund. The argument for this proposition is strengthened when
it is realized that the one special fund shall be used for the
aggregate purposes for which the six funds are now directed
to be used.
       It is, therefore, the opinion of this department that
the transfer of moneys as provided by House Bill 183 is not
violative of the Texas Constitution.
                         SUMMARY
Hon. Tom Martin,   page 5,   v-107


       (1) Article VIII, Section 7, of the Texas
    Constitution which prohibits the Legislature
    from borrowing or in any manner diverting any
    special fund from its purpose refers only to
    special funds established by the Constitution
    and is not applicable to statutory funds.
       (2) The Legislature has the authority to
    consolidate the Special Game Fund, the Special
    Fish Propagation and Protection Fund, the Sand,
    Shell and.Gravel Fund, the Fish and Oyster Fund,
    the Medina Lake Fund, and the Lake Worth-Eagle
    Mountain Lake Fund into a single special fund
    to be known as the Special Game and Fish Fund to
    be used for thenaggregate purposes for which the
    six special funds are now directed to be used.
    Such a transfer of funds as set out in House Bill
    No. 183 is not violative of the Texas Constitution.
                                 Yours very truly
                              ATTORNEY GENERAL OF TEXAS
                                 By s/Clarence Y. Mills
                                      Clarence Y. Mills
                                      Assistant

CYM/mrj/lh/wc

APPROVED: March 26, 1947
s/Price Daniel
ATTORNEY GENERAL