                                     The Attorne,y General of Texas

    JIM MATTOX
                                                     Ap.ril18, 1986
    Attorney General


    Sucmme Court Sulldina            Mr. Marvin J. Titrman                  Opinion No. JM-479
    P.~b. BOX 12548           -      Executive Director
    Austin. TX. 78711. 2548          Texas Surplus Property Agency          FCC?.:Application of the State
    5121475.2501
                                     P. 0. Box 8120                         Funds Reform Law to the Texas
    Telex 9101874.1367
    Telecopier   512/475.0266
                                     San Antonio, Texas   78208             Surplus Property Agency

                                     Dear Mr. Titzman:
    714 Jackson, Suite 700
    Dallas, TX. 75202-4508
    21417428944
                                          You have asked whether the funds of the Texas Surplus Property
                                     Agency collected as charges, fees, interest and returns from invest-
                                     ments are subject to the State Funds Reform Act of 1981 (now chapter 4
    4824 Alberta   Ave., Suite 160   of the Treasury Act, article 4393-1, V.T.C.S.).
    El Paso, TX. 79905.2793
    915/533-3484
                                          The Texas Surplus Property Agency was created in 1971 by the
                                     enactment of article 6252-6b, V.T.C.S., to constitute the "designated"
-       1 Texas, Suite 700           state agency for purposes of the Federal Property and Administrative
      ,us,on, TX. 77002-3111         Services Act of :;949, as amended, 40 U.S.C. 484(j). That federal
    713i2236S86                      statute authorizea the federal administrator of general services to
                                     donate property to the various states for redistribution to public
                                     agencies and educational or public health institutions or organiza-
    806 Broadway, Suite 312
    Lubbock, TX. 79401-3479
                                     tions. 40 U.S.C. 484(j)(2)(3).   The federal law specifies that where
    806,747.5238                     the "designated" state agency is allowed by state law to collect
                                     service charges from recipients of donated property, the method of
                                     establishing the charges is to be set out in the state plan of
    4309 N. Tenth, Suite B
    McAllen, TX. 78501-1685
                                     operation submitted to the Administrator, but the federal statute does
    512/682-4547                     not specify what is to be done with the charges collected. Federal
                                     regulations provide guidelines for some uses, but they do not conflict
                                     with Texas law. 41 C.F.R. 101-44.202(c)(S).
    200 Main Plaza. Suite 4M)
    San Antonio, TX. 782052797
    51212254191
                                          There is no federal provision of which we are aware that
                                     prohibits the deposit of such funds in the state treasury. However,
                                     article 6252-6b. ,the Texas statute establishing the Surplus Property
    An Equal OpportunityI            Agency, provides d,nsubsections 4(L) and 4(m):
    Affirmative Action Employer

                                                   (1) The agency may assess a service and
                                               handling; charge or fee for the acquisition,
                                               warehousing, distribution, or transfer by the
                                               agency ,rud, in the case of real property, such
                                               charges   and fees shall be limited to the
                                               masonable   administrative costs of the agency
                                               incurret. in effecting transfer. Receipts from
                                               such charges or fees are authorized to be



                                                             p. 2192
                                                                        ,

Mr. ElarvinJ. Titman   - Page 2 (JM-479)
                                                                        .




          available as needc,d for      the operation of   the
          agency.

            (m) The charges and fees shall be deposited in
         a Service Charge Trust Fund. Such fund shall not
         be a part of the Strce Treasury or State's assets.
         Excess moneys in tte Fund above normal operation
         expenses and appropriate reserve may be invested
         in State or municiIa1 bonds or in such financial
         institutions as ha1.u:been approved by the State
         Treasurer.   The interest or earnings accruing
         thereby shall likewlee be an asset of the Service
         Charge Trust Fund and shall not be a part of the
         State Treasury or State's assets. If the Fund is
         used at any tilne for purposes other than
         authorized in this 4ct, by the State or any other
         agency or inatmxt!ntality thereof, such money
         shall accme intemst as if it were invested as
         provided above. (Enphasis added).

     The State Funds Reform Act, article 4393-1, section 4.004(a),
provides, generally, that

         fees, fines, penalties, taxes, charges, gifts,
         grants, donations, and other funds collected or
         received by a state agency under law shall be
         deposited in the tt'easury,credited to a special
         fund or funds, and subject to appropriation only
         for the purposes Ilor which they are otherwise
         authorized to be expended.

"State agency" is defined to :.nclude

         a department, commission, board, office, institu-
         tion, or other agency that is in the executive
         branch of state government, [that has authority]
         not limited to a geographical portion of the
         state, and that was created by the constitution or
         a statute of the state. . . .

Id. 14.002. The Texas Surplus Property Agency fits that description.
See also Attorney General Opinion JM-445 (1986).

     You suggest that the State Punds Reform Act does not apply to
your agency, first, because rules of statutory construction specify
that specific provisions control general ones and that repeals by
implication are not favored; second, because "validating" acts are to
be liberally construed; and, third, because the funds are held in
tmst for "participating doneeel."



                                 p. 2193
     Mr. Marvin    J. Titzman - Page 3   (JM-479)




          Rules of statutory construction are now incorporated in chapter
     311, subchapter C, of the Gov,e:cment Code (a non-substantive revision
     of the law) enacted in 1985. See Acts 1985, 69th Leg., chs. 479, 480,
     at 3202, 3363. Section 311.02~~rovides:

                     (a) If a general provision conflicts with a
                  special or local provision, the provisions shall
                  be construed, if possible, so that effect is given
                  to both.

                     (b) If the con:flict between the general
                  provision and the special or local provision is
                  irreconcilable, the special or local provision
                  prevails as an exception to the general provision,
                  unless the general provision is the later enact-
                  ment and the manife;e intent is that the general
                  provision prevail. (Emphasis added).

     In our opinion, the State Funds Reform Act manifests an intent that
     its general provisions prevail over any conflicting provisions of
     previously enacted specific provisions found elsewhere. -See McInnis
     v. State, 603 S.W.2d 179, 183 (Tex. 1980).

/h        In language carried into the Treasury Act from the original State
     Funds Reform Act enactment (article 4393c, V.T.C.S., repealed),
     section 4.003(a) of the Treasury Act declares, "this chapter [the
     State Funds Reform Act] applic!sto a state agency only to the extent
     that it is not otherwise requkred to deposit funds in the treasury."
     We believe this passage evidences a legislative intent to reach all
     funds in the hands of state al;enciesother than those the State Funds
     Reform Act itself excuses fr.om compliance, regardless of contrary
     provisions that might be found in the enabling acts of the agencies.
     To the extent that it conflicl:swith the State Funds Reform Act, the
     Texas Surplus Property Statute has been repealed. Cf. Attorney
     General Opinion H-82 (1973) (anandatory and original actsr

          In response to the "validating act" argument, if it be granted
     that the enactment of article 6252-6b. V.T.C.S., was an act
     "validating" previous legislative authorizations in the form of
     concurrent resolutions, see se-don 5 of article 6252-6b. and if it be
     granted that "validating acts should be liberally construed, see
     Perkins v. State, 367 S.W.2d 140, 144-45 (Tex. 1963), it does not
     follow that acts "validated" :annot be repealed by later enactments,
     either expressly or by implication. The legislature may exorcise all
     legislative power not denied or prohibited to it by the constitution.
     Perkins v. State, supra.

          The State Funds Reform Act was abbreviated in some respects when
     it was transferred to the Trea!:uryAct. For example, the original act
     declared that five specific c,ircumstances excused agencies from its



                                         p. 2194
Mr. Marvin J. Titzman - Page 4    (m-479)




requirements although section 4.003(b) of the Treasury Act reflects
only four of them. However: section 2 of the bill enacting the
Treesury ACE, after expressly repealing the original State Funds
Reform hct, article 4393c, V.T.C.S., states, "any amendment, revision,
or reenactment of any of these statutes by the Sixty-ninth Legislature
is preserved and given effect as a part of this bill." Acts 1985,
69th Leg., ch. 240, at 2078, 2105.

     The provision is significant because article 4393c was revised
and amended by the Sixty-ninl:hLegislature and a sixth exclusionary
circumstance was added. See Acts 1985, 69th Leg., ch. 479, 693, at
3202, 3328; Acts 1985, 69thLeg.,    ch. 485, P8, at 4102, 4110. As a
consequence, all six State Funds Reform Act exclusions are to be given
effect "as a part of" the Treasury Act. They make the the State Funds
Reform Act inapplicable to:

             (1) funds pledged to the payment of bonds,
          notes, or other debts if the funds are not
          otherwise required to be deposited in the state
          treasury;

             (2) funds held in trust or escrow for the
          benefit of any perscn or entity other than a state
          agency;

             (3) funds set r.part out of earnings derived
          from investmznt of funds held in trust for others,
          as administrative expenses of the trustee agency;

             (4)  funds, grants, donations, and proceeds
          from funds, grants, and donations, given in trust
          to the Texas State Ilibraryand Archives Commission
          for the establishment and maintenance of regional
          historical resource depositories and libraries in
          accordance wiLh Sect:lon2A. Chapter 503, Acts of
          the 62nd Legislatwe, Regular Session, 1971, as
          amended (Article 5442b. Vernon's Texas Civil
          Statutes); or

             (5) the deposit of funds for state agencies
          subject to review .under the Texas Sunset Act
          (Article 5429k. Vernon's Texas Civil Statutes) for
          1981, which shall tme.determined by each agency's
          enabling statute; or

             (6) funds undr:r the management of          the
          secretary-treasurer of the Anatomical Board of the
          State of Texas, 8s provided by Article 4589,
          Revised Statutes.



                                 p. 2195
    Mr. Marvin J. Titzman - Page 5    (23-479)




         You submit that the funds collected by the Texas Surplus Property
    Awncy , and earnings thereon, are funds held in trust for the benefit
    of persons other than a state agency within the meaning of the second
    and third exceptions above. There is little in either the Texas
    statute or the federal act to support such an argument.

         Unlike property donated by the federal government for distribu-
    tion, the funds collected as service charges and handling fees by the
    Texas Surplus Property Agency are to be used "for the operation of the
    agency,'Inot for distribution to recipients. V.T.C.S. 6252-6b. 54Q).
    The same is true of earnings realized from surplus fees and charges.
    Id. 54(m). In our opinion, the Service Charge Trust Fund established
    Fsubsection   4(m) is a trust for the benefit of a state agency, and
    not one for the benefit of other persons.

         Inasmuch as we think t,one of the State Funds Reform Act
    exceptions apply, we advise that the funds of the Texas Surplus
    Property Agency collected as c'harges,fees, interest and rerurns from
    investments are subject to the State Funds Reform Act.

                                   jiU MM   A RP

                 The funds of the 'TexasSurplus Property Agency
              collected as charges, fees, interest and returns
              form investments ax'e subject to the State Funds
              Reform Act.




                                            -JIM      MATTOX
                                              Attorney General of Texas

    JACK HIGHTOWER
    First Assistant Attorney Gene:ral

    MARY KELLER
    Executive Assistant Attorney I:c!neral

    ROBERT GRAY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Bruce Youngblood
P   Assistant Attorney General




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