The Honorable   W. D. “Chris”      Chrisner               Opinion.No.     H-   154
Chair~man, Performance     Certification
Board for Mobile   Homes                                  Re:     Can the Department
                                          \
Box 12157, Capitol Station                                        expend all of the money
Austin, Texas 78711                                               raised by fees set by
                                                                  the Board and related
Dear     Mr.     Chrisner:                                        questions

     According    to your letter    requesting  our opinion,  the ~Performance
Certification    Board for Mcbile Homes,       pursuant to the Texas Mobile Homes
Standards     Act (Article   5221f, Vernon’s   Texas Civil Statutea,    as amended,
Acts 1971, 62nd Leg.,       ch. 896, p. 2765), adopted a schedule of fees sufficient
to pay the costs incurred       in the enforcement    of the Act.  Nevertheless,      then
63rd Legislature      in iLs Appropriations    Act for 1974 and 1975 (House      Bill
139) appropriated      an amount for this work less than the income that will
be available.

       You ask:

                “Can the department  expend all of the money
           raised by fees set by the Board? ”

    Article   5221f, V. T. C. S. , (h ereafter     “the Act”) provides       generally   for
the establishment    of standards    for the manufacture         of mobile homes and their
enforcement    by a Performance       Certification     Board       It authorizes    the Bureau
of Labor Statistics    to issue a certificate      of acceptability     to mobile home
manufacturers.

    Section 8 empowers    the Bureau to inspect mobile homes at the place of
manufacture   and it is authorized  by § 10 to have its inspectors travel within
or without this state for purposes   connected   with the Act.

       Section    11 of the Act provides    in part:




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The   Honorable         W.     D.    “Chris”    Chrisner,     page   2   (H-154)




            “(a)   The board [Performance        Certification    Board]
            with the advice of the department       [of Labor Statistics]
            shall establish    a schedule of fees to pay the cost
            incurred   by the department     for the work relating       to
            the administration     and enforcement       of this Act . . .

            .    . .


            ‘l(d) All fees shall be paid to the state treasury   and
            placed in a special account for the use of the department
            in the administration  and enforcement    of this Act. ”

    The Appropriations     Act for fiscal 1974 and 1975, aupra, at p. III-95
makes a specific    appropriation  for administrations of the Mobile Home
Standards Act to be financed from “Texas       Mobile Homes Standards    Fund
No. 82”.

      The       Constitution        of Texas,   in 5 6 of Article    8, provides:

            “No money shall be drawn from the Treasury   but in
            pursuance of specific appropriations made by law
            . . . I,

    A distinction    may be made between funds deposited          in the Treasury   and
those paid to the Treasurer,        a deposit of the latter type being aubj.ect to the
construction    that it constitutes   the Treasurer  a truatae who may pay the funds
to the person    entitled to them without specific     appropriation.     Manion v.
Lockhart,    114 S. W. 2d 216 (Tex.    1938); Friedman     v. American    Surety Co. of
N.      151 S. W. 2d 570 (Tex.      1941)

     However,    there is nothing about the fees collected  under the Act to
indicate  that they are to be held in trust, and it is our opinion that they may
not be withdrawn     from the Treasury   without a specific appropriation.      Compare
Attorney   General    Letter Opinions No. MS-13 (1953) and Attorney      General
Opinions   WW-442 (1958) and H-138 (1973).

     We are not unmindful       of those decisions      holding that where,    in a general
statute,    funds are appropriated,       it is unnecessary    that they be appropriated
in the Appropriations      Act.    Pickle    v. Finlqr , 44 S. W. 480 (Tex.     1898);National
Biscuit    Company v. State of Texas,          135 S. W. 2d 687 (Tex.   1940).    In the last
cited-case     the Supreme   Court said:



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.

    The   Honorable   W.   D.   “Chris”   Chrisner,      page    3     (H-154)




             ‘1. . . An appropriation     can be made for all funds
             coming from certain      sources  and deposited   in a special
             fund for a designated    purpose.    In such instances,   it is
             not necessary   for the appropriating    Act to name a cer-
             tain or even a maximum       sum . . . ” (135 S. W. 2d at 693)

         However,     we are unable to find in Article          5221f, V.T.CS , any         language
    of appropriation.      The language      of $ 1 l(d), which we have quoted              above,   does
    no more than to “earmark”          the funds for the particular       purpose;          compare
    Attorney    General   Letter    Advisory    No. 46 (1973).      Furthermore,            a statutory
    appropriation     may be valid for no more than two years.              Article         8, 5 6 of the
    Constitution    of Texas;    Attorney    General     Letter  Advisory   No. 46          (1973)and
    cases there cited.

        We are of the opinion,       therefore, that your question   should be answered:
    That the Department     may     not expend unappropriated    money raised by fees set
    by the Board;  it is limited     to the amount appropriated    by the Legislature.

                                    SUMMARY

                  Even though the,fees   paid into the Treasury   pursuant
             to the Texas Mobile    Homes Standards     Act may exceed the
             amount appropriated     by the Legislature   for expenses   of
             enforcing  the Act, the Board of Labor Statistics     is limited
             to the amount so appropriated     and may not expend unapp-
             ropriated  funds for that purpose.




                                                      JOHN L.        HILL
                                                      Attorney       General     of Texas




    DAVID M.   KENDALL,            Chairman
    Opinion Committee

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