Untitled Texas Attorney General Opinion ( 1947 )

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