Untitled Texas Attorney General Opinion ( 1966 )

Hon. Robert S. Calvert Opinion No. C-742
Comptroller of Public Accounts
Austin, Texas Re: Authority of the Comn-
troller to effect, by a
journal entry, a trans-
fer of monies from the
General Revenue Fund to
the Departmental Suspense
as a method of refunding
money erroneously deposited
in the Treasury to the Gen-
Dear Hon. Calvert: era1 Revenue Fund.
Your request for an opinion reads as follows:
'I am in receipt of a demand from the Post
Office Department for a refund of $Z5.OO to cover
duplicate money order payments. The money current-
ly is deposited to General Revenue.
"My concern is the legal means that are avail-
able to me for refunding such duplicate payments
when using a statement of facts. Such statement
includes:
"Reference:
ORIGINAL MONEY ORDERS
Order Number
21 b B
:21?6$;ai
DUPLICATE MONEY ORDERS
2217605787 lo.00 4-23-64 z-g:-2;
2217605788 ! 15.00 4-23-64 - -
"The two duplicate Postal Money Orders, dated
4-23-64, were deposited 5-26-66 to General Revenue
Fund 1, Revenue Code 570, in the amount of $25.00,
Deposit Voucher Number l5lZl.
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,
Hon. Robert S. Calvert, page 2, (C-742)
"The Comptroller's office held the duplicates
pending receipt of information identifying the pur-
pose of the payment. The deposit was eventually made
as a 'conscience money' payment--unidentified.
"On June 20, 1966, the Post Office Department
wrote the State Treasurer citing the double payment
and requesting refund of the $25.00. The Treasurer
referred the matter to the Comptroller.
llThequestion now arises, can the Comptroller
effect by journal entry a transfer of $25.00 from
'General Revenue Fund' to Departmental Suspense'
to remedy a coding error? If such remedy is denied
then by what means can restitution be made to the
Post Office Department?"
Section 6 of Article VIII of the Constitution of Texas
provides: "No money shall be drawn from the Treasury, but in
pursuance of specific appropriations made by law; . . . .'
Money held in suspense does not go into the State Treas-
Rogers v. Daniel Royal Oil Co., 130 Tex. 386, 110 S.W.2d
8uGf'@4 (1937). Therefore, a transfer from the General Fund
(which constitutes money in the State Treasury) to the Suspense
Account would constitute a withdrawal of money from the Treas-
ury . Since the money has 'beendeposited in the General Revenue
Fund, such money has passed beyond the control of the State
Treasurer and it is now impossible to remove such deposit with-
out an appropriation. Manion v. Lockhart, 131 Tex. 175, 114
S.W.Zd 216 (1938). In the Manion case, a question similar to
the one involved in your request was before the court, and in
construing the provisions of Section 6 of Article VIII of the
Constitution of Texas, the court stated at page 219:
"It is shown that respondent, acting on the
opinion rendered by the Attorney General, deposited
this money in the general revenue fund of the state.
Respondent has in no manner profited by such aCt&Qm
on his part. He in good faith deposited such money
in the general revenue fund, which now requires that
it be appropriated by the Legislature in accordance
with the provisions of section b of article 8 of the
3Constitution. ave in his
possession such funds, and, therefore, he is unable,
without an act of the Legislature, to pay same to
those entitled thereto. Having complied with the
advice of the Attorney General, in making such trans-
fer of funds, it would be both unjust and unfair to
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Hone Robert S. Calvert;page 3, .(c-742) ',
undertake by writ of mandamus to compel the treas-
urer to vav this amount of monev out of his ner-
sonal funds. It was contrary to law for the-funds
to be deposited in the'general revenue fund, as was
done, but they have passed beyond the:control of the
treasurer, and it is now impossible for the treas-
purer to a
posited with him." (Emphasis added)
It is our opinion that the principle of law announced
in Manion v. Lockhart, supra, is applicable to the facts out-
lined in your reauest. Therefore, you are advised that the
Comptroller may not transfer, by journal entry, money deposited
in the General Fund to the Suspense Fund for the reason that the
same amounts to a withdrawal of money from the Treasury without
an appropriation and such action is prohibited by the provisions
of Section 6 of Article VIII of the Constitution of Texas.
In answer to your second question, restitution to the
Post Office Department can only be made by the Legislature en-
acting an appropriation for the purpose of refunding such money
to the ,PostOffice Department.
SUMMARY
In view of the provisions of Section 6 of
Article VIII of the Constitution of Texas, monies
erroneously deposited in the State Treasury cannot
be withdrawn except in pursuance of specific appro-
priations made by law.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
torney General
JR:mh
APPROVED:
OPINION COMMITTEE
w . 0. Shultz, Chairman
James McCoy
Malcolm Quick .
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Hon. Robert S. Calvert, page 4, (C-742)
Ralph Rash
Gordon Cass
APPROVED FOR THZATTORNEY GENERAL
By: T. B. Wright
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