                                                February   12, 1975


    The Honorable    Cue D. Boykin                                Opinion     No.   H-   524
    Chairman
    Texas Industrial  Accident Board                              Re: Validity    of an appropria-
    P.O.  Box 12757, Capitol Station                              tion to the Attorney    General’s
    Austin,         Texas   78711                                 Office from Workmen’s        Com-
                                                                  pensation    Fund NO. 94.

    Dear      Mr.     Boykin:

                You have asked our opinion on the legality   of the Legislature’s
    transfer      of a portion  of the Workmen’s Compensation     Fund No. 94 to the
    A,ttorney     General’s    Operating Fund.

                The Workmen’s               Compensation    Fund is created     by article     8306,
    section     28, V. T. C. S.,            which provides:
I
                                 Sec. 28. The:re is hereby established        as a special
                            fund, separate    and apart from all public monies or
                            funds of this state, a Workmen:s      Compensation        Fund
                            which shall be used by the Board for the purpose of
                            paying costs of the administration      of the law, in
                            addition to amounts appropriated      by the Legislature
                            of the State of Texas.     The State Treasurer       shall be
                            the treasurer    and custodian of the fund.    He shall
                            adminjst-,r   such fund in accordance     wit,h the direc-
                            tions of the Board,    and the Comptroiler      shall issue
                            war:rants upon its in accordance    with the directions      of
                            the Board.
                                                                                               ,
                                .   .   .   .


                            Failure  to make any report  required  by this Section
                            shall be punishable by fine not the exceed One Thousand




     .

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The Honorable        Cue D.   Boykin     page   2    (H-524)




                     ($1000) Dollars    and the failure   to pay any tax
                     within thirty (30) days after same is due under
                     this Section shall be ,punishable by a penalty of
                     ten percent    (10%) of the amount,    and shall be
                     recovered    by the Attorney    General   in a suit
                     brought by him in the name of the State of Texas
                     and such penalties     when collected    shall be deposited’.
                     in the State Treasury     ‘for the use and benefit of the
                     Workmen’s      Compensation     Fund.                           ‘.

        Even       though funds may be.earmarked        by statute,   they,may  not be’ ,’
spent absent       a valid appropriation.  Texas      Constitution,   art. 8, $6.

          In the appropriation    to the Attorney    General’s    Office the Legis-
lature has transferred       money from several      different   funds tothe Attorney
General’s     Operati.ng Fund.     For the year ending August 31, 1975, these
transfers    include one of $50,000 from the Workmen’s             Compensation    Fund
Nq. 94.     Acts 1973, 63rd Leg.,      ch.  659,  p.  .1786  at 1920.

         The Attorney   General’s  Operating    Fund was created    in 1959 and has
been funded i.n a similar   fashion since th,at time.’ Acts 1959, 56th Leg. ,.
3rd C. S. ch. 23, p. 442 at 510. The Operating        Fund’s validity   was upheld
in Attorney  General   OpinionWW-573     (1959).

             To be valid this appropriation       from the Workmen’s      Compensation
-Fund to      the Attorney   General’s     Operating  Fund must be authorized      by
 general      law [Texas    Constitution,,   art. 3, $441 and must be consistent
wi.t.1~the     requirements    of general    law [Texas  Constitution,   art. 3, § 35;
A+‘:orney       General 0pi:lion    V-1254 (195111. We believe      both of these tests
xrt me!:       here.

           Se&on     28 of artdcle 8306 provides     that. the fund “shall be used by
the Board for the purpose of paying costs of the administration                of the law. . . “‘.
7” - Lo.‘: ~“0 this language is mandatory      and the Board is requi~red to make
expenditures     from the fund to pay the costs of administering           the workmen’s
compensation       law. In fulfilling his constitutional     and statutory    duties as
the at.torney for state agencies,      the Attorney     General    represents    the Industrial




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The Honorable         Cue D. Boykin       page   3    (H-524)




Accident     Board in court and counsels          with the Board in regard          to its
legal obligations.       The very section which creates             the fund indicates     that
a portion    of the cost        of administering      the law will be incurred         by the
Attorney     General,    si.nre he is required      t.o bring suit to recover        taxes and
penalties    for the benefit of the fund. Additionally,             work is being undertaken
in preparation      for the initiation    of the program        of workmen’s      compensation
for state employees.          This program      is expected      to go into effect prior to
the end of the current: fiscal year and both the At.torney General                   and the
Industrial    Acc~,ident Board will have extensive           administrative      responsibilities
under the law. See         V. T. C. S.,art.    8309g.       In light of these responsibilities
of the Attorney      General’s    Office,   the Legisl~ature       has determined      both in
general    law and in the appropriation         bill that the Attorney       General’s     Office
plays an integral      role in the administration         of the Workmen’s         Compensation
Law.      Therefore,     t,he Legislature!s      transfer     of a portion   of the Workmen’ti
Compensation       Fund to the Attbrney        General’s      Operating    Fund is entirely
consistent     wjth the statutory     mandat~e that the fund “be used by t.he Board
for the purpose of paying c~osts of the administration                 of the law. ”

         Although   there is language i,n section 28 of article         8306 which could
be construed    as li.miting administration      of the fund to the Board,       we believe
the statut.e is more correc~tly i,nterpretcd       as specifying    and mandating      the
purpose for which the funds ran be spent rather than as abrogating                 the
power of the Legislature      to allocate   the fund for speci,fic purposes        within
the cont.emplation    of the statutxy     purpose.     Thins interpretaEon    is consist:ent
with priar praci:ice and c~,onstruci:ion in regard       to similar    funds.   -See Attorney
General  OpinEon WW-604        (1959) which approved   a proposed  transfer   from
the Barber  Examiners      Fnnd (V. T. C. S. I ari,. 7407a, $27) i:o the General
Revenue   Fund t,o reflect   the cost of servic~es furnj,shed to the Barber’s    Board
by   other   siaie   agencies.


                                        SUMMARY
                                       __l__-~__

                         The Legisla!g,re   is au!:hori,zed to appropriate
                     a pori:j,on of the Workmrn!s    Compensation    Fund




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   The Honorable   Cute D. Boykin     page      4   (H-524)




                   to the Attorney General’s        OffiLe    to reflect
                   the costs of administering        the Act.

                                                         Very    truly     yours,




                                                               dHl&                            .’
                                                        Attorney   General          of Texas


-ROVED:




   DAVID   M.   KENDALL,    First   Assistant




   C. ROBERT   HEATH,      Chairman
   Opinion Committee


   lg




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