                       August 31, 1965



Dr. James E. Peavy                 Opinion No. C-493
Commissioner of Health
Texas State Department of Health   Re:   Whether the Sanitarians
Austin, Texas                            Registration and License
                                         Fund is a special fund
                                         under the direction of
                                         the State Treasurer and
Dear Dr. Peavy:                          related question.

          Your letter requesting an opinion of this office reads
in part as follows:

          "The Sanitarians Registration Act (Senates
     Bill 333) as passed by the 59th Legislature au-
     thorizes the State Board of Health to set up
     certain proceedings for the registration of
     sanitarians; the charging of a Ten Dollar
     ($10.00) fee and providing authorization for
     the setting up of standards and qualifications
     for sanitarians to be registered under the Act.

          "The Act further authorizes fees and ex-
     penses in Section 8 . . .
          $8
           . . .

          "In reviewing this Act with the Comptroller's
     Office in order to establish a special Sanitarians
     Registration and License Fund, the following ques-
     tions were raised:

          "1. Is the Sanitarians Registration and
     License Fund a special fund under the direction
     of the State Treasurer? The first sentence of
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Dr. James E. Peavy, page 2 (C-493 )



     8(b) creates a special fund; however, the last
     sentence infers that the fund may not be in the
     State Treasury (for example, it may be a trust
     fund).

          "2. If this is a special fund under the
     direction of the State Treasurer, are the
     receipts appropriated to the Texas State Depart-
     ment of Health?

          "3. If this is a special fund under the
     direction of the State Treasurer, then what is
     the meaning of the last sentence in Section 8
     lb)? The surplus would already be in the State
     Treasury.
          ,I
           . . .

          "We would appreciate your assistance in
     answering the questions herein raised and your
     interpretation and direction as to our procedure
     in setting up the special fund in the State
     Treasury."

          Sec. 8(b) of S. B. No. 333, Acts 59th Leg., 1965, ch.
300, p. 606, provides:

          "There is created a swcial Sanitarians
     Reqistration and License Fund which will consist
     of any and all fees charged or collected under
     any of the provisions of this Act. The Fund
     shall be under the suoervision of the Board
     which shall file annually a statement of in-
     come and expenses with the Secretary of State.
     All exoenses necessarv to the administration
     and enforcement of this Act. as well as any
     other exnenses of whatsoever character that may
     arise becuase of the terms and provisions hereof,
     shall be made from the Fund, including the reim-
     bursements made to Board members, as provided
     for by the provisions of this Act. Any surplus
     remaininq in the Sanitarians Registration and
     License Fund, at the end of each fiscal year,
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Dr. James E. Peavy, page 3 (C-493 )



     not necessary to defray the expenses mentioned
     and provided under the terms of this Act, shall
     be paid into the State Treasury." (Emphasis
     added).

          The Legislature has clearly set apart those fees
collected by authority of Senate Bill 333 into a special fund
entitled "Sanitarians Registration and License Fund." A special
purpose has been designated for funds collected under Senate
Bill 333. The caption of Senate Bill 333 reads in part as
follows:
          II
               .providing for expenditure and other
               .   .


     disposition of funds collected under provisions
     of the Act and fixing purposes for which such
     funds may be used: . . .II

           Section 8(b) as quoted above, clearly authorizes ex-
penditures of funds collected under the Act for all expenses nec-
essary to the administration and enforcement of the Act, as well
as other expenses which may arise because of the terms and pro-
visions of the Act. Fees collected under the Act are used ex-
clusively for the occupation required to pay them and therefore
are collected in a valid special fund. James v. Joseph, 179
S.W.2d 411 (Tex.Civ.App. 1944) reversed on other grounds, 143
Tex. 440, 185 S.W.2d 974. 52 Tex.Jur.Zd. 747, State of Texas,
§ 36.   In Section 8(b) the words "into the State Treasury" mean
that funds are to be transferred into the General Fund. Manion
v. Lockhart, 131 Tex. 175, 114 S.W.2d 216 (1938). The State
has the right, if the Legislature deems it necessary, to pass
suitable laws authorizing the balance of Special Funds created
by statute to be used for general purposes. Gulf Ins. Co. v.
James, 143 Tex. 424, 185 S.W.2d 966 (1945).

          In absence of any constitutional or statutory require-
ment that Special Funds or state funds must be deposited in the
hands of the State Treasurer, a statute authorizing collection
of license fees in a Special Fund will not be construed so as to
require deposit of such fees into the custody of the State
Treasurer. Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595
(1949); State Licensing Board of Contractors v. State Civil
Service Commission, 110 So.2d 847 (La. Ct. of App. 1959, aff. on
ape. 1. Fees collected under the Act may be paid to the State
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Dr. James E. Peavy, page 4 (G-493 )



Treasurer as custodian of the Sanitarians Registration and
License Fund administered as a special fund. The State Board
of Health is authorized by the Act to expend funds collected
under the Act for purposes described by the Act. A full re-
port of expenditures is to be filed with the Secretary of State
at the end of each fiscal year.  All monies are to be de-
posited in the General Revenue Fund at the end of each fiscal
year.

          It is our opinion that:

           (1) The Sanitarians Registration and License Fund is
a special fund which may be deposited in the custody of the State
Treasurer.

          (2) Monies deposited in the Sanitarians Registration
and License Fund are to be expended under supervision of the
State Board of Health for the purposes enumerated by Senate Bill
333, 59th Legislature, 1965.

          (3) Any monies remaining in the Sanitarians Regis-
tration and License Fund at the end of each fiscal year are to
be transferred to the General Fund of the State Treasury.

                         SUMMARY

          (1) The Sanitarians Registration and License
     Fund is a special fund which may be deposited in
     the custody of the State Treasurer.

          (2) Monies deposited in the Sanitarians
     Registration and License Fund are to be expended
     under the supervision of the State Board of Health
     for the purposes enumerated by Senate Bill 333,
     59th Leg.

          ;(3) Any monies remaining in the Sani-
     tarians Registration and License Fund at the
     end of each fiscal year are to be transferred to
     the General Fund of the State Treasury.
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r      -




    Dr. James E. PeaVy. Page 5 (c-493 )



                                 Very truly yours.

                                 WAGGONER CARR
                                 Attorney General


                                  Bv:
                                         Gordon Houser
                                         Assistant

    GH:ra

    APPROVED:
    OPINION CCMMITTEE

    w. 0. Shultz, Chairman
    Dean Arrington
    John Banks
    Jim Briscoe
    Larry Craddock

    APPROVED FOR THE ATTORNEY GENERAL
    BY: T. B. Wright




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