Case Information
*1 The Attorney General of Texas my 31, 1985 JIM MATTOX
Attorney General Eonorable William I?, Robby Opinion No. J'M-323
supreme Court BUlldhlQ Lieutenant Goverao,r of Texas P. 0. Box 12549 Re: Whether on non- P. 0. Box 12068, C,q?itol Station Austin. TX. 79711. 2548 state Austin, Texaa 781’11 5121475-2591 highvay fund may be appropriated Telex 9101574.1367 Telecopier 5t 21475-0255 Honorable Gib Lewis. Speaker for general revenue purposes
Texas Rouee of Repr'esentatives P. 0. Box 2910
714 Jackson. Suite 700 Austin, Texas 787 69 Dallas. TX. 75202-4505
2141742.8944 Bonorable Grant JOnaB, Chairman Senate Finance Committee
4824 AIberIa Ave., Suite 180 Texas State Senate El Paso, TX. 789052793 P. 0. Box 12068, Cepitol Station 915l533.3494 Austin, Texas 78711
1001 Texas. Suite 700 Eonorable Jim Rudd, Chairman Houston. TX. 77002.311 ,l Rouse Appropriaticns Committee 71312236996 Texas Rouse of Representatives
P. 0. Box 2910 Auetin, Texas 7t769
006 Broadway. Suite 312 Lubbock. TX. 79401.3479 505/747-5239
Gentlemen: You ask whether interest on non-constitutional funds in the state 4309 N. Tenth. Suite B highway fund may appropriated for general revenue purposes by rider McAllen. TX. 79501-1595 51215S2-4547 to the General Applwopriations Act. section 7-a. of the Texas Constitution dedicates to
200 Main Plaza. Suite 400 highway purposes San Antonio. TX. 782052797 51212254191
all net remaining after peymsnt 811 revenues refunds allowed by law and expenses of collection An Equal Opportunity/ derived :Erom motor vehicle registration fees, and Attirmrtive Action Employer all taxlra, except gross production and ad valorem on motor fuels and lubricants used
taxes, propel wtor vehicles over public roadways. . . . on the motor vehicle fees and fuel taxes to highcap purposes by article VIII, section 7-a. must also
be used for highuay purposes. A diversion of that to other ournoses vould vialate article VIII. section 7 of the Texas Constitu- S~.~~~ tion. Lavson' V. baker. 220 S.W. 260 (Tex. Civ. App. - Austin 1920. vrit ref'd); see ,?m.T.C.S. art. 2543d. ---
Bonorable William P. Robby
Ronorable Gib Lawis
gonorable Grant JOneB of the TeXBB Constitution does ‘not section 7-a.
actually establish a state highway fund , or refer to the fund by name. T’he fund was created by statutes which predate the adoption article VIII, section 7-a. in 194(i., See Tex. A.J.Res. 49. 49th Leg., 1945 Tex. Gen. Laws 1049. Art:Lcle6694, V.T.C.S., which derives from a 1917 statute, provides that
[a]11 funds coming into the hands the Com- mission derived :Erom the registration fees or other sources prcvided in this subdivision, for collected, shall be deposited with the State Treasurer to the credit of a special fund desig- nated as ‘The Sta,te Highway Fund’. . . .
Acts 1917, 35th Leg., ch. ‘l!)O, 423, at 424. Sections 153.503 through 153.505 of the Texas Tax Code allocate motor fuel taxes to the state highvay fund. These provtsions are the current codification statutes enacted in 1941. Acts 1941. 47th Leg., ch. 184. art. XVII, 525 at 330. The approval of article VIII, section 7-a. in 1946 gave constitutional status to d.edications funds already required by statute.
There are statutory tledications of monies to the state highway fund vhich do not have status. Article 6673a, requires funds ilerived from the sale of excess land to be in the state highwy fund. Federal aid money and county aid money is deposited in the !state treasury to the credit of the state highway fund. V.T.C.S. erl:. 6674e. Article 6674f. V.T.C.S.. provides for certain transfers of general revenue to the state highway fund.
The state highway fund therefore is not a constitutional fund in its entirety. It consists of funds dedicated to highvay purposes by the constitution as veil 81) funds statutorily required to be placed the highway It thus can be described as a collection of consti- tutional and non-constitc,tional funds. Only the constitutionally fees and motor vehicle fuel taxes are subject the rule that Interest must be spent constitutionally authorized purposes. See ‘I.T.C.S. art. 2543d; Lawson v. Baker, supra. on statefunds dedicated by statute to highway purposes
may be legally severed and placed in the general See Gulf Insurance Co. v. Jamek, 185 S.W.2d 966 (Tex. 1945) (article VIII.
section 7, of Texas Conetitution applies only to special funds created by the constitution, not by statutes); General Opinion w-338 (1981); see also Bra206 Rbrer Conservation & RBClBBiBtiOn District V. HcCrav. 91 S.W.2dmji. 1936) (article VIII, sectlon 7, of the Texas Constitution does no,t apply to general revenue funds). 2543d. V.T.C.S., severs the from the principal
of non-constitutional funds placed in state depositories.
Rooorable William P. Bobby
Honorable Gib Leuie
lionorable Grant Jones 1. hterest received on account Section
time depositB of in funds and accounte in ‘mneye the charge of the State TreeSUrer shall allo- cated fOllW6: To each constitutional fund there shall be credited the pro rata portion rece,lved due to such fund. The re- the interest mainder of the iwerest received, with the excep- tion of that powion required by other statutes be credited on a pro rsta basis to protested tax payments, shall be credited to the General Revenue Fund. The intewst received shall be allocated on a monthly beBiB.
Interest on constitutional funds must be credited to the constitu- tional fund and interest on trust funds must be credited to the trust See Attorney Genewl Opinions J&306 (1984); MW-82 (1979); E-1040 (1977); M-468 (196’):). Attorney General Opinion M-468 (1969) held that certain federal. grant funds vere trust funds, end that on them could not be transferred to general revenue but remained part of the trust 2543d, V.T.C.S., placed In the general fund on certain monies in the state highway fund, &, those
which are neither truBt funds nor constitutionelly revenues.
The legislature may appropriate by rider interest vhich article 2543d. in the general revenue fund, so long as the rider is not inconsistent with general lav. The validity of’ a particular rider depends on its only appr’opriatlng funds or limiting an item appropriation. Sea Tex. Ctmst. ert. III. s35; JeBBeU ABBOCietBB, Inc.
v. Bullock, 531=.2d 593 (Tex. 1975); Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946).
SUMMARY Interest earned on non-constitutional the state highuay fund may be appropriated general revenue purposes.
Very J truly yours, A JIM UATTOX General Texas TOU GREEN
First Assistant Attortiey General
Aonorsble William P. Robby
Honorable Gib Levis
Ronorable Grant Jones
Honorable Jim Rudd (a-323)
DAVID R. RICE&S
EXeCUtiVe ABBiBtaUt Attorrwy &Ueral
ROBWT GRAY
Special Assistant Attorney General
RICR GILPIN
Chairman, Opinion Cownittelr
Prepared by Susan L. Gerrilwn
Assistant General
APPROVED:
OPINION COMMITTEE
Rick Gilpia. Chairman
Colin Carl
SuBan GerriBon
Tony Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood