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2”


                    THE        AYTORNEY                     GENERAL
                                     OFTEXAS
                                AIlSTIN.    TEXAS          78711



                                           October    25,    1973


       The Honorable     Ralph D. Spencer, AIA                      Opinion    No.   H-   138
       Executive   Director
       Texas Board of Architectural,   Examiners                    Re:      The necessity   of legis-
       2 02 Richmond Building                                                lative appropriation    of
       1411 West Avenue                                                      Architects  Registiatioxi
       Austin,   Texas 78701                                                 Fund 109

       Dear   Mr.   Spencer:

              You have asked our opinion on several questions            involving the recently
       passed amendments       to the Architects   Registration    law. (Laws 1973, 63rd
       Leg.,   ch. 361, p. 801).     The primary questlon is whether the Texas Board
       of Arc~hitectural    Examiners   (hereinafter   TBAE or the Board) has full
       responsibility    and authority for administering      Architects    Registration .Fund
       No. 109 without regard to legislative      appropriation.      Most of your other
       questions are premised       on an affirmative   answer to the first inquiry.

              Prior to its amendment,       Article       249a.    $ 4(a),    Vernon’s    Texas   Civil
       Statutes,  stated:

                              “All fees collected which are provided to be
                     charged by virtue of this Act shall be deposited in
                     the State Treasury     to the credit of a special fund to
                     be known as ‘Architects      Registration    Fund, ’ and all
                     expendituies    from this fund shall be on order of the
                     Texas Board of Architectural        Examiners    on warrants
                     issued by the State Comptroller       for the purposes and
                     in the amounts fixed by the Legislature        of Texas. All
                     disbursements     from such fund shall be made only on
                     the written approval or order of the chairman or act-
                     ing chairman,     and the secretary-treasurer      of such
                     Board,   and such disbursements        shall not in any way
                     be a charge upon the General Revenue Fund of this
                     State. ” (emphasis    added)




                                              p.    657
                                                                                      .
                                                                                      ‘.:
The Honorable    Ralph D.    Spencer,    page 2    (H-138)




      The same    section,   as amended      by the 63rd Legislature,   now states:

                     “All fees collected or money derived under
            the provisions    of this Act shall be received and
            accounted for by the secretary-treasurer.         All of
            these funds which are received shall be paid weekly
            to the State Treasurer,      who shall keep this money
            in a separate fund to be known as the Architects
            Registration    Fund.    This fund shall be paid out only
            by warrants of the State Comptroller,        upon itemized
            vouchers,    approved by the chairman or acting chair-
            man and attested by the secretary-treasurer         of the
            Board.     Disbursements     shall not in any way  be  a
             charge upon the General Revenue Fund of this State. ”
            (emphasis    added)

       In determining whether the Legislature      surrendered    appropriation
control over the Architects    Registration   Fund 109, the .two important
changes in the law are the omission      of the requirement   that warrants be
“for the purposes and in the amounts fixed by the Legislature        of Texas”
and the substitution of “to the State Treasurer”      for “in the State Treasury”
in providing for the disposition   of fees collected.

       The Texas Constitution   specifically   restricts then expenditure of
treasury   funds to those appropriated   by the Legislature.     Article 8, § 6,
provides,    “No money shall be drawn from the Treasury.but         in pursuance
of specific appropriations   made by law; nor shall any appropriation       be
made-for    a longer term than two years.    . . .”

       The Texas Supreme Court has made it clear that there are instances
where funds held by the Treasurer       are not treasury funds and, therefore,
need not be appropriated   by the.Legislature.      The cases which have come
before the Court involved the escheat laws [ Manion v. Lockhart,        114 S. W.
2d 216 (Tex .1938)] and the unemployment       compens
American   Surety Co. of New York, 151 S. W. 2d 570 (Tex. 19411.           Both in-
volved money which was held by the treasurer         for possible (Manion,   supra)
or ultimate (Friedman,   s.       )distribution to an identifiable group of people.




                                        p.   658
The Honorable    Ralph D. Spencer,      page 3    (H-138)




See Attorney General     Opinion   WW-565     (1959).   The Court   found the Treasurer
to be a trustee.

       Architects   Registration   Fund 109, on the other hand, is used for the
general administrative      expenses of a state agency.    It has little,  if any,
resemblance     to a trust and, notwithstanding   the omission   of the language con-
cerning legislative~appropriation     and the substitution of the word “Treasurer”
for the word “Treasury,      ” we do not believe the Legislature     intended to estab-
lish Fund 109 as a trust fund.

        There are other indications of a legislative        intent to requixe continued
legislative  appropriation   supervision    over TBAE.        The amendments     to the
Architects   Registration   Law finally passed the Legislature         on May 19, 1973.
The General Appropriations        Act (House Bill 139, 63rd Leg. ) was passed five
days later and contained.appropriations        for TBAE from Architects        Registra-
tion Fund No. 109. ~~   A specific legislature     is deemed to be motivated by the
same mind and policy in all it does, and every effort should be made to con-
 strue acts of the same legislature     so that they are harmonious        with each other.
Barnes v. State, 170 S. W. 548 (Tex. Crim. 1914)., We do not believe that the
63rd Legislature    abolished the necessity      for appropriation    to the TBAE by
general law only to enact an appropriation          for the Board less than a week later.

       Another indication of legislative    intent can.be found in the House’s tape
recordings   of the committee    hearings on H. B. No. 1204, the amending Act.
Of course,   the views of a legislative   committee    are not controlling,   but they
are entitled to consideration.     National Carloading-Gorporation       v. Phoenix-
El Paso Express,     178 S. W. 2d 133 (Tex. Civ. App. , El Paso, 1943) aff’d 176
S.W.   2d 564, cert. denied 322 U.S.      747 (1944).   During those hearings it was
specifically  represented   to the committee    that then amendment would not per-
mit the Board to bypass the appropriation       procedures.    It was stated that the
Board did not want any change and would continue to go through the normal
appropriation process.

       Given the dissimilarity    of Architects  Registration    Fund 109 to the funds
involved in Manion, supra. , and Friedman,        supra.,   the inclusion of TBAE
in the General Appropriations      Bill and the testimony    given at the committee
hearings,    it is our opinion that TBAE still is subject to appropriation     by the
Legislature.      Because we have reached our decision on the basis of legislative




                                      p.    659
The Honorable         Ralph D.   Spencer,        page 4 (H-138)




intent, we do not reach the question whether,    constitutionally, the Legis-
lature could provide for the expenditure of money from Architects      Regis-
tration Fund 109 without legislative appropriation.

       Other of your questions, which are not necessarily                     premised     on a
contrary answer to the appropriations  question,are:

                1.       In contracting for services      or supplies, office
                         space,   equipment,   etc.,    does T.B.A.E.   have
                         authority to act independently or must it con-
                         tinue to requisition  the Board of Control who,
                         in turn, will advertise     for competitive bids and
                         contract for T. B. A. E. ?

                2.        Does 5 3(d) of H. B. 1204 empower T. B. A. E, .to
                          incur legal and court costs necessary in enforce-
                          ment actions?

                3.        Will the fact that ten percent of the Architects
                          Registration   Fund 109 is no longer contributed
                          to the General Revenue Fund cause T. B. A. E.
                          to be subject to charges for services   from ~the
                          State Treasurer,    the State Auditor and other
                          state officials and agencies?

      Article        664-3,   $ 5, Vernon’s       Texas   Civil   Statutes,   states   in part:

                       “The Board [of Control]        shall purchase all
                suppli~es, materials,    services,     and equipment used
                by each Department of the State Government             . . .
                such supplies to include furniture and fixtures,tech-
                nical instruments    and books,     and all other things
                required by the different departments          or institutions,
                including perishable    goods.     The Board is given legal
                authority to delegate purchasing        functions to agencies
                of the State. . . . ”




                                            p.    660
The Honorable   Ralph Di Spancer,    page      5   (H-138)




      In accordance  with this section,  TBAE        must continue to requisition
the Board of Control for services,    supplies,      equipment,  etc.

       Your question concerning legal fees is answered by Art.          249a,   $$
3(d~) and 5(c), as amended by H. B. 1204 (1973). which provide:

                    3(d) “The Board shall cause the prosecution    of
             all persons violating any of the provisions  of this Act,
             and may,incur   the expense reasonably   necessary   in
             that behalf. ”

                    5(c) “The Texas Board of Architectural     Examiners
             is hereby empowered and authorized to enforce such rules
             and regulations,   the provisions of this Act, and the statutes
             of this state pertaining to the practice of architecture   . . . .
             The Board may be represented      by the Attorney General,
             the District Attorney,   or the County Attormy,    and by other
             counsel when necessary.     ”

We believe these provisions give TBAE authority to incur legal and court costs
in enforcement   actions.   Any funds used for these purposes would come from
item 9 of the current appropriation    for the Board which provides  money for
“expenses   for enforcement   purposes. ” House Bill No. 139, Article   III, p. 21
Of course,   money may not be spent for outside legal counsel unless the require-
ments of Article V $40 and 41 of the General Appropriations      Act are met.

      The failure of TBAE to continue to contribute to the general revenue fund
will have no effect on charges to the Board for services    performed  by other
state agencies.   As in the past, some services   will be provided without charge
and some will require interagency   agreements,    but the charges or lack of reim-
bursement   do not depend on the Board’s  contribution or failure to contribute to
general revenue.

                                    SUMMARY

                   The Texas Board of Architectural  Examiners
             may spend funds only as authorized by legislative
             appropriation, notwithstanding 1973 amendments    to




                                    p.   661
The Honorable   Ralph D.    Spencer,        page 6   (H-138)




           Article 249(a), V. T. C. S. , by House Bill 1204
           (Laws 1973, 63rd Leg.,    ch. 361, p. 801).

                                              Very   truly   yours,




                                              JOHN L. HILL
                                   c/         Attorney General        oi Texas




DAVID M. KENDALL,          Chairman
Opinion Committee




                                       p.    662
