Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
December 7, 1981
MARK WHITE
Attorney General
Honorable Warren G. Harding Opinion No. MW-405
Supreme Court Building
P. 0. BOX 12546
State Treasurer
Austin, TX. 76711 L.B.J. State Office Building Re: The funding of escheat
512/475-2501 P. 0. Box 12608, Capitol Station investigations
Telex 9101674-1367 Austin, Texas 78711
Telecopier 51214750266
Dear Mr. Harding:
1607 Main St., Suite 1400
Dallas, TX. 75201 You advise that holders of dormant bank deposits and inactive
2141742-8944 accounts may not be complying with the provisions of article 3272b,
V.T.C.S., which require that such funds be delivered to the custody of
4824 Alberta Ave., Suite 160
the state treasurer. You believe the services of a certified public
El Paso, TX. 79905 accountant and an attorney with expertise in the recovery of unclaimed
915/533-3464 property would be helpful to your office, and wish to know if such
personnel can be employed and, if so, out of which fund their expenses
and fees or salaries should be paid.
1220 Dallas Ave., Suite 202
Houston, TX. 77002
71316500666 The General Appropriations Act for the biennium ending August 31,
1983, appropriates money to the treasury department for "escheat
management." Acts 1981, 67th Leg., ch. 875, art. I, at 3333, 3517.
606 Broadway, Suite 312
Among the funds supplying the money appropriated is the Escheat
Lubbock, TX. 79401
8061747.5236
Expense and Reimbursement Fund No. 152. Id. (method of financing).
That is a fund established by article 3272a, V.T.C.S. A different
fund styled the "State Conservator Fund" is established by article
4309 N. Tenth, Suite 6 3272b. V.T.C.S.
McAlle”, TX. 76501
51216624547
Both statutes are a part of Title 53 dealing with escheats.
Section 15(a) of article 3272a states:
200 Main Plaza, Suite 400
San Antonio, TX. 78205 There is hereby created a revolving fund to be
5121225-4191
known as the 'Escheat Expense and Reimbursement
Fund' in the amount of One Hundred Thousand
An Equal OppOrtunityi Dollars ($1000,000) to be held by the State
Aftirmative Action Employer Treasurer,... one half (k) of which shall be used
by the Treasurer and the Attorney General,... for
the purpose of enforcement of the provisions of
this Title, including the expense of publishing of
notices, examinations, travel, court costs,
witness fees, employment of such additional
assistants and other personnel as may be necessary
for such purposes in either of their offices at
p. 1375
Honorable Warren G. Harding - Page 2 (MW-405)
salaries not to exceed the rate paid other
employees for similar services, and all other
expenses necessary for enforcement of this Title.
(Emphasis added).
The fund established by article 3272a is earmarked "for the purpose of
enforcement of the provisions of this Title." (Emphasis added).
The "State Conservator Fund" of article 3272b. comprised of
escheated accounts and other property, is earmarked for the
"enforcement of the provisions of this Article." As you noted article
3272b ("this Article") addresses depositories -- meaning banking
institutions and other organizations that receive and hold deposits of
money for others -- and the disposition of dormant or inactive
accounts. See Attorney General Opinion C-107 (1963). Section 5 of
article 3272b specifically establishes the "State Conservator Fund":
from which there shall be set aside and maintained
a revolving expense fund of Twenty-five Thousand
Dollars ($25,000) for the purpose of paying
expenses incurred by the State Treasurer in the
enforcement of the provisions of this Article,
including the expense of publications, forms,
notices, examinations, travel, and employment of
necessary personnel.... The expense fund of
Twenty-five Thousand Dollars ($25,000) is hereby
appropriated to the State Treasurer for the
purposes above stated for the biennium ending
August 31, 1963.
You suggest that the legislature intended by the foregoing
provision to make available to your office the $25,000 revolving
expense fund in addition to any other funds appropriated for the
purpose of defraying escheat management expenses. The lack of an
express requirement that the article 3272b expense fund be subject to
recurring appropriations is contrasted with the language of article
3272a establishing the Escheat Expense and Reimbursement Fund (also a
revolving fund) which expressly states, "The [funds] shall be subject
to... appropriation by the Legislature for the purpose of enforcing
this Title." Id. 515.
The absence of express language authorizing or requiring a
legislative biennial appropriation does not make this fund available
to your office without appropriation. Article VIII, section 6 of the
Texas Constitution specifies:
No money shall be drawn from the Treasury but in
pursuance of specific appropriations made by law;
p. 1376
Honorable Warren G. Harding - Page 3 (MW-405)
nor shall any appropriation of money be made for a
longer term than two years....
Moreover, by making an initial appropriation of the fund for the
biennium ending August 31, 1963, the 57th Legislature signified that
the fund was to be deposited in the treasury and appropriated by the
legislature as needed. The money in the fund is earmarked for use by
the treasurer as specified and cannot be devoted to any other purpose,
but it cannot be withdrawn from the treasury for such use unless
properly appropriated therefor. See Johnson V. Ferguson, 55 S.W.2d
153 (Tex. Civ. App. - Austin, writ dism'd). The initial appropriation
served only for the 1962-1963 biennium. -See Dallas County v. McCombs,
140 S.W.2d 1109 (Tex. 1940).
It follows that the money appropriated for escheat management,
but not the unappropriated money in the article 3272b revolving
expense fund, is available to your office for the purpose of paying
the salary and expenses of persons to assist in the investigation and
recovery of unclaimed property. Your office has ample authority to
use the appropriated funds for that purpose. Both articles 3272a and
3272b evidence the legislative intent that the treasurer actively
pursue enforcement of the statutory provisions, employing personnel
for that purpose and paying their expenses. See Attorney General
Opinion C-388 (1965).
We advise that you may employ experts to aid you in the recovery
of unclaimed property, and that their expenses and fees or salaries
should be paid from the amount appropriated to your office by the
legislature for "Escheat Management," or from other "Fiscal
Management" sub-items transfered thereto. See Attorney General
Opinion M-1010 (1971). Cf. Letter Opinion NrMS-258 (1956) (no
appropriation). You should, of course, consult pertinent riders to
the appropriations act. See Acts 1981, 67th Leg., ch. 875, art. V,
581, 2(s), 9, 40, 41, 68,: 3333, 3766, 3794, 3801, 3815, 3816, 3823
(riders re: position classification plan and schedule, manual of
accounts, court representation, outside legal counsel, consultant
contracts). See also V.T.C.S. art. 664-4 (professional services
procurement act; V.T.C.S. art. 6252-11 (position classification act);
V.T.C.S. art. 6252-11~ (private consultants).
SUMMARY
The treasury department may employ experts to
aid in the recovery of escheated property and pay
the expenses and fees or salary thereof from funds
appropriated to it.
p. 1377
Honorable Warren G. Harding - Page 4 (Mw-405)
Very truly yours,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1378