Honorable Robert S. Calvert      :Opinlon No. WW-409
Comptroller of Publia Acaounts
Capitol Station                  Re:   Should the amount of
Austin, Texas                          earnest money forfeited
                                       on the sale of property
                                       by the Board of Control
                                       for the Highway Depart-
                                       ment be deposited and
                                       credited to the Qeneral
                                       Revenue Fund, or shoula
                                       it be deposited to the
Dear Mr: Calvert:                      State Highway Fund?
    s                                                   _:.
          You have requested an opinion of this offlae as to
whether ,theamount of earnest money forfeited on the sale .of
property by .the'Boardof Control for the Highway Department.
should be deposited to the General Revenue Fund or.to the
State Highway Fund.
          The property sold, and upon which sale the earnest
money was deposited, is a house acquired by the State Highway
Department in the purchase of a highway right-of-way. The
purchase of the right-of-way was made from the State Highway
Fund.
          The Board of Control is given certain authority of
sale and disposal of State personal property by the Salvage
and Surplus Act of 1957, which appears as Article 666 of Ver-
non's Annotated Texas Clvll Statutes. Section 4 (e) of Article
666 reads as follows:

          "The proceeds from the sale of any surplus
     property less the cost of advertising the sale
     shall be deposited to the credit of the item of
     appropriationto the agency for whom the sale
     was made. A'portion of the proceeds from the
     sale of any surplus property equal to the cost
     of advertising the sale~~shailbe deposited in
     the State Treasury to the credit of the item
     of appropriation to the State Boar$ of Controls -
     from which such cost was expended.   (Rrnpahslsours)
Honorable Robert S. Calvert, Page 2 (W-409)


          In our opinion the controlling term of Section 4
(e) is 'proceeds from the sale". That is to say, if the
earnest money, when forfeited, can be deemed "proceeds from
the sale" of the property, It must be credited to the High-
way Fund. Of course the Board of Control would be entitled
to a credit equal to the cost of advertising the sale.
           The.property was sold to the high~bidder upon the ..
opening of sealed bids. The conditionsof sale.called for a..
bid deposit in the amount of fifteen per cent (15%) of ~the :
bid-price.. This 15% bid deposit was to be forfeited Inthe.
event the thigh bidder failed to take the property. If It were
notfor .the~.sale.and the terms and conditions thereof concern-
,ingthe earnestmoney, the money in question would not have
accrued to the benefit of the State.
    .'   "
        : Thereforej.it Is our opinion that the 15s bid de-
       upon forfeiture, comes within the term "proaeeds from
posi.t,~
the salei'.of porperty as that term is used in Section.*.(e)
of Article 666. It is further our opinion, In answer to your
question,~that the earnest money forfeited on the sale of
property.by the Board of Control for theHighway Department
should be credited to the State Highway Fund after ~deducting
the cost of advertising the sale and crediting such sum to
the Board of Control.



      ,,.
                           SUMMARY


                  The earnest money forfeited
    .i.,          on the sale of property by
                  the Board of Control for then
                 ,Hlghway Department comes within
                  the term "proceeUs from then
                  sale" as used in Section 4 (e)
                  of Article 666 of Vernon"8 An-
                  notated~Texas Civil Statutes,.
                  then-efore','.this
                                  sum shouldbe


                                          ...
Honorable Robert S. Calvert, Page 3 (WW-409)


                    credited to the Sta,feHighway
                    Fund after crediting the cost
                    of advertising the sale to
                    the Board of Control.


                               WILL WILSON
                               Attorney General of Texas



                               BY W. 0. Shultz
                                  Assistant

WOS:pf:mg
APPROVED:
OPINION COMMITTBB
Geo. P. Blackburn, Chairman
Ralph R. Rash
Riley Eugene Fletcher
REVIEWED FOR THE ATTORNEY GENERAL
By:
      W. V. Geppert
