                                                                                            m
                                                                                           t’-

             OFFICE   OF,THE       ATTORNEY        GENERAL         OF     TEXAS

                                           AUSTIN


                                                                          April 11, 1939


Hoaorable Qeo. R. Sheppard
Comptroller of Publlo AOoOUBts
hstin, Texas
                                                                      \

Dear Sir:
                        ()p;nion     No,    0-44   v--    ‘~-~~__ ~- -..~.~A
                        He: Yay the Comptrollar*~'Cepartment
                            correct an or-r in bookkeeping
                            whereby oertain noneya were BI-
                            mnaously-plaosd in the General/
                            Revenue.~~Fuadinstead of into the
                            8U8pt3nSe iitmd? ,   i
          :?e are pleased to co&y  &lx                   yo:r request of April 3
for en opinion ;.%ichreada ~8 fol&oM:
                "18 this dap~x-tnrrntautborieed to oorrsct
          an arror in bookkeeping irhora,~ronays are Qlaaed
          in the General i%avenu~that should have been
          plaoed in thaMepenea     Acaount? For example:
       . in making alloca+iona of ;aonaypaid bko the :.
          State-Treasury this dapavtment erroneously (by
          an error   in bookksepingf made the improper dis-
        ~'~trlbutitin, placing noney ,inthe General Revenue
       / Fand whea,tas a matter of law, it should hare
          been placed‘in the Luapsnso MCI.     Does this
       '. department haqo mthority to correct arch er-
        “mrv      It 80, X5 there any time Unit governing
          the oorreotion or such ecrorv
          Tho writer hns discussed the altuation which gave rise
to this question--ataome length with Ur. Cue irarrar,of your de-
partnent, From thib disousoion it appears that in the partiaular
instanos under consideration, certain taxes paid under the ahala
store tax aot, *wereerroneously deposited to the General Bevenue
Fund lastsad of to the SusQense mnd.   In this instanae deposit
warrznte have actually been issued in accordance with Article 4333,
Revised Statutes, as Ynended in 1931, t!ndthe money has been crad-
ited to the General i;evanuei-d on the books both of the Comptrol-
ler and the iitateTreasurer.

       . .
 ..
7                                                                                       3a
i.    I
                                                                                 ‘-‘-



          Honorable Gee. II.Sheppard, April 11, 1939, Page 2


                    Article VIII, Section 6 of the Constitution of Texas
          provides, in part:
                           "No money shall be drawn fmmthe   Treas-
                      ury but in pursuance of speaifio appropria-
                      tions made by law; * * v e
                      This provieioa has aonoistently been given a striot oon-
          StlTWtiOB   by the courts of this State.
                    In Rogers, et al. vs. Daniel Oil .tRoyalty Co., 110 5.71.
          (2d) 891, the Texas Supreme Court deolared that money deposited with
          the State Treasury in a suspense fund is not aonsidered a8 being in
          the State Treasury. At page 894 of that opinion Judge Critz said:
                            "Yhen we oome to consider the suspense
                      statute, we find that it certainly oompletely
                      and adequately affords the protesting toxpoyer
                      ,a complete and adequate remedy at law for the
                      principal amount of the tax paid under protest.
                      Under suah statute, when the money paid is ao-
                      aompanled by the statutory protest of the per-
                      aon paying, the offioinl reaeivlng the same
                      nust transmit it to the State Treasurer. In
                      such instances the treasuror does not plaoe the
                      money in the State Treasury, as suah, but plaoee
                      it in suspense. If-a suit is filed in a proper
                      aourt in Travis oounty -withinninety daya rrom
                      date of payment, the money remains in suspense
                      until the suit is finished, and then the money
                      is completely subjeot to the oourt's judgment.
                      Under the statute, einoe the monog does not go
                      into the treasury, as suoh, no additionallegis-
                      lative enaotment is neoeeaary to enable the
                      treasurer to do with it as dlreoted by the stat-
                      ute or the oourt.w
                    A qusetion very similar to the one here under considera-
          tion wa8 deolded by the Texas Supreme Court in the oase of ?&anion
          VE. Lookhart, 114 j.3'. (Zd) 210. Xe quote from that opinion:
                           "It 15 shozn that reopondent, acting on the
                      opinion rendered by the Attorney Cenernl, depos-
                      ited this money in the c;enera.l
                                                     revenue fund of
                      the state. ilespondenthas In no manner profited
                      by such action on his part. He in c;ood faith de-
                      posited such money in the general revenue fund,
                      which non requires thet it be appropriated by
                      the iaglslaturo in aooordanoe with the provle-
                      ions of section 6 of article 8 of the Constitu-
                      &ion. fieapondentdoes not now hnve In !11sposees-
             .        slon suoh funtie;iind,therefore, he la unable,
                                                        ,                               ..
      m   Lo'._
IIonorable Ceo. H. Sheppard, April 11, 1939, t?oSe 3



          without an Rot of the Legislature, to pny same
          to those entitled thereto. Having aomplled
          with the advioe of the Attorney General, in
          making suoh transfer of iunds, It :muld be both
          unjust and unfair to undertake by jrrit of man-
          damus to oompel the treasurer to pay this 5xount
          or money out of hi5 personal funds. It ~85 con-
          trary to law ior the funda to be de-sosited.in
          the general revenue fund. ne was done, but they
          have pesoed beyond the control 01' the Weusurer,
          end it la now imoosaible lor tho treasurer to
          pay to relator the amount of r‘un(isso deposited
          with him. + + ry

               *It is undl5puted that relator ha5 fully
          oomplied with the 1~ and 15 entitled to be
          phid the sum of money olnlmed by aim. It is
          not shown, however, that relntor cannot obtain
          the money due him by another complete slnd nde-
          quate remsdy. ?d?Iiloit iS tN8 that the mOn8y
          due relator ,288been plaO8d in the Ser&erzXlr8V8-
          nue f'und, the Lagislature has not refused to make
          a speoiPio appropriation to pey rolutor’s  demand
          therefor."

          ‘e 11x5 unable to drru a distinction between the abOV8
citnd case, .zberein the Xnte Treasurer improperly deposited Eoney
in the General revenue iuad on the miStak% advice of the Attorney
General md the instz.Elt0898 where the seme mistake acoNed by r8a-
BOGof a bookkeeping 8rrOr.

          Upon the authority of f&nion VS. Lookhart, Bupra, we re-
epeotfully advise you that the Comptroller~s D8partment may not
withdraw money from the general revenue mund and piece it in the
Buspenee fund in order to reotlfy a prorloue bookkeeping error,
or for any other reason, except upon apeoirlo dlreotlon by the
Legislature.
