                                   ATTORNEY GENERAL                OF    TEXAS
                                             GREG       ABBOTT

 This opinion has been withdrawn and replaced by Attorney General Opinion GA-0092A.

                                               August 20,2003



Douglas A. Beran, Ph.D.                                  Opinion No. GA-0092
Executive Director
State Board of Barber Examiners                          Re: Use of the Barber School Tuition Protection
5717 Balcones Drive, Suite 217                           Account administered by the State Board of
Austin, TX 78731                                         Barber Examiners   (RQ-0024-GA)

Dear Dr. Beran:

        On behalf of the State Board of Barber Examiners (the “Board”), you ask two questions
concerning tbe barber school tuition protection account (the “account”) established by Occupations
Code section 1601.3571.’

           Section    1601.3571,   added in 2001 by the Seventy-seventh          Texas Legislature,     reads as
follows:

                     (a) If on January 1 of any year the amount in the barber school tuition
                     protection account is less than $25,000, the board shall collect a fee
                     from each barber school during that year by applying a percentage to
                     the school’s renewal fee at a rate that will bring the balance of the
                     account to $25,000.

                     (b) The comptroller shall invest the account in the same manner as
                     other state funds. Sufftcient money from the account shall be
                     appropriated to the board for the purpose of refunding unused tuition
                     if a barber school ceases operation before its course of instruction is
                     complete.     The board shall administer claims made against the
                     account.

                     (c) Attorney’s fees, court costs, or damages may not be paid from the
                     account.

                      (d) The barber school tuition protection account is created as a trust
                     find with the comptroller, who is custodian of the fund.



         ‘See Letter from Douglas A. Beran, Ph.D., Executive Director, State Board of Barber Examiners, to Opinion
Committee, Office of Attorney General (Mar. 7,2003) (on file with Opinion Committee) [hereinafter Request Letter].
Douglas A. Beran, Ph.D. - Page 2                 (GA-0092)                                                 P




TEX. OCC. CODE ANN. 5 1601.3571 (Vernon 2003) (emphasis added).            The section was added,
according to the legislative history, so that unused tuition could be refunded “if a barber school
ceases operation before its course of instruction is complete.” SEN. RESEARCHCENTER,BILL
ANALYSIS,Tex. S.B. 660,77th Leg., R.S., 5 IO (2001) at 2.

         You ask first whether students “that receive federal money. . . for their barber school tuition
(as opposed to students who pay their own tuition)” are eligible for tuition protection.       Request
Letter, supra note 1, at 1. We cannot, of course, determine in any particular instance who may be
a proper claimant for such funds. It may, for example, be the federal government itself that has the
right to be reimbursed in some instances, rather than the student. However, nothing in the statutory
language limits the kind or source of tuition funds that may be refunded.            We cannot add a
qualification not found in the statute. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864,867 (Tex. 1999) (courts may “add words into a statutory provision only when necessary,to give
effect to clear legislative intent”). Tbe only statutory requirement is that “unused tuition” must be
refunded. TFX. OCC. CODEANN. 5 1601.3571(b) (Vernon 2003). The board is given the duty and
authority to administer claims against the fund, and consequently, to determine the validity of any
particular claim. But, as with any administrative agency, the board does not have the authority to
impose new requirements or burdens not contemplated by the statute. State v. Exiga, 71 S.W.3d429,
433 (Tex. App.-Corpus Christi 2002, no writ); R.R. Comm’n. v. Arco Oil &Gas Co., 876 S.W.2d
473,481 (Tex. App.-Austin 1994, writ denied).

         Your second question is, “Under what circumstances may [the account] be used now to
protect eligible students.“* Request Letter, supra note 1, at 1. As you note, “The Barber Board does
not have appropriation authority to disburse funds from the account.” Id. As we understand it, your
concern, therefore, is how these moneys may bc disbursed for the purpose for which the account was
created.

         Ordinarily, moneys cannot be disbursed from the treasury without appropriation authority.
Article VlIl, section 6 of the Texas Constitution provides that “[n]o money shall be drawn from the
Treasury but inpursuance of specific appropriations made by law           .” TEX. CONST.art. VIII, 5 6.
However, trust funds held outside the treasury for the benefit of a particular group may be expended
without legislative appropriation, because such funds “do not belong to the state in its sovereign
capacity.” Friedman v. Am. Sur. Co. ofNew York, I5 I S.W.2d 570,579 (Tex 1941); Tex. Att’y Gen.
Op. Nos. GA-7~5 (2003) at 7, JM-539 (1986) at 4, JM-427 (1986) at 4; Tex. Att’y Gen. LO-92-68,
at 2. The general indicia of such trust funds are:

                (1) that they are administered by a trust or trustees, (2) that the assets
                are neither granted to the state in its sovereign capacity nor collected
                for the general operation of state government, and (3) that they are to
                be spent and invested for specific, limited purposes and for the
                benefit of a specific group of individuals.

Tex. Att’y Gen. Op. No. JM-300 (1985) at 2.


        ‘Again,as noted above,othersbesidesstudentsmayin certaininstanceshaveclaimsagainstthe fund.
Douglas A. Beran, Ph.D. - Page 3               (GA-0092)




         The fund in question is maintained solely for the purpose of making the tuition refunds that
may become necessary and is for the benefit only of those who may be eligible, as determined by the
board, for such refunds. The fund is moreover specifically denominated a trust fund by section
1601.3571(d).      See TEX. OCC. CODE ANN. 5 1601,3571(d) (Vernon 2003). Accordingly, the
strictures of article VIlI, section 6 do not apply to it.

         The statute gives the authority to “administer claims made.against the account” to the board.
Id. 5 1601,3571(b).      However, the account is, as we have noted above, “a trust fund with the
comptroller, who is custodian of the fund.” Id. 5 1601.357 l(d). Accordingly, it is the comptroller,
in the exercise of her authority over the fund as outlined in section 404.069 of the Government Code,
who has the power to disburse moneys from the fund. Under section 404.069, trust fund moneys
are held “in the same manner as the departmental suspense account.” TEX. GOV'T CODE ANN.
5 404.069(a) (Vernon Supp. 2003). They may be “withdrawn only on a warrant drawn or an
electronic funds transfer initiated by the comptroller.” Id.

         Section 1601.3571(b) requires that “[slufficient money from the account shall be
appropriated to the board for the purpose of refunding unused tuition if a barber school ceases
operation before its course of instruction is complete.” TEX. Oct. CODE ANN. § 1601.3571(b)
(Vernon 2003). Given that the source of revenues in the account is not the general revenue fund and
that the sentence immediately preceding this one describes an obligation of the comptroller, we read
this sentence as requiring the comptroller to set aside and disburse sufficient funds for this purpose
from the test account. When the board in its capacity as administrator determines the validity and
amount of a claim against the fund, it should authorize the comptroller to prepare a warrant or an
electronic funds transfer for that amount.
Douglas A. Beran, Ph.D. - Page 4               (GA-0092)




                                        SUMMARY

                        Claims for unused tuition from a barber school that ceases
               operation may be paid from the barber school tuition protection
               account regardless of the source of the unused tuition. The Board
               of Barber Examiners administers claims against the account. The
               account is created as a trust fund with the Comptroller of Public
               Accounts, who is responsible for disbursements            by warrant or
               electronic funds transfer from the fund. Because the account is a trust
               fund, the strictures of article VIE, section 6 of the Texas Constitution
               do not apply to it.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WJLLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
