                      February17. 1976


The Honorable Clayton T. Garrison   Opinion No. H-781
Executive Director
Texas Parks & Wildlife Department   Re: Use of certain
John H. Reagan Building             license fees by the
Austin, Texas 78701                 Parks and Wildlife
                                    Department for its
                                    Seafood Marketing
                                    Program.

Dear Mr. Garrison:

     YOU have asked our opinion concerning article 978f-3c,
Vernon's Texas Penal Auxiliary Laws, which empowered and
directed the Texas Parks and Wildlife Commission to develop
a seafood marketing program. This article was repealed by
the passage of the Texas Parks and Wildlife Code, effective
September 1, 1975, but a similar provision is found in sec-
tion 12.009 of the new Code, which provides:

             Sec. 12.009.   Seafood Consumption Program

              (a) The department shall develop and
          administer a market promotion program to
          foster and expand the sale and consumption
          of seafood by the public. The department
          may use its own personnel or contract for
          personnel and use only state,funds or state
          funds in conjunction with federal or private
          funds.
              (b) Forty percent of the funds collected
          from commercial fisherman's license fees, 20
          percent of wholesale fish dealers' license
          fees and wholesale truck dealers' fish license
          fees, and 50 percent of shrimp house operators'
          license fees shall be used by the department
          in carrying out the program required by this
          section.




                              p. 3296
The Honorable Clayton T. Garrison-   page 2 (H-781)



     you question the setting aside of the various license
monies since this percentage allocation may have conflicted
with article 978f-3a, section 6, Vernon's Texas Penal Auxil-
iary Laws, which read in part:

          [Nlo funds accruing to the State of Texas
          from hunting license fees, fishing
          license fees, commercial fishing boat
          license fees, oyster license fees, net
          license fees, trawl license fees, seine
          license fees, . . . shall be diverted
          for any other purposes than for making
          necessary studies and management of fish
          and game resources of this State and for
          the expansion and development of additional
          opportunities of hunting and fishing in
          State-owned land and waters for the
          benefit of the public wherever practicable
          and to embrace wherever feasible the
          principle of multiple use of our land
          and waters for better hunting and fishing
          opportunities.

Section 6 has now been replaced by sections 13.313, 83.001
and 83.003 of the Texas Parks and Wildlife Code, but the
specific portion of section 6 quoted above does not appear
in the new Code.

     In connection with these statutes, you ask:

          1. Is the Parks and Wildlife Department
          required to allocate the percentages of
          the license fees specified by Article
          978f-3c, Vernon's Texas Penal Auxiliary
          Laws [section 12.009, Texas Parks and
          Wildlife Code], to the Seafood Marketing
          Program, subject to specific legislative
          appropriation; Does the language in
          Article 978f-3a, Vernon's Texas Penal
          Auxiliary LaWS, leave entirely to the
          discretion of the Commission and/or
          Department, whether or not such program
          will be carried out and the types of
          seafood products to be affected?




                         p. 3297
The Honorable Clayton T. Garrison - page 3 (H-781)



         2. If the Department must reserve the
         percentages of fees for a seafood mar-
         keting program as indicated by article
         978f-3c [section '12.009, Texas Parks
         and Wildlife Code], should such license
         receipts so allocated, in excess of the
         amount expended by the Department for the
         marketing program, be reserved in the
         fund balance, subject to future legisla-
         tive appropriation for the Seafood
         Marketing Program?

         3. If the Legislature fails to appro-
         priate funds provided for by article
         978f-3c, Vernon's Texas Penal Auxiliary
         Laws [section 12.009, Texas Parks and
         Wildlife Code], are they available to be
         used for other purposes authorized by law
         and for which appropriations are made?

     As we interpret your questions, you have asked for our
opinion concerning fees collected both prior and subsequent
to the passage of the new Parks and Wildlife Code. In regard
to the period prior to the new Code, we note that article
978f-3a was enacted in 1963 (see Acts 1963, 58th Leg., ch.
58, p. 104) and the questionaanguage-of     section 6 thereof
had not been amended at the time of the passage of article
978f-3c, the Seafood Marketing Program Act, in 1967. See
Acts 1967, 60th Leg., ch. 173, 5 5, p. 363.

     If the two statutory provisions are considered inconsis-
tent or in conflict, then the latter will control. Code
Construction Act, V.T.C.S. art. 542913-2, 5 3.05. Accordingly,
the provision of the seafood marketing enactment (article
978f-3c) prevailed over article 978f-3a and the Parks and
Wildlife Department was required to comply with the require-
ment to set aside percentages of certain licensing fees for
the marketing program.




                         p. 3298
                                                                ’       ’   .

                                                                    .       -




The Honorable Clayton T. Garrison - page 4 (H-781)



     Moreover, article 978f-3a (together with section 6) was
a general statute setting up the Parks and Wildlife Depart-
ment and generally providing for its structure, its powers
and its duties. On the contrary, article 978-3c was a
specific statute dealing with the particular subject of a
seafood marketing development program and so prevailed over
the general statute setting up the Department Code. Construc-
tion Act, V.T.C.S. art. 5429b-2, S 3.06. This statutory
construction rule, a specific provision prevailing over a
general enactment, lends additional weight to our opinion
that your Department was required to comply with the pro-
visions of 978f-3c and develop and support the seafood
marketing program by the proper allocation and use of the
license fees collected.

     Accordingly, both before and after the passage of the
Code, you had no discretion insofar as the setting aside of
the appropriate amount of license fees to institute and
implement a seafood marketing program as required by statute.
You do have discretion, of course, in designing and struc-
turing an appropriate program so long as the legislative
dictate-- that the promotion shall "further and expand the
consumption of seafood by the public"--is satisfied.

     You further observe that more monies have been collected
from the named fees of section 12.009 than the Legislature
has appropriated.  You ask if these surplus monies, over and
above the appropriated funds, can be used for purposes other
than the seafood marketing program. Unless the Legislature
should amend section 12.009 of the Parks and Wildlife Code
to permit a different usage of the pertinent fees, the
statutorily allocated monies should be retained to be used
as the Legislature has directed, if and when the Legislature
sees fit to appropriate such segregated fees. Attorney
General Opinions H-528 (1975) and M-1084 (1972). Such fees
cannot be used for other departmental uses.




                           p. 3299
The Honorable Clayton T. Garrison        -    page 5 (H-781)



                      SUMMARY

          The Parks and Wildlife Department is
          required to set aside forty percent of
          the funds collected from Commercial
          Fisherman's License fees, twenty percent
          of the funds collected from Wholesale
          Fish Dealers' License fees and fifty
          percent of the funds collected from
          Shrimp House Operators' License fees
          for use in a program to foster and
          expand the sale and consumption of
          seafoods by the public.

                                 -Very       truly yours,




                                  Attorney General of Texas




Opinion Committee
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