Case Information
*1 R-288 HE A%TTOH?NEY GENERAL OIF TEXAS
PRICE DANIEL ATTCIRNEY GENERAL
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. 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, furnished, ,briefly summarized from the in- seem to be: format ion
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 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 There money In suspense awaiting further information. 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- as distinguished from a gift or donation. ligation, This would be the ordinary import of this language, and *2 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 ~OBG tiac 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, 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, 4388, V, Co 9., provides in part as follows: Artfcle
‘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 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 status of the money’ is whether it is State mon- to be refunded, as it should be if it ey or 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- -- that is: Bas SOOR as the status ticle, *3 . .
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- The Article is explicit in rt- aur4r. the stransfer’ to b made ‘as soon
quirlag aa’ which necessarily implies ‘not before t the ‘status of 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. this Independently of
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. any event, such Is its necessary mean-
ing where the Treasurer and Comptroller, each of whom must act to effectuate a trans- assume fer of the money, do not voluntarily rts onslbillty of making such determlna- F tioa. o compel their action a judicial pro- ceeding is essential, and this means a plen- ary and not a mere prooeedlng,” iattrlooutory
The Comptroller and State Treasurer, es- pecially after this long lapse of time, may now deter- sine that thla is State menty and transfer It from *4 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 it becams State money and circumstances, to be transferred as provided in Daniel v, Richcreek, 118 Art lcle 4386 o 3, W. (2d) 935.
Very truly yours, ATTORNEY OENERALOFTRXAS APPROVEI) APR. 15, 1947 %L Qtfii!d ATTORNEY OENERAL LPL:al ndr smrj