                                  October     14,   1975


The Honorable Hugh C. Yantis,    Jr.                       Opinion No.   H-    716
Executive Director
Texas Water Quality Board                                  Re:    Application   of article 8.
1700 North Congress  Avenue                                       section 6 of the Texas
P. 0. Box 13246, Capitol Station                                  Constitution to Boat
Austin,  Texas 78711                                              Certification   Fee Refunds.

Dear Mr.   Yantis:

     You ask if the requirement        of article 8. section 6 of the Texas Constitution
that “no money shall be drawn from the treasury but in pursuance of specific
appropriations     mady be law” applies to the special fund into which are put
boats certification    fees collected by the Texas Water Quality Board pursuant
to section 21.097 of the Water Code.           If it does, and if there has been no
specific appropriation       for that purpose,    you further inquire about the point
in time at which the provision prevents the refund of bes to persons who have
mistakenly     or unnecessarily     paid fees put into the fund, i. e., at what point
are the funds to be considered        “in the treasury”within     themeaning   of the
constitutional    provision;

    Subsection   (c) of section    21.097     of the Water       Code reads:

             The board may delegate the administration
        and performance     of the certification    function
        to the executive director or to any other govern-
        mental entity.    The board may prescribe         and
        require the payment,     by applicants for certifi-
        cation, of reasonable    fees based on the cost
        of administering    and performing      the certifica-
        tion function.   All certification    fees shall be
        paid to the entity performing      the certification
        function.   All fees collected by any state
        agency shall be deposited in a special fund for
        use by that agency in administering        and per-
        forming the certification     function and shall not
        be deposited in the general revenue fund of the
        state.



                                  p.   3072
The Honorable    Hugh C.    Yantis,   Jr.,     page 2 (H-716)




    All state money, including that in special funds, is subject to the
restrictions    of article 8, section 6 of the Constitution unless exempted
by other provisions       of the Constitution.     The provision   cannot be evaded
by the attempted arrest and diversion of state funds before they reach
the treasury.      State v. Angelina County, 150 S. W. 2d 379 (Tex. Sup. 1941);
McCombs      v. Dallas County, 136 S. W. 2d 975 (Tex. Civ.App.           --Dallas    1940,
writ ref’d. ,140 S. W. 2d 1109). Also see National Biscuit Co. vi State,of Texas,
135 S. W. 2d 687 (Tex. Sup. 1940); Pickle v. Finley,           44 S. W. 480 (Tex. Sup.
1898); Attorney General Opinions H-211 (1974). H-154 (1973). H-138 (1973),
V-412 (1947), O-5739        (1944). O-2658 (1940). O-2355       (1940).  Cf. Attorney
General Opinions K224 (1974). H-74 (1973).              But the provisiondoes      not
apply to trust funds belonging to others or to clearance            funds of doubtful
ownership,     even though the State Treasurer         has been made the custodian
of them.     Friedman v. American Surety Co. of New York, 151 S. W. 2d 570
(Tex. Sup. 1941); Manion v. Lockhart,           114 S. W. 2d 216 (Tex. Sup. 1938);
Rogers v. Daniel Oil & Royalty Co.,            110 S. W. 2d 891 (Tex. Sup. 1937).
However,     even trust funds, if placed in    - the Treasury     by mistake,    are
subject to it. Manion v. Lockhart,           supra.

     In our opinion the special fund into which the boat certification          fees
are deposited does not constitute such a trust fund or clearance             fund as
might escape article 8. section 6 of the Constitution.            See Attorney General
Opinion H-154 (1973).         Nor does the dedication or earmarking       of the fund
for the use of the collecting agency in administering           and performing    the
certification     process   constitute an appropriation    of the monies.     Attorney
General Letter Advisory          No. 46 (1973); Attorney General Opinions H-674
(1975). H-248 (1974). H-211 (1974).           And in our opinion the statutory
direction that such receipts should not be deposited in the general revenue
fund of the state does no’more than reiterate the requirement             that they be
deposited in a special‘fund.          It could not arrest and divert them from the
state treasury because the receipts are clearly state money meant to be
used for state purposes.          State v. Angelina County, supra.       Besides,
the term “Treasury”          refers not just to funds ib a particular vault belonging
to the Treasurer,         but also to funds on deposit in various depository banks.
Boyett v. Calvert,        467 S. W. 2d 205 (Tex. Civ.App.     --Austin  1971, writ
ref’d.,   n. r. e. ), app. dismd. ,405 U.S. 1035.

    In answer to your first question,  we believe article 8, section         6 of the
Constitution applies to the special fund for boat certification fees.




                                      p.     3073
.


    The Honorable   Hugh C.   Yantis,   Jr.,    page 3   (H-716)




        Your second question is conditioned upon a determination        that no
    specific appropriation   has been made for the purpose of refunding fees
    erroneously   paid into the special fund.   We do not think section 21.097
    of the Water Code, itself,    makes an appropriati.on of the fund for any
    purpose and we have found no reference      to the matter in either the
    current or upcoming general appropriation       act sections specially
    appropriating  money to the Water Quality Board.        But in both the 1973-74
    General Appropriations     Act, .Acts 1973, 63rd Leg.,    ch. 659, p. 1786.
    and the 1975-76 General Appropriations      Act, Acts 1975. 64th Leg.,     ch. 743.
    p. 2416, this identical provision appears under article V:

            Sec. 26.   REFUNDS OF DEPOSITS.        Any money
            deposited into the State Treasury which is subject
            to refund as provided by law shall be refunded from
            the fund into which such money was deposited,    and
            so much as is necessary   for said refunds is hereby
            appropriated.

         Ia Attorney General    Opinion H-224 (1974) it was concluded that the
    foregoing general appropriations     act provision appropriated    to the
    Comptroller     the money necessary   to make refunds of collected mixed
    beverage taxes which the general law indicated he should make to cities
    and counties.     By the same reasoning,    the provision would serve to
    appropriate    to the Water CJuality Board from the special boat certifica-
    tion fee fund the money necessary     to reimburse    persons entitled by
    general law to refunds of money placed in the special fund.         You have
    not asked us about any specific fact situations and whether a particular
    refund sought is authorized by general law. depends upon the facts of
    the matter.     See Attorney General Opinion M-1048       (1972). In any event,
    there is an appropriation    for such refunds and we, therefore,      do not
     reach your second question.

                              SUMMARY

                The special fund into which boat certification
            fees are deposited pursuant to section 21.097(c)
            of the Water Code is subject to the provisions    of




                                        p.     3074
The Honorable   Hugh C.    Yantis,        Jr.,     page 4    (H-716)




        article 8, section 6 of the Constitution,  but
        the General Appropriations    Act contains a
        provision appropriating   from such funds the
        amounts necessary    to make refunds authorized
        by general law.

                                                  Very   truly yours,




                                          /      /Attorney    General   of Texas

APPROVED:




DAVID   M.   KENDALL,     First   Assistant




C. ROBERT HEATH.          Chairman
Opinion Committee




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