Untitled Texas Attorney General Opinion ( 1972 )

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Honorable David P. Bell Opinion No. M-1048
Executive Director
Industrial Accident Board Re: Authority of Industrial
P. 0. Box 12757, Capitol Station Accident Board to make
Austin, Texas 78711 refunds under H.B. 686,
62nd Leg., R.S., 1971 (Ch.
515, p. 1755). in the situ-
Dear Mr. Bell: ations presented.
YOU have requested the opinion of this office regarding the
above question. In connection with this request, you have fur-
nished us the following information:
"under H.B. 686, effective July 1, 1971, the
Industrial Accident Board is authorized to collect
a $7.50 filing fee on each legal entity filing
notice of coverage with this agency. Since the
inception date of this Bill, numerous situations
have arisen wherein this agency has deemed it ap-
propriate to make refund of monies received and
accepted by this agency. For example:
"1. Notice of coverage is filed with the
Industrial Accident Board accompanied by check
for filing fee which through clerical error is for
an amount in excess of that required. Occasionally
the check is accepted and deposited before the
error is discovered.
“2. Occasionally duplicate payments will be
made on the same filing, and accepted and deposited
before the error is discovered.
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.
I
Hon. David P. Bell, page 2 (M-1048)
“3. Notice of coverage filed with the Industrial
Accident Board and through clerical error in issuing
the policy, the insurance company must cancel and
issue a new policy and therefore, make a new filing
with this agency.
"4. Notice of coverage on a three year policy
is filed with the Industrial Accident Board with
check for $22.50 covering policy period. During first
year policy is cancelled flat.
"The above examples are not exhaustive, but
give a good indication of the problem at hand.
Under Examples 1 and 2, clearly there is an over-
payment which should be refunded. Example, 3 results
in a double payment because a filing fee is required
on the second filing even though covering the same
policy period for which payment has already been made.
Under Example 4 a collection was made for the second
and third year, and the policy will not be in effect
during that period of time. In the event coverage is
again taken out by that employer, then an additional fee
will be required making a double payment by that em-
ployer if no refund of the prior payments can be made
by this agency."
We find no specific authority in either House Bill 686 or
in the workmen's compensation law (Art. 8306, et seq., V.C.S.)
to make refund of any of the monies paid under the circumstances
presented by you. In this connection we note that the monies
have been paid into the State Treasury and not into the suspense
account maintained in the State Treasurer's office under authority
of Article 4388, Vernon's Civil Statutes.
In the absence of specific statutory authorization, the
general law of this state expressed in its court decisions
recognizes three separate grounds which will support a claim for
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Hon. David P. Bell, page 3 (M-1048)
refund of taxes or fees paid to the state; these are 1) fraud,
2) mistake of fact, and 3) duress, Attorney General Opinions Nos.
O-6282 (1945), O-6974 (1945), and O-7113 (1946). With reference
to duress we cite particularly the recent case of State v. Con-
necticut General Life Insurance Company, 382 S.W.2d 745 (Tex.Sup.
1964). A copy of Attorney General's Opinion No. 6282, stpra,
accompanies our present opinion to you.
Even though the fac,ts might support a claim for refund under
any of these grounds, yet no refund may be made unless funds have
been appropriated for that purpose by the Legislature pursuant to
Article VIII, Section 6, of our Texas Constitution which reads,
in its relevant part,
"No money shall be drawn from the Treasury but
in pursuance of specific appropriation made by
law: . D .I'
Whether each claim for refund which you mention, and all other
claims made to you, may be approved by you as being supported by
sufficient facts under any of the recognized grounds for refund
is a question fir& for your determination. At,ty. Genl. Opin.
No. M-517 (1969). However, in the absence of an appropriation or
statute authorizing such refund payments out of designated funds
by the Legislature, you are not authorized to make any refunds
of these fees remitted to you and by you paid into the S.tate
Treasury D
SUMMARY
Erroneous or improper filing fees
paid to the Industrial Accident Board under
H-B, 686, 62nd Legi,slature, Regular Session,
1.971, and placed in the St,ate Treasury, may
not be refunded in the absence of a specific
appropriation by the Legislature of funds for
that purpose.
tra1y yours,
Att ney General of Texas
#
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Hon. David P. Bell, page 4 (M-1048)
Prepared by Malcolm L. Quick
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Sam Jones
Marietta Payne
Rex White
David Longoria
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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