Untitled Texas Attorney General Opinion ( 1947 )


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  •                                                                          R-288
    HE    A%TTOH?NEY           GENERAL
    OIF TEXAS
    PRICE   DANIEL
    ATTCIRNEYGENERAL
    Hon. C. Ii. Cavness          Opinion No. V-143
    The State Auditor
    Austin,  Texas               Rc :   Transfer of an anonymous
    debt payment from the Ex-
    ecutive Department Sus-
    pense to the General,Rev-
    Dear Sir:                           enue Fund.
    In your letter      of March 24, 1947, you ask the
    advice of this department      as to the disposition that
    should be made of $504.00      which has been in the Rxecu-
    tive Department Suspense      Account since September 12,
    1939.
    The facts,   ,briefly summarized from the in-
    format   ion furnished,    seem to be:
    This s~.pf    money in currency was received
    by the Governor wita an anonymous Letter from the send-
    er that It represented the payment ,,,of, a debt owisn by
    him to the State of Texas.     (Emphasis supplied,)   It
    was then determined in conference with a revresenta-
    tive of the Attorney General’s Office,     the State Aud-
    ftorss Office,   and the ,State Treasurer,  ta place the
    money In suspense awaiting further information.      There
    it has remained for more than seven years without any
    addit ional informat ion,
    The only question necessary for us to deter-
    mine is, does this money really belong to the State?
    %,::,   ,,        If it does, then we have no difficulty   in arriving at
    a legal solution which is simple and practical.
    The only evidences available   to us as to the
    character of the fund Is furnished by the anonymous
    sendt r 0 Re said It was in payment of a debt he owed
    the Stat,e, and in his use of this language we are just-
    ified, in assuming that he meant a definite   monetary ob-
    ligation,  as distinguished  from a gift or donation.
    This would be the ordinary import of this language, and
    Bon, C. H. Cavness,      Page 2, v-143
    especially   when accompanied by a sum of money to dls-
    charge the debt 0 It is some evidence that the sender
    was not making a voluntary gift or donation to the
    State, for it Is hardly probable, had this been his
    purpose, he would have sent $504,00 instead of $500,
    00, We therefore    rule out the posslblllty  that the
    sender Intended to make a voluntary gift or donation
    to the State merely to gratify    a sense of obligation
    for some undisclosed    act of kindness that he may at
    some time have received from some agency or Individual
    representing   the State,
    Whether this money represents a paymant of
    funds that may have been at ~OBGtiac illegally     exacted
    from the 3tate by the sender or the paynsnt of a wre
    civil  obligation,  such as past due taxes, makes no dlf-
    ference Q In either event, the money would belong to
    the State, if we accept the statemnt     of the sender as
    true, and we know of no reason why we should not-
    Having concluded,  as we have, that this mon-
    ey belongs   to the State, the only other question we
    taeed dtttmlmz   Is, to what fund should it be credited,
    Artfcle   4388, V, Co 9., provides in part as follows:
    ‘As soon as the status of money so placed
    with the Tramsurer on a deposit receipt  is
    determined, it shall be transferred  from the
    suspense account by placing the portion of it
    belonging to the State la the Treasury by the
    issuance af a deposit varrant, and the part
    found not to belong to the State shall be rs-
    funded, ’
    We thirnk a proper construetioa   of the fort-
    40ing provision   of Article  4388, as to the meaning of
    the status of the money’ is whether it is State mon-
    ey or subject   to be refunded, as it should be if it
    does not belong to the State,     We believe a careful
    txaminat Ion of                         118 30 Wo 62d)
    936 (Austin 6,                       is construction,
    From it me quotes
    'The fund was p1aeed ira the Dsuspen-
    sion account B of the Treasur       by state of-
    f icials     acting under Art Q 43g8 p and can
    only be drawn out of said aecoutd when
    and In the manner prescribed       by said Ar-
    ticle,      -- that is: Bas SOORas the status
    .   .
    HOP. C. H. Uavntss,    Page 3, V-143
    of meaeg 80 placed * * * Is determined,
    Quhen it shall be transferred,        if belong-
    ing to the state, by deposit in the Trea-
    sury, aad if found net to belong to the
    state to be ‘refunded. s In either cast
    the method is by warrant signed by the
    Ccbmptroller and countersigned        by the Trea-
    aur4r.    The Article     is explicit    in rt-
    quirlag   the stransfer’ to b made ‘as soon
    aa’ which necessarily        implies ‘not before t
    the ‘status       of the meney Is ‘determined. t
    Clearly thr word ‘status t includes every
    essential    fact to its proper disposition,
    frcm the viewpoint of the Treasurer,           its
    then custodian,        If it should belong to
    the state it must be deposited         in the Trta-
    surg by means of a ‘deposit         warrant. * If
    it does not belong to the state,          it must
    be ‘refunded* by means of a ‘refund war-
    rant a D Ascertainment of the ‘status’ of
    the- money Involves dettr*lnatlen         of the
    proper payee of such ‘refund warrant 0 t
    Ordinarily     ‘refuud’ meana to pay back,
    thus Implying that the payment Is to be
    made to the party from whom received.
    Such party was the Racing Commission, con-
    ctdedly now defunct.        Independently of
    this fact, we think, contextually,          the
    prescribed     ‘refund’ means to the party
    legally   entitled     to demand and rtaelve
    it fror the Treasurer.
    “(4)   Wnder the Artialt   no right to
    demand the money from the Treasurer could
    properly be asserted until its ‘status ) is
    vdttsrmiaed. ( There can be no serious        ques-
    tion but that ldetermlnedl      in the sense of
    the Article    means judicially   determined.
    In any event, such Is its necessary mean-
    ing where the Treasurer and Comptroller,
    each of whom must act to effectuate        a trans-
    fer of the money, do not voluntarily        assume
    the rts onslbillty    of making such determlna-
    tioa.    F o compel their action a judicial      pro-
    ceeding is essential,     and this means a plen-
    ary and not a mere iattrlooutory       prooeedlng,”
    The Comptroller and the State Treasurer, es-
    pecially after this long lapse of time, may now deter-
    sine that thla is State menty and transfer It from
    Ken, C. H. Cavneas, Page 4, V-143
    suspense as provided   in Article    4386, V. 0, 3.
    In the absence of any knowledge aa to the
    original  source of this money, it should be placed to
    the credit of the Qeneral Fund.
    The Comptroller and State Treasurer
    are authorized to transfer from Suspense
    to the GeneralIFund money received from
    an anonymous sender in payment of a debt
    he asserted he owed the State.    Under the
    circumstances,   it becams State money and
    subject to be transferred   as provided in
    Art lcle 4386 o Daniel v, Richcreek,   118
    3, W. (2d) 935.
    Very truly   yours,
    ATTORNEY
    OENERALOFTRXAS
    APPROVEI)
    APR. 15, 1947
    %L      Qtfii!d
    LPL:al ndr smrj               ATTORNEY
    OENERAL
    

Document Info

Docket Number: V-143

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017