Untitled Texas Attorney General Opinion ( 1958 )

Honorable Robert S. Calvert :Opinlon No. WW-409 Comptroller of Publia Acaounts Capitol Station Re: Should the amount of Austin, Texas earnest money forfeited on the sale of property by the Board of Control for the Highway Depart- ment be deposited and credited to the Qeneral Revenue Fund, or shoula it be deposited to the Dear Mr: Calvert: State Highway Fund? s _:. You have requested an opinion of this offlae as to whether ,theamount of earnest money forfeited on the sale .of property by .the'Boardof Control for the Highway Department. should be deposited to the General Revenue Fund or.to the State Highway Fund. The property sold, and upon which sale the earnest money was deposited, is a house acquired by the State Highway Department in the purchase of a highway right-of-way. The purchase of the right-of-way was made from the State Highway Fund. The Board of Control is given certain authority of sale and disposal of State personal property by the Salvage and Surplus Act of 1957, which appears as Article 666 of Ver- non's Annotated Texas Clvll Statutes. Section 4 (e) of Article 666 reads as follows: "The proceeds from the sale of any surplus property less the cost of advertising the sale shall be deposited to the credit of the item of appropriationto the agency for whom the sale was made. A'portion of the proceeds from the sale of any surplus property equal to the cost of advertising the sale``shailbe deposited in the State Treasury to the credit of the item of appropriation to the State Boar$ of Controls - from which such cost was expended. (Rrnpahslsours) Honorable Robert S. Calvert, Page 2 (W-409) In our opinion the controlling term of Section 4 (e) is 'proceeds from the sale". That is to say, if the earnest money, when forfeited, can be deemed "proceeds from the sale" of the property, It must be credited to the High- way Fund. Of course the Board of Control would be entitled to a credit equal to the cost of advertising the sale. The.property was sold to the high~bidder upon the .. opening of sealed bids. The conditionsof sale.called for a.. bid deposit in the amount of fifteen per cent (15%) of ~the : bid-price.. This 15% bid deposit was to be forfeited Inthe. event the thigh bidder failed to take the property. If It were notfor .the~.sale.and the terms and conditions thereof concern- ,ingthe earnestmoney, the money in question would not have accrued to the benefit of the State. .' " : Thereforej.it Is our opinion that the 15s bid de- upon forfeiture, comes within the term "proaeeds from posi.t,~ the salei'.of porperty as that term is used in Section.*.(e) of Article 666. It is further our opinion, In answer to your question,~that the earnest money forfeited on the sale of property.by the Board of Control for theHighway Department should be credited to the State Highway Fund after ~deducting the cost of advertising the sale and crediting such sum to the Board of Control. ,,. SUMMARY The earnest money forfeited .i., on the sale of property by the Board of Control for then ,Hlghway Department comes within the term "proceeUs from then sale" as used in Section 4 (e) of Article 666 of Vernon"8 An- notated~Texas Civil Statutes,. then-efore','.this sum shouldbe ... Honorable Robert S. Calvert, Page 3 (WW-409) credited to the Sta,feHighway Fund after crediting the cost of advertising the sale to the Board of Control. WILL WILSON Attorney General of Texas BY W. 0. Shultz Assistant WOS:pf:mg APPROVED: OPINION COMMITTBB Geo. P. Blackburn, Chairman Ralph R. Rash Riley Eugene Fletcher REVIEWED FOR THE ATTORNEY GENERAL By: W. V. Geppert