                  THEATTORNEYGENERAL
                                  OF-XAS
                                 AUSTIN    ~~.TExae
 GROVERSELLERS
ATTOW-      GENERAL




     Honorable   Geo. H. Sheppard
     Comptroller    of Public Accounts
     Austin,   Texas

     Dear Mr. Sheppard :                           Opinion      No. O-5907

                                                    Re:      Whether or not the
                                                             Comptroller    of Public
                                                             Accounts    has any control
                                                             over the funds held in
                                                             the State Treasury      in .
                                                             trust   under Article    548,
                                                             Revised Civil    Statutes.

     You propound     for   our opinion   the   following:

     “Reference  is made to your Opinions   Nos. 0-5800,  O-5729, and
     O-5721. The question    has arisen  in this department and in the,’
     Treasury Department as to whether the Comptroller     has any control
     over the funds held in the Treasury    in trust  under Art. 540 of
     the Revised Civil  Statutes  of Texas.

     “If the Treasurer  in fact holds funds under Art. $40 in trust and
     which funds are not any part of the public    funds in the State
     Treasury  proper, then is this department   required to issue warrants
     on a claim for disbursement   of such funds?”

     You are respectully    advised   that in the opinion    of this department
     the Comptroller    of Public Accounts    is not required,   nor is he
     permitted,   to issue warrants    on a claim or claims for disbursement
     of trust funds heretofore      deposited  with the State Treasurer    in
     pursuance  of Article   5'40of the Revised Civil Statutes       of 1925.

     Article    540 of the Revised Civil       Statutes,   1925, with respect  to
     the final    settlement    of the affairs     of a state bank in ,voluntary
     dissolution,     declares:

     “The board of directors      shall    there,upon give notice     to all
     depositors,  creditors     and stockholders       of the adoption   of such
     resolution  by publication       thereof    once a week in a daily      or
     weekly newspaper for three months thereafter,             and by a written
     or printed  notice    personally     served upon or mailed to every
     depositor,  creditor    or stockholder       of such corporation    at his
     last known residence,      postage    fully   paid.   Within six months after
Honorable    Geo.   H. Sheppard         .page   2, O-5907


the filing      of such certificate,       the corporation       shall pay all
sums due depositors        and creditors     whom they can discover           and who
claim the moneys due them; and upon the expiration                   of said six
months,    it shall be the duty of the corporation               to make a
statement     from the books of said corporation,            certified      by the
president    and secretary,      of the names of all depositors             and
creditors    who have not claimed        or have not received          the balances
to their credit       or due them respectively,         and to file       the same
with the State Treasurer         and to pay the said State Treasurer                all
such unclaimed deposits,         moneys and credits       for the use and
benefit    of such depositors        and creditors.      The board of directors
shall then divide       the capital     stock,   guaranty and indemnity fund
and all other assets        or the proceeds      thereof    among the stock-
holders    ratably;    and the board of directors         shall    thereupon      file
in the office       of the Banking Commissioner         a certificate        surrender-
ing the corporate       franchise.”

The Article  has been repealed   by the enactment of the Texas Bank-
ing Code of 1933, in Article    15 of Chapter VIII,     as pointed   out
by this department   in Opinion No. 0-5729,    addressed    to Honorable
Jesse James, State Treasurer,    in the following    words:

“All unclaimed dividends        and all funds hereafter       available    for
non-claiming     depositors    and creditors,     together   with all funds
held pursuant to the provisions          of Article    540 of the Revised
Civil   Statutes   of Texas,    (which latter     funds shall     be transmitted
by the State Treasurer        to the Commissioner,      together    with a list
of the depositors       and creditors    for whose benefit       the same is
held),   shall be deposited       by the Commissioner      in one or more
State banks for the benefit          of the depositors     and creditors     en-
titled   thereto.”

Moneys thus deposited     with the State Treasurer     under Article  5’40
have never at any time been covered        into the State Treasury,
They have never been State funds.        They have always been held in
trust by the State Treasurer       “for the use and benefit   of such
depositors  and creditors    ” for whom the deposits    were made by the
liquidating  bank.

In our opinion      to   the State    Treasurer    we specifically       advised:

“1.  All of the funds mentioned            by you should      be transmitted        to
the State Banking Commissioner.

“2.   There should accompany this transmission            la list   of the
depositors   and creditors    for whose benefit        the same is held’,
and this list   should of course       include    the respective    amounts
due to such depositors      and creditors,       and likewise    the bank
making the deposit.      The treasurer      should not transmit      to the
Commissioner   the records,     ledgers,    lists   and correspondence
pertaining   to same, since they constitute          a part of the per-
Honorable   Geo.   H. Sheppard        page   3,   O-5907



manent archives  of his office.   Those lists   transmitted to the
Banking Commissioner   should be certified   under the hand and
seal of the State Treasurer.

“3.   The transmission       by the State Treasurer      to the Banking
Cornmissiorer    of the lists    mentioned     in Answer 1 relieves   him of
all future    responsibility     and liability     in regard to the trust
previously    being administered      by him.”

Since such deposits      have never been in the Treasuryof             the State,
it is not required,       nor is it proper,     for the Comptroller        of
Public Accounts    to issue warrants       to the State Treasurer         to pay
them out of any funds in the Treasury.             The holding     of the
Treasurer   of such funds is,       as we have seen, on an express          trust
for private   individuals,     and such funds,       therefore,    should be
disbursed   by the trustee--the       State Treasurer       -- by paying the
same to the proper beneficiaries,           or their    order,  either    upon
demand or after     judicial    determination     of the claim or claims
of such persons.

The State Banking Code above quoted specifically     transfers the
trust  to the State Banking Commissioner,   upon precisely
the same trust as that in which it was held by the State Treasurer.

The status    of such a fund is very closely          akin to, if not identical
with,   the Suspense Fund Account         under Article   4364, Vernon’s
Annotated    Civil   Statutes,    with respect    to which this departmentiin
Op’Enion No. O-945, addressed          to Honorable   Tom C. King, State
Auditor    and Efficiency      Expert,   advised:

“In Conference     Opinion No. 3048, this department           ruled that the
above-quoted    Article     allowed    the payment of any money into the
Suspense Fund which is awaiting           the time that the same can
finally   be paid into the Treasury.          It is the opinion     of this
deoartment    that unhil the soecified         fund to which the money is
properly   belonging     can be determined       that the same cannot fimlly
be taken into the Treasury.            In such a case such money could be
paid into the Suspense Fund even though there was no question
about the State’s       right to keep said money.         Our conclusion,    in
this respect,     is based upon an analysis          of the statutes   which
outline   the authority       of the Comptroller      of Public Accounts    and
of the State Treasurer          in such a situation.”      (Emphasis supplied)

Trusting    thht   what we have    said   sufficiently      answers   your   inquiry,
we are
                                          Very    truly    yours

APPROVEDMar 8, 1944                 ATTORNEYGENERALOF TEXAS                  Approved
Geo. P. Blackburn                                                            Opinion
Acting At torttey                                                            Committee
TTeneral of *xas                    BY              Ocie Speer               BY B’JJB,
                                                    Assistant                Chairman
