       .      .




             .THE    ATTBECNEY             GENERAL.
                          OF-XAS
                      AUSTIN.     TEXAR   787ll

                                May 12, 1971




Honorable George W. McNiel                Opinion No. M-858
State Auditor
Sam Houston State Office Bldg.            Re:     Whether trust funds
Austin, Texas 78711                               collected under Article
                                                  5438d., V.C.S.? may be
                                                  expended for maintenance
                                                  of all State property
                                                  within the purview of
                                                  said statute, or must
                                                  such funds be spent only
                                                  on that part of such
                                                  property which earned
Dear Sir:                                         same?
      Your request for an official opinion of this office is
quoted as follows:
           "The Treasurer General of the Daughters of the Republic
           of Texas, Custodians of the Alamo, the French Legation,
           and the DRT Museum joins me in requesting your opinion
           as to whether the provisions of Article 5438d, of
           Vernon's Annotated Civil Statutes, and the trust
           character of the funds authorized to be collected
           thereunder require a strict location by location
           earmarking of the admission receipts and concession
           profits which are dedicated to the maintenance and
           repair of the State property and furnishings under
           the custody and control of the Daughters of the
           Republic of Texas, or whether the collective revenue
           earned from these properties may be used for their
           collective support without reference to any particular
           earning property.
           We are advised that these monies are accounted for
           separately at the present time; that certain of the
           properties are not self sufficient; that their
           maintenance and operations are being supplemented
           from unrelated dues income of the organization; and


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Honorable George W. McNiel, Page 2                   (M-858)


         that they would benefit greatly if sufficient authority
         now exists for the transfer of earnings between the
         properties."
      Article 5438d.,   Vernon's Civil Statutes, reads as follows:
         "The Daughters of the Confederacy, Texas Division,
         and the Daughters of the Republic of Texas, are
         hereby authorized to charge admission fees to the
         general public to visit State property under their
         custody and control except the Alamo, and such organiza-
         tions are authorized to maintain and operate in any
         manner they deem appropriate concessions in State
         property under their custody and control.
         received from the admission charged and ally+F   ro 1
         obtained from the operation of concessions shall be
         held in trust by such organizations to be expended
         for the purpose of maintenance and repair of State
         property and furnishings under the custody and control
         of such organizations. The admission fee to be charged
         the public shall be in the amount determined by such
         organizations as in their discretion they deem best
         for the interest of the State and the public. The
         operation of concessions shall be under the control
         of such organizations and they are authorized to
         operate such concessions themselves or to enter into
         necessary contracts with any other person, firm or
         corporation for theoperation of concessions in any
         manner they deem necessary for the best interest     of
         the State and public." (Emphasis added)
      The above statute expressly creates a special trust fund
of the money received as admission fees from the general public
visiting such State property, and of all profits obtained from
the operation of such concessions, to be expended by such
authorized organizations for maintenance and repair of the State
property in the custody and control of such organizations. No
constitutional "special fund" is here involved. Gulf Insurance
Co. v. James 143 Tex. 424, 185 S.W.2d 966 (1945). The trust
fund is entirely a creature of the statute and the only
limitation placed upon its use by such organizations is that it
be expended for the maintenance and repair of the State's own
property that such organizations hold in trust for the State.
Thus, the fund is expendable only for a public purpose. The
general right of the'State to apply,its property'to such purpose


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Honorable George W. McNiel, Page 3,             (M-858)


was declared bs the Suoreme Court of Texas in 1913 in the
case of Conley"v. Daughters of Republic 106 Tex. 80, 156
S.W. 197 (1913). Later In the same year the Austin Court
of Civil Appeals announced the same nrinciole of law in
Conley v. United Daughters of Confederacy L 164 S.W. 24,
7Tex.Civ.App. 1913. error ref.) and again'ln 1941 In the
case of King v. Sheppard, 157 S.W.2d G82 (Tex.Civ.kpp. 1941,
error ref. w.0.m.).
      The statute does not apportion any part of such fund
to any particular property involved - it unequivocally appropriates
&   such fees and income to all such propertys' maintenance
purposes, regardless of the proportion of such fees and income
attri,butableto any particular site by reason of visitors
thereto or concessions operated therein. All or any part of
this fund may ,be used for the maintenance and repair of all or
any of such properties, as deemed necessary for the best
interest of the State and public by the organizationsso
authorized by statute.

                        SUMMARY
              The money collected as admission fees and con-
         cession profits by reason of visitors to all or any
         part of certain State properties, as authorized by
         Article 5438d., V.C.S., may be expended for the main-
         tenance and repair of all, or any of such properties
         regardless of the proportion of such earnings that
         may be attributable to any particular property, as
         the organizations having same in their custody and
         control deem necessary for the b t interest of the
         State and public.
                                      /7




                                            General of Texas
Prepared by R. L. Lattimore
Assistant Attorney General




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Honorable George W. McNiel, Page 4   (M-858)


APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Marietta Payne
Sally Phillips
Jim Swearingen
Mike Stork
MEADE F:GRIFFIN
Staff Legal'Asslstant
ALFRED WALKER
Executive ~Assistant
NOLA WHITE
First Assistant




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