Untitled Texas Attorney General Opinion

. .
Honorable Jesse James Opinion No. C-107
State Treasurer
Capitol Station Re: Questions relating to the
Austin 11, Texas maintenance and disbursement of
the State Conservator Fund under
the provisions of Section 5 of
Article 3272b, Vernon's Civil
Dear Mr. James: Statutes.
You have requested the opinion of this office with regard
to the State Conservator Fund establis~hedby the provisions of
Section 5 of Article 32721,of Vernon's Civil Statutes.
The relevant portion of Section 5 of Article 3272b reads
as follows:
"Section 5. State Conservator Fund. All
funds received by the State Treasurer under the
provisions of this Article or from the eacheat of
any deposit, credit, account or other property
held by any bank or other institution covered by
Section l(a) hereof shall be deposited Into a
separate fund to be known as the 'State Conservator
Fund 1 from which there shall be set aside and
main&alned a revolving ex ense fund of Twenty-five
Thousand Dollars ($25 000P for the'purpose of paying
expenses incurred by the State Treasurer in the
enforcement of the provisions of this Article,
including the expense of publications, forms
notices, examinations, travel, and employment of
necessary personnel; and thereafter any amounts
remaining unpaid to owners shall be transferred ~to
the Available School Fund; provided that the State
Conservator Fund shall never be reduced below'Two
Hundred and Fifty Thousand Dollars ($250,000).
This sum shall remain available for payments to
those who may at any time in the future establish
their ownership or right as herein provided to any
deposit or account delivered to the State Treasurer
under this Act. The mone 8 in such fund over Fifty
Thousand Dollars ($50 000s shall be invested from
time to time by the State Treasurer in investments
-527-
Honorable Jesse James, Page 2 (C-107)
which are approved by law for the investment of any
State Funds, and the Income thereof shall be and
becorn;a part of the said State Conservator Fund.
. . .
The specific questions which you have asked are as follows:
"1 . Does the clause which reads 'provided
that the State Conservator Fund shall never be
reduced below Two Hundred and Fifty Thousand Dollars
($250 000)' mean that no payments should be made
from this fund that would result in a balance on hand
of less than $25O,OOO? Is It intended that the sum
designated be held as a reserve to assure that there
will be funds available to pay claims, and not merely
as the original sum from which claims are to be
regularly paid?"
"2 . If In your opinion funds in the sum of
$25O,OOO must be maintained as a reserve when should
funds be transferred from the State Conservator Fund
to the Available School Fund and in what amounts?"
"3. If you conclude that regular payments of
claims ma be made from the Two Hundred Fifty Thousand
($250 0007 Dollars referred to is It mandatory that
monie6 received for the State Conservator Fund under
the provisions of Article 32721,be held for any specific
eriod of time before such funds, exceptlng'the
250,000 referred to and the funds to be~deposited to
the revolving expense fund, may be transferred to the
Available School Fund?"
You further state that there has been no prior departmental
construction of this provision by your office.
Your questions relate to the operation and effect of Section
5 of Article 3272b and It becomes our duty to cotistrue'thelanguage
of ‘this Section in a manner which will impart a'falr and proper
meaning to the statute 'and,at the same time give the,effect
intended by the Legislature. Pusse;~ ;a Fgaquhar, 55'Tex.-355
(1881); Magn olia Petroleum Company lk' 125 Tex. 430, 83
S.W.2d 929 1935);~ Petroleum Casualty Cornpan+v. Williams, 15
S.W.2d 553 Com.App. 19291.
The primary consideration of statutory construction is to
determine the intent of the Legislature with respect to the
particular enactment and once such intent is ascertained we are
-528-
- .
Honorable Jesse James, Page 3 (c-107)
to give it force and effect. Trimmier v.~Carlton,' Tex. 572,
296 S.W; 1070 (1927); Popham v. Patterson, 121 Tex. 615, 51 S.W.2d
; Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d
If the.intent of the Legislature is discernable from the
language used. then our lnauirv as to such intent should orooerlv
go no Further: Qaddy v. First"Nationa1 'Bank; 115 Tex. 39'3,283 "
S.W; 472 (1926); Rmplre Gas & Fuel Company v; State, 121 Tex.
138. 47 S.W.2d 265 (1932). Onthe other hand. where the intent is
not-clear from the language itself, we may &sort to such aids as
the legislative history of a particular enactment in order to
e~rrive-atthe Intent of the Legislature. State v. Texas & N.O.R.
co., 125 S.W. 53 (Civ.App. 1910, error ref.).
Your first question relates to the significance of the
limiting phrase, contained in Section 5, which reads:
,I . provided that the State Conservator
Fund shall never be reduced below Two Hundred and
Fifty Thousand Dollars ($25O,OOO)."
Although you have stated your first question in two parts,
both parts are directed toward the same inquiry and merely state
the same question in different terms. As we read this question,
you are concerned as to whether this limitation prevents the
payment of claims pursuant to Section 6 of Article 327213from
this particular sum of $250,000.
The general effect of a proviso Is to qualify or limit
something which it follows. conseauentls its effect is normally ,
limited Eo the clause which next precedes it. Potter~v.'Robinson,
102,Tex. 448, 119 S.W. 0 (1909); Fenet v. McCuiatlon, 105 Tex.
299, 147 S.W. 867 (1912 .
Bearing this in mind, we are of the opinion that the intent
of the Legislature with respect to the proviso inquired about is
clear and unambiguous and any inquiry beyond the language of the
statute itself would be unwarranted. The phrase which precedes
the proviso is a directive tothe State Treasurer to transfer funds
from the State Conservator Fund to the Available School Fund. It
is the transfer of'funds to the Available School Fund to which the
limitation of the proviso relates and not the payment of claims
from the State Conservator Fund. This conclusion is further
substantiated by the language which immediately follows the
proviso, which directs that: "This sum shall remain available for
payments to those who may at any time in the future establish
their ownership or right as herein provided to any deposit or
-529-
Honorable Jesse James, Page 4 (C-107)
account delivered to the State Treasurer under this Act," In our
opinion, this language constitutes a positive expression by the
Legislature that the sum of $250,000 is to be specifically used
for the purpose of paying claims.
Therefore, in answer to your first question, you are
advised thst the ~proviso Inquired about does not\mean that no
payments of claims should be made from the State Conservator Fund
which would reduce the balance on hand below $250 000 but ~to the
contrary, such sum was specifically set aside by ~khe fieglsiature
as a source for the payment of claims properly payable under
Section 6 of Article 3272b.
Since we have concluded that the Legislature intended that
the $250 000 be used as a source for regular payment of claims
rather than a reserve account, It becomes unnecessary to an'swer
your second question.
Turning now to your third question, we find that the intent
of the Legislature with respect to whether dormant accounts and
deposits placed into the State Conservator Fund are to be held
for any specific period of time prior to their.transfer to the
Available School Fund is not readily discernable from the language
used. While there is no suzh time period stated in the statute,
yet, the use of the phrase and thereafter any amounts
remaining unpaid to owners skil'be transferred to the Available
School Fund; . . ." lends credence to the argument that the
Legislature intended that there be a definite period of time
between the receipt of the accounts and their transfer to the
Available School Fund during wN& all money received Is to be
held available for payment to the owner. In the face'of this
ambiguity we must turn to the rules of statutory constructionfor
an aid In determining the Intent of the Legislature. As we have
stated above, the history of a particular statute while before
the Legislature may be resorted to as an aid to the determination
of legislative Intent.
Article 327213was'placed before the Third Called Session
of the 57th Legislature as House Bill Number 1 and was laidbefore
the House of Representatives on'second reading on January 8, 1962;
The first paragraph of Section 5, as printed.ln-the House Journal,
Fifty-Seventh Legislature, Third Called Session, January 8, 1962,
at page 34, reads as follows:
"Sec. 5. Conservator Fund.
"All funds received by the State Treasurer
under the'provisions of this Act OP from the escheat
of any deposit, credit, account or other property
-530-
Honorable Jesse James, Page 5 (c-107),
held by any bank or other institution covered by
Section l(a) hereof shall be deposited into a
separate fund to be known as the 'State Conservator
Fund,' in,which they shall be'retained for a period
of five (5) years after receipt, and thereafter any
amounts remaining unpaid to owners shall be trans-
ferred to the General Fund; provided that the State
Conservator Fund shall never be reduced below One
Quarter of One Million Dollars. This sum shall
remain available for payments to those who may at.
any time in the future establish their ownership or
right as herein provided to any deposit or account
delivered to the State Treasurer under this Act.
The mone 8 In such fund over Fifty Thousand Dollars
($50 000s shall be Invested from time to time by the
ordegs of the State Ranking Board in investments
which are approved by law for the Investment of any
State funds, and the Income thereof shall be and
become a part of said Conservator Fund."
House Bill No. 1 was passed by the House of Representatives
on third reading on January 9 1962 and, as evidenced by the
House Journal of that date, although several amendments were made,
Section 5 as quoted above was not changed. The Bill was then
sent to the Senate where it was referred to the Committee on
Banking.
Although House Bill No. 1 as reported out by the Senate
Committee on Banklng'and as flnaily passed by the Senate was not
ordered printed in the Senate Journal we are able to determine
from the House Journal that House Blli No. 1 as changed by the
Senate was passed by the House of Representatives without change.
Having thus traced the language of Section 5 of Article
327215,we now know that the portion of Section 5 which provided
that funds received under Article 3272b be held In the State
Conservator Fund for a period of five years before being trans-
ferred was deliberately eliminated by the Senate and that the,
House of Representatives concurred in such action.
Considering the omission and the fact that no other period
of time was substituted, we hold that the Legislature thereby
intended that all'dormant deposits and accounts placed in the State
Conservator Fund pursu.antto Article 3272b, with the exception of
the funds to be deposited to the revolving expense fund and the
$250 000 fund for refmbursement'of owners be transferred to the
Avaliable School Fund as soon after rece& as would be reasonable
within the practical limits of accounting and bookkeeping procedures.
Having thus determfned the intent of the Legislature with
regard to the lapse of time between receipt of such fund and their
-531-
Honorable Jesse James, Page 6 (C-107)
subsequent transfer, such Intent must prevail over the precise
language or literal meanf;ngof the words used and any implication
arising from the phrase and thereafter any amounts remain-
ing unpaid to owners shali be-transferred to the Available School
Fund D . ." that such transfer should be dependent upon the lapse
of other than a reasonable time must be~rejected~as leading away
fromthe.true Intent of the Legislature. 'State v;'Deleadehier
7 Tex.'76 (1851);'Forshey~v. Galveston; H.&-R
(1856);~Edwards v. Morton 92 Tex. 152 4 S 'w'~7;;'(18g8:;*
Weber v. Rogan, 94 Tex. 63, 54 S.W. 10i6 (1196Oj.
In conformity with the foregoing conclusions, we answer
your third question by stating that there is no specified period
of time for which funds are to be held In the State Conservator
Fund before being transferred to the Available School Fund and
with the exception of such sum as is required to be deposited 40
the revolving expense fund and within $25O,OOO limitation upon
the balance to be retained in the State Conservator Fund such
transfer of funds is to be made as soon after they are r&eived
as is reasonable, within the limits of accounting and bookkeeping
procedures.
SUMMARY
The proviso of Section 5 of Article 3272b that the
State Conservator Fund shall never be reduced below
$250,000 is a limitation upon transfers to be made
to the Available School Fund and does not restrict
the regular payment of claims of owners from the
State Conservator Fund. Dormant deposits and accounts
placed In the State Conservator Fund under Article
3272b are not required to be held for any specific
time prior to transfer to the Available School Fund,
and such transfer should be made as soon after the
funds are recefved as 'Is'reasonablewithin the limits
of accounting and bookkeeping procedures.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
WOS :ca
-532-
c -
Honorable Jesse James, Page 7 (c-107)
APPROVED:
OPINION COMMITTEE
W, V. Geppert, Chairman
Malcolm Quick
Gordon Appleman
Ernest Fortenberry
Paul Robertson
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
-533-