Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OP'hCXAS
The Honorable Hugh C. Yantis, Jr. Opinion No. H-833
Executive Director
Texas Water Quality Board Re: Whether boat certi-
1700 North Congress Avenue fication fees erroneously
Austin, Texas 78701 collected by the Water
Quality Board can be
refunded.
Dear Mr. Yantie:
In Attorney General Opinion H-716 (1975) this office
advised you that a provision in the general appropriations
act specifies that any money deposited into the State Treasury
which is "subject to refund as provided by law" is appropriated
for that purpose. We said the provision would apply to boat
certification fee refunds "necessary to reimburse persons
entitled by general law to refunds of money placed in,the
special [boat certification feel fund." See Acts 1975, 64th
Lig., ch. 743 at 2417; Water Code 9 21.09m).
You have now asked if the money in the boat certifica-
tion fee fund is "subject to refund as provided by law" in
four specific situations:
1. In the instance in which a local govern-
mental entity is the designated certifying
authority, an applicant already certified
by that entity mistakenly applied for and
remitted fees for certification by this
office.
2. Persons have sent in applications for
certification when they operate boats in
salt water only. The law and this Board's
regulations apply only to boats operating on
inland freshwaters.
p. 3515
.
The Honorable Hugh C. Yantis, Jr. - page 2 (H-833)
3. Persons have applied for certification
when their boats have no permanent sleeping
facilities and no marine sanitation device,
in which case there is no need for certification.
4. Persons have submitted payment in excess of
the amount required for certification.
In the first three cases, certification may not be properly
given, and in all four cases, the fees were accepted and
deposited before the error was discovered.
Section 21.097(c) of the Water Code, which governs the
collection of boat certification fees and the establishment
of the fund into which they are paid, does not itself expressly
authorize refunds for any reason, but in our opinion, refunds
can be made if authorized by common law. Cf. Attorney General
Opinion H-716 (1975). We think the appropztion act proviso
p rmitting refunds as provided by law is meant to square
w f th article 3, section '44of the Texas Constitution, which
prohibits the Legislature from granting "by appropriation,
or otherwise, any amount of money out of the Treasury of the
State, to any individual; on a claim, real or pretended, when
the same shall not have been provided for by pre-existing law."
In explaining the constitutional restriction, it is said
with ample support in 52 Tex. Jur.2d, State of Texas 6 40
at 750:
[T]he legislature may not appropriate
state money to any individual unless,
at the time the appropriation is made,
there is already in force some valid
law constituting the claim that the
appropriation is made to pay a legal
obligation of the state. By that
legal obligation is meant an obligation
such as would form the basis of a judgment
against the state in a court of competent
jurisdiction in the event the state should
permit itself to be sued. The term 'pre-
existing law' does not necessarily mean
p. 3516
The Honorable Hugh C. Yantis, Jr. - page 3 W-833)
pre-existing statutory law. . . . Hut it is held
that a moral obligation will not authorize
an appropriation by the legislature, even
where the state has received the benefits
of the unauthorized contracts of its
officers or of unauthorized taxes voluntarily
paid into the treasury.
We discussed in Attorney General Opinion H-548 (1975)
the rules applicable to the refund of taxes where no statute
applies:
(1) a person who voluntarily pays an
illegal tax has no claim for repayment:
(2) a person paying an illegal tax under
duress has a valid claim for repayment;
(3) duress in the payment of an illegal
tax may be either express or implied, and,a
legal duty to refund exists in both cases:
(4) a taxpayer need not take the risk of
incurring the threatened penalties or
punishments while the invalidity of the
tax is being litigated in order to
claim duress: and
(5) in the absence of a statute to the
contrary, it is immaterial to the taxpayer's
right of repayment whether or not the tax
was paid under protest.
These rules, laid down by the Texas Supreme Court in National
Biscuit Co. v. State, 135 S.W.Zd 687 (Tex. Sup. 1940), have
been appmdTotherefund of fees, as well as of taxes.
Crow v. City of Corpus Christi, 209 S.W.Zd 922 (Tex. Sup.
m)TAttornz Generalans M-1048 (19721, WW-834 (19601,
ww-749 (19591, O-6974 (1945). Cf. Attorney General Opinions
M-576 (19701, WW-364 (19581, WWx8 (19571, O-7113 (19461,
O-6282 (1945).
p. 3517
I .
The Honorable Hugh C. Yantis, Jr. - page 4 (H-833)
In the above-described fact situations, the money received
has already been paid into the state treasury. Under the
ational Biscuit Co. rules, the payments must be considered
voluntary and no=efundable~unless they were made under
duress, express or implied. The most,recent Supreme Court
case on the duress necessary to entitle a payor to a refund
is State v. Connecticut General Life Insurance &, 382
S.W=4r(Tex. Suo~.1964l.Smnvolved occuuation tax
overpayments. The Court held that the taxes there were paid
under duress because an act of the Commissioner of Insurance
caused or resulted in an overpayment'of taxes by the'insur-
ante organization, the payment of which was necessary to
avoid loss of the right of the insurance company to do
business in this state. See
--p also Crow,.:y.
City of Corpus
Christi, supra.
In the examples you have given all the payments were
apparently made not,onlyytb'secure certification, but to
avoid the legal penalties attached to noncompliance with
the certification law. You'advise that,boat owners received
mass mailings from your office which included an official
letter explaining the certification program, an application
form for certification, a list of,Water Quality Board district
offices, a copy of House Bill 1422,,enacting the certification
law, and a copy of Board Order No. 74-0.521-4,implementing
the law.
Boat owners were advised by the letter sent them that
persons failing to comply with the regulations contained
in the Order might be found guilty of a misdemeanor and,
upon conviction, fined from $25 to $200. It has been sug-
gested that the letters sent were confusing and ambiguous as
to the boats for which certification was required, the
particular certifications necessary, the governmental units
which would perform necessary inspections and make certifi-
cations, and the fee payments necessary to avoid the penal
provisions of the law.
The definition of "duress" as a legal concept -- the
question of what is necessary to legally constitute "duress" --
is a question of law. State v. Connecticut General Life
Insurance Co., supra. But whether or not a particulat
person in a particular transaction actually acted under
legal duress, express or implied, is a question of fact.
p. 3518
The ~HonorableHugh C. Yantis, Jr. - page 5 (H-833)
This office does not decide
._ .disputed
_ questions of fact
in the opinion process , but if the facts are as stated abOW
and if the payments or overpayments described in the four
examples you give actually resulted from a misapprehension
of fact or law induced by the Water Quality Board or from a
threat of penal prosecution upon failure to pay, then the
cited authorities indicate there is pre-existing law to
support refunds of boat certification fees improperly
collected in the manner described.
S UM~MARY
Improperly collected boat certification
fees may be refunded if payment of the
fees resulted from a misapprehension
of fact or law induced by the Water
Quality Board or from a threat of penal
prosecution upon a failure to pay.
APPROVED:
v Attorney General of Texas
Opinion Committee
jwb
p. 3519