Untitled Texas Attorney General Opinion ( 1974 )

February Il. 1974 The Honorable Robert S. Calvert Opinion No. H- 224 Comptroller of Public Accounts State ‘Finance Building Re: Whether taxes received under Austin, Texas Article 666-20d (Mixed Beverage Tax) are in the State Treasury or are held in trust for counties and cities. Dear Mr. Calvert: You have requested our opinion concerning whether taxes received under Article 666-20d (Mixed Beverage Tax) are in the State Treasury or are held trust for counties and cities. Section (b) of Article 666-20d Penal Auxiliary Laws (Texas Liquor Control Act) levys a ten percent gross receipts tax on the sales and other transactions of mixed beverage permit,tees and other specified licensees. Sect,ion (e)(l) provides that the tax be paid to the Alcoholic Beverage Commission and that “The Commission shall deposit these receipts in the State Treasury to the credit of a special clearance fund to be known as the Ivfixed Beverage ‘I& Clearance Fund. ” Section (e)( 3) provides: “As soon as possible after receipt of each quarterl,y report: of the Commission the Compt:roller shall issue to each county a warrant drawn on the Mixed Beverage Tax Clearance Fund in the amount of fifteen percent (15%) of receipts from permittees within the county during the quarter, and shall issue to each incor- porated city or town a warrant dra\vn on that fund in the amount of fifteen percent (15%) of receipts from permitteas within the incorporated city or town during the quarter, as shown by the Commission’s report. The remainder of the receipts for the quarter shall be transferred to the General Revenue Fund. ‘I p. 1045 The Honorable R,obert s. Calvert. page 2 (H-224) We believe that these stat.utor,y provis,ions manifest a clear legislative intent to assign the funds’ to a trust account to be distri~buted by the Comptroller in accordance with statut:ory dir:ec.tions and kthout furt.her appropriations. A “clearance fund” in Lus,ine,ss tc;rms is an a.ccount used for th,e “adjustment of debits and credits” (Webster’ s New World Dict:,ionary, -_-,.---_-_,--_I__ Library and Office Edition, 1973) ,which denotes the absence of ownership in the hol.der of the account; moreover, the directions to th,e Comptroller to first issue a warrant of fifteenperce,nr to the c,ities and counties and then to transfer the remainder to t.he general revenue fund, which o’bviously implies that the money was not previously in the genera.1 revenue fund, support our belief. However, the statute does place the funds “in the St:ate Treasur,y. ” and ordinarily this requires furt.her appropriation. See Attorney General Opinions H-138 (1973). H-154 (1973). Your second question, concerning the effect of $ 26, Article V, of House Bill 139 (the Appropr,iati,ms Act, 1973) resolves the situation. Section 26 provides: “REFONLIS 0% .DE.PGSI’I’S. Any money deposited knto the State Treasury which is subject to refund as provided by law shall Lt refunded from the fund into which such moneys was deposited, and so much as is necessary for said refunds ,is ‘here’by appro- priated. ” Although these funds are i:n the State Trea,sury, the cit.ies and counties where the tax originated are owners t,o the extent of fifteen percent and are ent,itled to ha,ve such amour&s refunded. We ho1.d that 5 26 accomplishes this and that the monies are appropriated by this provision. SU:tiMARY -_--- F ii’teen perc.ent of the Mixed Drink Beverage C?eara.nce Fund estn’blisilrd ‘LyeArtic1.e 666-20d (Texas Liquor Control Act:) is owned by ci,ttirs and counties where the tax originated a,nd t:he, Compt,roller shou1.d p. 1046 The Honorable Robert S. Calvert, page 3 (H-2.24) refund such amounts to the cities and counties under 5 26, Article V, of H. B. 139 (the Appropriations Act, 1973). Yours very truly, Attorney General of Texas Opinion Committee p. 1047