             THE     ATTORNEY    GENERAL
                        OF TEXAS


                        October 5, 1990



Honorable Ann W. Richards     Opinion No. JM-1230
State Treasurer
P. 0. Box 12608               Re: Applicability of State Funds
Capitol Station               Reform Act, Government Code sec-
Austin, Texas 78711           tion 404.091, et sea., to fees
                              collected by the Board of Medical
                              Examiners   (RQ-2115)

Dear Ms. Richards:

     You have requested  our opinion regarding the applic-
ability of the State Funds Reform Act, Texas Government Code
section 404.091, et sea    to fees collected by the Texas
State Board of Medical Ekaminers.

     Sections 404.091 through 404.094 provide:

        s 404.091.   Short Title

           This subchapter may be cited as the       State
        Funds Reform Act.

        § 404.092.   Definition

           In this subchapter,   "state agency" means
        an office, institution, or other agency that
        is in the executive branch of state govern-
        ment, has authority that is not limited to a
        geographical portion of the state, and was
        created by the constitution   or a statute of
        this state, but does not include an institu-
        tion of' higher education     as defined   by
        Section 61.003, Education Code.

        g 404.093.    Applicability       Of   Subchapter;
        Exemptions

           (a) This subchapter  applies to a state
        agency only to the extent that it is not
        otherwise required to deposit  funds in the
        treasury.




                                   6539
Honorable Ann W. Richards - Page 2   (JM-1230)




           (b) This subchapter does not apply 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
       treasury;

              (2) funds held in trust or escrow  for
        the benefit of a person or entity other than
        a state agency:

               (3) funds set apart out of      earnings
        derived from investment 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 Library and
        Archives Commission for the establishment and
        maintenance of regional historical   resource
        depositories and libraries in accordance with
        Section 441.074; or

               (5) funds under the management of the
        secretary-treasurer of the Anatomical   Board
        of the State of Texas, as provided by Article
        4589, Revised Statutes.

        5 404.094.   Funds to be Deposited in Treasury

            (a) 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 treasury,
        credited to a special fund or funds, and
        subject to appropriation only for the purposes
        for which they are otherwise authorized to be
        expended or disbursed. A deposit shall be
        made at the earliest possible time that the
        treasury can accept those funds, but not
        later than the third business day after the
        date of receipt.      However,  if an agency
        determines that for seasonal or other ex-
        traordinary reasons deposits cannot be made
        by the third business day after the date of
        receipt, the agency shall provide written
        notice of the determination     to the state
        auditor and treasurer with an explanation   of
        the circumstances that require the delay.   If
Honorable Ann W. Richards - Page 3      (JM-1230)




        the state auditor finds that an agency has
        not complied with this subsection, the state
        auditor shall make an estimate of any result-
        ing financial loss to the state, taking  into
        consideration  compliance  costs that would
        have been additionally     incurred by    the
        agency, and report the amount to the legisla-
        tive audit committee,  the governor, and the
        treasurer.

           (b) Money that is required by this sub-
        chapter or by another law to be deposited   in
        the treasury shall be deposited to the credit
        of the general revenue fund unless the money
        is expressly  required to be deposited      to
        another fund, trust fund, or special account
        not in the general     revenue fund.      This
        subsection does not affect the authority    of
        the comptroller or the treasurer to establish
        and use accounts necessary    to manage    and
        account for state revenues and expenditures.

     The Medical  Practice Act, article 4495b, V.T.C.S.,
creates two funds within the Board of Medical  Examiners.
Section 3.10(a) thereof provides:

            (a) All annual reaistration fee c llected
        bv the board shall be DlaCed     in Theo State
        Treasurv to the credit of the medical    reais-
        tration fund.   The fees deposited    to this
        special fund shall be credited to the appro-
        priations of the board and may be spent only
        as provided by then General Appropriations
        Act, this Act, or other applicable   statutes.
        Money in that fund may   be used by the board
        and under its direction in the enforcement of
        this Act, the prohibition of the unlawful
        practice of medicine, the dissemination      of
        information to prevent the violation of the
        laws, and the prosecution      of those     who
        violate the laws. All distributions from the
        fund may be made only upon written    approval
        of the secretary-treasurer of the board or
        his designated    representative,    and    the
        comptroller shall upon requisition      of the
        board from time to time draw warrants      upon
        the State Treasurer for the amounts specified
        in the requisition.   (Emphasis added.)

Section 2.09(k) provides:




                              P. 6541
Honorable Ann W. Richards - Page 4      (JM-1230)




           (k) The board shall establish by rule a
       reasonable charge for those fees not specifi-
       cally determined but authorized by this Act.
       The board may not waive collection of any fee
       or penalty.   The board shall place all fees
       received under authority    of this Act, not
       otherwise specified, into the medical licens-
       lna f nd    The board is authorized and shall
       by anzua; budget determine               e  of
       handlina the funds and the purpose,    consis-
       tent with this Act, for which the same may be
       used. The budgeted expenses authorized      by
       the board shall not be a charge upon the
       general revenue of the state nor paid from
       the general revenue.   (Emphasis added.)

     Section 3.10(a) clearly requires that the board place
"[a]11 annual registration fees . . . in the State Treasury
to the credit of the medical registration     fund."   Thus,
irrespective of the State Funds Reform Act, the Medical
Practice Act itself directs that annual registration fees be
deposited in the State Treasury.

     Section 2.09(k) is silent as to the proper depository
for fees that comprise the "medical licensing          fund."
The statute states merely that the Board of Medical -Examin-
ers "shall . . . determine    the manner   of handling    the
funds . . . .I' On its face, this language is not inconsis-
tent with the deposit of these funds in the Treasury,    and,
absent further inquiry into the relevant legislative     his-
tory, a convincing  argument could be made that the State
Funds Reform Act applies to the "medical licensing     fund."
Indeed, both the State Auditor and the State Treasurer   have
made administrative determinations that fees attributable to
the medical licensing fund must be placed in the Treasury.
The rather convoluted   history of that statute, however,
requires a different conclusion.

     As originally enacted in 1981, the State Funds Reform
Act, then article 4393c, V.T.C.S., contained the following
five exemptions:

           Sec. 3.    (a) This Act applies to each
        state agency only to the extent that it is
        not otherwise   required to deposit funds in
        the state treasury.

           (b) This Act does not apply to:




                              P. 6542
Honorable Ann W. Richards - Page 5      (JM-1230)


            .


           (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 person or entity other than a
        state agency:

            (3) funds set apart out of         earnings
        derived from investment 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 Library and Archives
        Commission for the establishment and mainte-
        nance of regional historical resource deposi-
        tories and libraries     in accordance    with
        Section 2A, Chapter 503, Acts of the 62nd
        Legislature,  Regular    Session,   1971,   as
        amended (Article 544213, Vernon's Texas Civil
        Statutes); or

          (5) the denosit of funds for state aaen-
       ties subject to review under the Texas Sunset
       &&    (Article 5429k, Vernon's Texas Civil
       Statutes) for 1981. which shall be determined
       bv each aaencv's enablina statute.1

Acts 1981, 67th Leg., ch. 835, at 3189-90 (emphasis added).

     The Board of Medical Examiners is an agency that was
subject to review under the Texas Sunset Act in 1981. As a
result, the State Funds Reform Act, at least initially, was
not applicable to the board.

     In 1985, the statute was amended three times.    One
amendment, Acts 1985, 69th Leg.,  ch. 479, 5 93, at 1706,
simply changed the statutory     reference in the   fifth



     1.    This provision   was added   as a house    floor
amendment.   Debate on H.B. 1623 on the Floor of the House,
67th Leg.    (Apr. 21, 1981)    (tape available  from House
Technical Services).




                              P- 6543
Honorable Ann W. Richards - Page 6          (JM-1230)



   .


exemption to the current designation.  Chapter 479 explicitly
states that it is a non-substantive revision. UL.61,      at
1652-53. Another amendment, Acts 1985, 69th Leg., ch. 485,
5 8, at 2057-58, was part of a bill relating to the State
Anatomical Board, and it amended the State Funds Reform Act
by adding a sixth exemption.

     Finally, the 69th Legislature amended the Treasury Act,
and as a part thereof, the State Funds Reform Act.        As
adopted therein, the portion regarding     exemptions,  sec-
tion 4.003 of the act, provides:


           (a) This chapter applies to a state agency
        only to the extent that it is not otherwise
        required to deposit funds in the treasury.

           (b) This chapter   does   not apply 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
        treasury;

               (2) funds held in trust or escrow for
        the benefit of a person or entity other than
        a state agency:

               (3) funds set apart out of           earnings
        derived from investment of funds            held in
        trust for others, as administrative         expenses
        of the trustee agency; or

               (4) funds,   grants, donations,     and
        proceeds from funds, grants, and donations,
        given in trust to the Texas State Library and
        Archives Commission for the establishment and
        maintenance of regional historical   resource
        depositories and libraries in accordance with
        Section ZB, Chapter 503, Acts of the 62nd
        Legislature, Regular Session, 1971    (Article
        5442b, Vernon‘s Texas Civil Statutes).

Acts 1985, 69th Leg., ch. 240, at 1214-15.

     It is not clear why the exemption concerning the 1981
sunsetted agencies was omitted from chapter 240. The fact
that it was included in chapter 485 (relating to the Anatom-
ical Board), a substantive revision, however, means that, in
1985, the exemption continued   to be a part of the State




                                P*   6544
Honorable Ann W. Richards - Page 7      (JM-1230)




Funds Reform Act, and, as such, it removed the Board of
Medical Examiners from the purview of that statute.2    This
result is supported by our discussion  in Attorney   General
Opinion JW-479 (1986).

     In 1987, the legislature    codified the State Funds
Reform Act as part of title 4 of the Government Code.   The
portion relating to the exemptions, section 404.093 of the
code, included the Anatomical  Board exception, but omitted
the exception regarding the agencies sunsetted in 1981. The
provision, as adopted, states:

           (a) This chapter applies to a state agency
        only to the extent that it is not otherwise
        required to deposit funds in the treasury.

           (b) This chapter does not apply 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
        treasury:

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

               (3) funds set apart out of       earnings
        derived from investment 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 Library and
        Archives Commission for the establishment and
        maintenance of regional historical   resource
        depositories and libraries in accordance with
        Section 441.074; or




     2.   Furthermore, section 2 of chapter     240 repeals
certain other statutes, but not the exemption for sunsetted
agencies.  In addition, it declares that "any amendment,
revision, or reenactment  if any of these statutes by the
69th Legislature is preserved and given effect as a part of
this bill." Id. at 1215.




                              P- 6545
Honorable Ann W. Richards - Page 8         (JM-1230)




               (5) funds under the management of the
        secretary-treasurer of the Anatomical   Board
        of the State of Texas, as provided by Article
        4589, Revised     Statutes.   (V.A.C.S.  Art.
        4393-1, Sec. 4.003.)

Acts 1987, 70th Leg., ch. 147, g 1, at 358. Chapter      147
specifically declares that it "is intended as a recodifi-
cation only, and no substantive change in the law is intended
by this Act." Acts 1987, 70th Leg., ch. 147, 5 2, at 536.
Nevertheless, title 4 of the Government Code, as issued in
1990 and as quoted at the beginning   of this opinion,  con-
tains no reference to the now apparently forgotten exemption
for agencies sunsetted in 1981.

     Title 4 of the Government Code, as presently    consti-
tuted, fails to offer any clue that the State Funds Reform
Act is inapplicable to the Board of Medical Examiners,   and
absent examination of the historical circumstances, we, like
the auditor and the treasurer, would certainly     determine
that the act applies to the board. The supreme        court,
however, has recently made clear that this is not a course
available to us. In Johnson v. Citv of Fort Worth,       774
S.W.2d 653 (Tex. 1989), the court declared:

        When a conflict exists between a former
        statute and a revision made pursuant to the
        legislature's directive to the Texas Legisla-
        tive Council to make a nonsubstantive   revi-
        sion of the statutory law, the former statute
        will control.

Id. at 654-55; see also Minton v. Perez, 783 S.W.2d 803, 805
(Tex. App. - San Antonio 1990, no pet.)

     Accordingly, we are compelled to conclude     that the
State Funds Reform Act is not applicable to the Texas State
Board of Medical Examiners.

                       SUMMARY

           The State Funds Reform Act, Texas Govern-
        ment Code section 404.091, et se ., is not
        applicable to fees collected by the Texas
        State Board of Medical Examiners.  All annual
        registration  fees collected by the board
        must, however, be deposited in the State




                                 P. 6546
.

    Honorable Ann W. Richards - Page 9      (JM-1230)




           Treasury pursuant to section 3.10(a) of the
           Medical Practice Act, article 4495b, V.T.C.S.



                                       J-h
                                       Very truly yo    ,
                                             .


                                       JIM     MATTOX
                                       Attorney General of Texas

    MARY KELLER
    First Assistant Attorney General

    IOU MCCRKARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RENEA HICKS
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, opinion Committee

    Prepared by Rick Gilpin
    Chairman, Opinion Committee




                                  p. 6547
