Untitled Texas Attorney General Opinion ( 1950 )

.
October 9, 1950
Hon. Robert S. Calve&
Comptroller of Public Accounts
Austin, Texas~
Opinion No. V-1113.
Re: Legality of drawing war-
rant for refund of money
paid into State Employee
Retirement System by a
former State employee
_f who has been convicted of
obtaining State funds by
filing false tax refund
claims.
Dear Mr. Calvert:
You request an opinion of this office concern-
ing the refund of accumulations paid into the State Rm-
ployeesI Retirement Fund and state the following facts
fin your opinion request:
"Raymond M. Ranks, a former employee of
this department, has recently been convicted
In the District Court, Travis County, Texas,
and sentenced to a term in the state peniten-
tiary upon the charge of filing false claims
for refund of the motor fuel tax.
"An audit of this department shows that
Raymond M. Hanks obtained from such false
.claims filed in this department approximately
$38,000.00. None of this $38 000.00 has been
repaid to the State by Raymonr3M. Hanks.
"Raymond M. Ranks was an employee of this
department for approximately 17 years and was
an employee at the time the State Employee's
Retirement System became effective. He was a
member of the retirement system endhas paidinto
such system a sum of $300.00. He has accumu-
lated a sum of 15 years prior service into the
retirement system.
. _ . ,
Hon. Robert S. Calve& - Page 2 (V-1113)
"This departmenthas received a claim
signed by Raymond M. Hanks for the amount
of money he has paid Into {he retirement
system, requesting that we issue warrant pay-
able to Raymond M. Hanks for the amount he
has actually paid into the retirement system.
Raymond M. Hanks terminatedhis employment
with this department 18 months ago and has
not been an employee of the retirement system
since."
The,question to be answered, based upon these
facts IS whether you are authorized to issue a warrant
payable to the above-named former employee for his con-
tribution to the Employees' Retirement System.
Article 4350, Vernon's Civil Statutes, pro-
vides:
'No warrant shall be issued to any person
indebted to the State, or to his agent or as-
signee, until such debt is paid."
It is well settled that the unlawful taking
of money or other thing of value creates a debt recover-
able in a civil action as well as a criminal liability to
the State for the unlawful taking. m ake ;35 S.W.
708 (Tex.Clv.App.1896); Downs v. Citv of Baltimore 111 Md.
674, 76 A. 861 (1910). Thus the claimant In thls'case is
indebted to the State of Texas for the amount of money he
received by virtue of his false claims, for which offense
he was duly convicted. The civil action, however, is not
dependent upon the criminal convictionbut is based solely
y;goje unlawful taking. Annotation 41 L.R.A. (N.S.) 255
Since Hanks is indebted to the State, under the
clear mandate of Article 4350 you are not authorized to is-
sue a warrant to the claimant so long as his debt to the
State is outstanding.
It is true, as you state In your opinion request,
that Section 9 of Article 622&, Vernon’s Civil Statutes,
the Texas Employees’ Retirement Act, provides that “the
right of a person . . o to the return of contributions,..0
and the moneys In the various funds created by this act, are
hereby exempt from any State or municipal tax, and exempt
Hon. Robert S. Calvert - Page 3 (V-1113)
from levy and sale, garnishment,attachment, or any other
process whatsoever." We are precluded from a considera-
tion of this provision since the prohibition of Article
4350 against the issuance of a warrant attaches prior to
any legal process on the part of the State to recover the
contributions. Whether the funds would be subject to at-
tachment or any other process does not concern the lssu-
ante of a warrant in the first instance. Since the Legis-
lature has manifested the intent that no such warrant shall
be issued, this involves no process such as levy or attach-
ment. Nor does Section 9 affect the outstanding debt; it
remains in-existence even though funds normally available
to satisfy the indebtednessare not subject to levy, gar-
nishment, or attachment.
It is therefore our opinion that you may not ls-
sue a warrant to Hanks so long as he remains Indebted to
the State of Texas.
SUMMARY
Article 4350, V.C.S., prohibits the is-
suance of a State warrant for.the purpose of
paying the amount of accumulated contributions
standing to the credit of a former State em-
ployee in the Employees' Saving Fund (Art. 6228a,
V.C.S.) when such former employee is indebted
to the State as a result of the embezzlement of
i State funds.
Yours very truly,
APPROVED: PRICE DANIRL
Attorney General
C. K. Richards
Trial and Appellate
Division
By &YyLL+-i
Charles D. Mathews E. Jacobson
First Assistant Assistant
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