Untitled Texas Attorney General Opinion ( 1939 )

THEAYTORNEY GENERAL
OFTEXAS
AUSTIX ta.T~xan
January 30, 193~
Hon. Charley Lockhart
State Treasurer
Austin, Texas
Dear Sir: Opinion No. O-108
Re: Authority of State Treasurer to
transfer money from General Re-
venue Fund to Settlement of
Estates Fund.
Your letter of January 13, 1939, wherein you request the
opinion of th-is department on certain questions therein set
forth has been referred to the writer for attention.
In order that the basis for your questions might be fully
understood by all af,fected by this opinion, we sat forth the
pertinent parts of your letter, whioh are as follows:
"Upon authority from the State Comptroller based upon
opinion No. 2890, dated August 28, 1932, the State
Treasurer transferred on August 30, 1932, all money in
the Settlement of Estates Fund to the General Fund of
the State of Texas. This money was deposited in the
Settlement of Estates Fund in compliance with Articles
Nos. 3644 to 3660 of the Revised Statutes of 1925 of
the State of Texas+
"Relying upon opinion No. 2890, dated August 28, 1932,
the State Treasurer deposited all money in the General
Fund which was paid to him as provided in Apttales 3644
to 3660, from August 28, 1932, to March 16, 1938. Cn
March 16, 1938, the Supreme Court ruled in Cause No.
7355, Manion vs. Lockhart, State Treasurer, that
Mandamus could not be issued to compel the Treasurer to
pay out of the General Fund money paid to him under
Provision of Articles 3644 to 3660, but the Court did say
that such funds should not have been placed in the
General Fund. The Court further ruled that the State
Treasurer is liable personally for having placed such
money Ln the General Fund instead of keeping it in trust.
All such money which has been deposited with the State
Treasurer since Marah 16, 1938, has been placed in the
Settlement of Estates Fund by the State Treasurer and
State Comptroller.
Hon. Charley Lockhart, January 30, 1939, page 2, O-108
"In view of the facts herein stated, please answer the
following questions:
"(1) Do the Sta.te Treasurer and State Comptroller
have authority to transfer baok to the Settlement of
Estates Fund the money transferred to the General
Revenue Fund on August 30, 19327
“(2) Do the State Treasurer and State Comptroller
have authority to transfer to the Settlement of
Estates Fund money deposited to the General Fund
from August 30, 1932, to March 16, 1938, which should
have been deposited in the Settlement of Estates Fund?
"(3) Under Articles 3653 to 3655, do the State
Treasurer and State Comptroller have authority to
issue warrant8 on the Settlement of Estates Fund in
payment of claims without appropriation by the
Legislature?
'IIt is understood that any amounts heretofore appropri-
ated by the Legislature from the General Fund for payment
of claims against the money transferred to the General
Fund on August 30, 1932, and deposited to the General Fund
from AUgUSt 30, 1932, to March 16, 1938, are to be
deducted from the amount to be transferred back to the
Settlement of Estates Fund."
Judge Sharp of the Supreme Court-of Texas, in the case of
Manion vs. Lockhart, Sta.te Treasurer, 114 SW (2nd) 216,
diSCUSSing the condition8 set out in the foregoing request,
said of the State Treasurer:
"He, in ood faith, deposited such money in the General
Revenue 5 und, which now requires that it be appropriated
by the Legislature in accordance with the provisions of
Section 6 of Article 8 of the Constitution."
Section 6 of Article 8 of the Constitution reads as follows:
"No money shall be drawn from the Treasury but in pursuance
of specific appropriations made by law; nor shall any
appropriation of money be made for a longer term than two
years, except by the first Legislature to assemble under
this Constitution, which may make the necessary appro-
priations to carry on the government under the assemblage
of the sixteenth Legislature."
In substanbe, Judge Sharp held in-the abovementioned case that
the condition8 under which the Settlement of the Estates Fund
were transferred to the General Revenue Fund were immaterial
on the question of the strict applicability of the plain pro-
Hon. Charley Lockhart, January 30, 1939, page 3, O-108
visions of Seation 6 of Article 8 of the Constitution. In this
connection, he says:
"It was contraiy to law for the funds to be deposited in
the General Revenue kund, as was done, but they have passed
beyond the control of the Treasurer, and It la now imposs-
ible for the Treasurer to pay to relator the amount of
funds so deposited with him."
If the funds in question passed beyond your control as
Treasurer, and made impOS8ible your paying relator in the
abovementioned case, the amount of money so deposjted with
you and to which he had established his right by judgment, can
Ittbe said that such funds have not passed beyond your control
with respect to your ability to transfer the same out of that
same fund, held by Judge Sharp to be beyond your control, back
Into the Settlement of Estates Fund? Clearly, if SUCh fund8
have passed beyond your control-for .the very purpose for which
they were originally paid to you, they have passed beyond your
control for every other purpose.
Articles 3653 and 3654 provide the mode of recovery by the
person claiming such fund8 previously deposited with the State
Treasurer, and provide that upon the filing of petition that
citation shall issue to the County or DiStriot Attorney in the
county in which such suit is filed to appear and represent the
State in such cause.
Article 3655 provides for the method of proaedure after the ,.'
institution of suit and reads:
"The proceeding8 in such suit shall be governed by the
rules for other civil suits; and should the plaintiff
establish his right to the fund8 claimed, he shall have
a judgment therefor, which shall specify the amount to
which he is entitled; and a certified copy of such
judgment shall be sufficient authority for the Treasurer
to pay the same."
Judge Sharp in the abovementioned opinion;clearly potits out
with respect to the Settlement of Estate8 Fund, the difference
between paying money “to the State Treasurer" and in paying
money "Lnto the State.Treasury'. Article 3644 clearly
provides that the funds involved in your inquiry are to be
paid "to the Treasurer". Judge Sharp says:
9.'hUS, It is seen that the law provides the method for
the papnt of certain funds to the State Treasurer and
specifically prescribes how Said funds may be aollected
from the Treasurer. After describing in detail the pro-
cedure to be pursued to collect such money from the
Treasurer, it 5s finally provided; 'And a certified co=
_ .,
Hon. Charley Lockhart, January 30, 1939, Page 4, O-108
of auoh judgment shall be sufficient authority for the
Treasurer to pay the same.'"
In vrew of the reasoning of Judge Sharp in the abovementioned
opinion to the effeot that the Settlement of Estates Fund is
a speoial fund and that In substance the State Treasurer is
but the custodian or trustee by virtue of the statutes, and in
view of the further fact that Article 3655 clearly provides
that: It&d a certified co of such udgment shall be sufficient
,aath&'yf;r, 2; tre-?p$ ;tep;z ",$ ;me;Aa;; is the opinion
(a) Your questions Nos.. 1 and 2 are answered in the
negative and,
(b) Your question No. 3 is answered in the affirmative.
Trusting that the foregoing answers your inquiry, we remain
Very truly yours
ATTORNEY GENERAL OF TEXAS
By Lloyd Armstrong
Assistant
Lh:hW/cg
APPROVED:
s/ Gerald C. Mann
ATTORNEY GEXERAL OF TEXAS