Texas Attorney General Opinion: JM-946 Page: 4 of 5
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Honorable Jim Hightower - Page 4 (JM-946)
The board you refer to is the Produce Recovery Board,
which has the duty of advising the department on "all
matters relating to the fund" and of conducting hearings on
disputed claims. Sections 103.003 _t seq.
We have difficulty discerning any lgal issues
presented by your second question. Particularly under the
circumstances assumed by your question, that the S.B. 6
transfer was lawful -- i.e. that no vested rights have been
or will be impaired -- we do not believe that the board's
legal "responsibilities" are altered by virtue of the S.B. 6
transfer.
Even apart from the operation of S.B. 6, there is no
guarantee under the statutory scheme of chapter 103 that the
fund will not be depleted. Your request letter indicates,
for example, that for the fiscal year 1987-1988 up to the
date of your letter (March 1, 1988) $47,422.75 had come into
the fund while $99,396.05 had been paid out. It is obvious
that such a revenue shortfall vis a vis expenditures is not
the result of the diversion of funds under S.B. 6, but is a
result, rather, of the statutory scheme of chapter 103 which
makes no provision to assure that the fund has sufficient
revenues to meet claims and administrative expenses.
The Department of Agriculture acting on the advice of
the board appears to have broad rule making authority under
section 103.004 for confronting such cash flow difficulties
by reducing the amounts paid out in claims under section
103.008. The latter section generally only sets ceilings on
such payouts on claims. Amounts or percentages of claims to
be paid out could, we think, be reduced by administrative
rule.
Also, the department may seek, via its rule making
authority under section 103.009 and perhaps by more diligent
efforts generally, to increase the amounts obtained in
reimbursements under that section.
Whether appropriations should be made to replenish the
fund if depleted is of course a matter within the purview of
the legislature.
S UM M AR Y
The transfer of $337,348 from the
Produce Recovery Fund to the General Revenue
Fund by operation of Senate Bill 6, 3rd
Called Session, 69th Legislature, was lawful
so long as it did not impair any vestedp. 4775
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-946, text, August 25, 1988; (https://texashistory.unt.edu/ark:/67531/metapth273384/m1/4/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.