     OFFICE   OF THE   AmORNEY    GENERAL   OF TEXAS
                           AUSTIN




Honorable Tom C. Kj.ng
State Auditor and Efficiency Expert
Austin, Texas
Dear Sir:




          Your request for an
concerning the proper con
nonls Annotated Civil Sta                   ew it, contains
four separate and distinc
                                         e about is whether
                                        undetermined only in *
                                           go into is unknown,
map be paid int                           e problem arises more
specifioally 1                            o question but that
the State is e
                                    Annotated Civil Statutes,

                                 shall receive daily
                               partment, each of whom
                               with the duty of making
                              list of all persons re-
                       e status of which is undeter-
                       s awaiting the time when it can
                        into the Treasur#,  together
                   al remittanc.es  which the Treasurer .
                  nd place in his.vaults or in legally
                  eposltory  banks, if the necessity
      arises. * * *n
          Iu Bonference Opinion No. 3048, this department
ruled that the above quoted Article allowed the payment of any
money into the Suspense Fund which la awaltlng the tine that
Honorable Tom C. sing, Page 2


the sane can finally be paid into the Treasury. It is the
opinion of this department that until the specific fund to
which the money 1s properly belonging can be determined that
the same cannot finally 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 suoh a situation.
          Article 4364, Vernon's Annotated Civil Statutes,
reads, in part, as follows:
          WAccounts shall be kept for funds, a sep-
     arate account for each fund, which shall be
     credited with deposit warrants and charged
     with pay warrants issued: Balances of such
     accounts shall represent balances in the funds
     after taking into conslderatlon all warrants
     issued. Accounts shall also be kept showing
     the bonds or securities owned by each fund.
                n* * *

               "SUSPENSF,LEDGER.- A suspense ledger shall
     be kept in which the accounts of the State
     Treasurer shall be stated in respect to moneys
     held by him pending the issuance of deposit
    ‘warrants and moneys and securities held other
     than those for State purposes, for all which’
     the Comptroller shall issue deposlt receipts,
     posting the same to this ledger. It shall
     also include the accounts with heads of de-
     partments for all moneys received by them and
     deposited with the State Treasurer In suspense.n
          Article 4381, Vernon's Annotated Clvll Statutes,
reads','lnpart, as follows:
          "The State Trearurer shall cause the dally
     totals of deposit warrents to be posted to the
     proper fund and control accounts in the general
     ledger; The Treasurer  shall keep a 'transit
     record,' in which he shall record the essential
Honorable Tom C. King, Page 3


     details of all cash, checks, money orders,
     draft6 or other items deposited or cashed
     eaoh day, showing the items deposited in
     each depository bank or otherwise disposed
     of.  The totals of deposits shall be charged
     to the aocounts of the respective depositories
     on the books of the Treasury * * **
          The reading of the above quoted Article clearly
indicates that the procedure for flncl payment lntoS;t; fiat6
Treasury Is by the issuance of a deposit warrant.
posit warrant 1s lssued.to the partlcplar fund to which the
money goes. It 1s true,  then, that until the fund to which the
money should go Is determined the deposit warrant.to that fund
cannot be issued for suoh money. For this reason, it is our
opinion that in a case where money is paid to one of the depart-
ments of the State, and there 1s a question as to which partlc-
ular fund said money should go, the same may properly be paid
into the Suspense Fund because said money cannot be placed into
the proper fund until a deposit warrant for such money is drawn.
Only then is the money paid into the Treasury. While the partlc-
ular destination of the fund Is ln..questlon,even though there
is no question as to the State's right to the money, we feel that
the money comes within the catagory of "money which is awaiting
the time when it oan finally be taken into the Treasury" as set
out in Article 4388. YOU are, therefore, advised that in cases
where there is an actual doubt as to the particular fund to which
a money should go said money may properly be placed ln.the Sus-
pense Fund by the head of a department.
          Your second problem deals with which public official
has the power*to determine which money shall be placed in the
Suspense Account. You are advised that Article 4388 provides
that the head of each department shall make a report containing
a detailed list of an persons remitting money the status  of
which is undetermined or whloh is awaiting the time when it can
finally be taken into the Treasury. The statute  further speo-
lflcally provides that the head of each department is speolflcal-
ly charged with the duty of making such a*llst dally. It la
the opinion of this department, therefore, that the head of each
department has the power to place money into the Suspense Ac-
count when the same 1s awaiting the time when it can finally
be taken into the Treasury. Record of such payment 1s of course
made by the Comptroller in the suspense ledger as provided in
the above quotation of Article 4Z64.
’




    Honorable Tom C. King, Page 4


              Your third problem deals with a situation where it 1s
    determined that part of the money should be returned to a tax-
    payer and the other part 1s to be kept bg the State. However,
    the money which belongs to the State 1s money which la awalt-
    lng the time when it can finally be taken into the Treasury.
    You ask whether the part that 1s to be returned to the taxpayer
    map be so returned prior to the time the rest of the money Is
    paid into the State Treasury by the issuance of a deposlt’war-
    rant. You are advised that in such a case the status of the
    money whloh is to be returned to the taxpayer 1s definitely
    determined and the same may be returned to him. As to the
    money which la oomlng to the State, the same may be properly
    kept in the Suspense Fund until it can finally be taken lnto
    the Treasury. It is the opinion of this department, therefore,’
    that in such a case as outlined, the money which is to be re-
    turned to the taxpayer may be so returned prior to the time the
    remainder of the money which cannot be finally taken into the
    Treasury is taken out of the Suspense Fund.
              Your iourth question Is whether a speclflo payment
    placed in the Suspense Fund must be separately earmarked and
    kept as a separate aocount therein. The procedure ror the pay-
    ment of money into the Suspense Fund is outlined in Article
    4388. The money is paid into the Suspense Fund and a deposit
    reoelpt is issued by the Comptroller for the dally total of.
    such remittances from each department. Article 4364, supra,
    provides that tfieComptroller shall keep an account ln.the
    suspense ledger of the moneys held by him pending the issuance
    of deposit warrants. You are advised that when the paJrm$nts
    are made into the Suspense Fund as a matter of accounting the
    same should be kept separately. The purpose of the Suspense
    Statutes 1s to provide a method whereby money may be paid to
    the State which will not be paid into the State Treasury until
    it is finally determined tb whom the money belongs, pr until a
    time when the same may be finally paid into the State Treasury.
    The Suspense Fund servea a6 a sort of a depository. If money is
    pald into the Suspense Accounty by a taxpayer and the same 1s
    erroneously placed ln the general fund, payment could not be
    made to him from the Suspense Fund. To do so would be to pay
    him money which someone else had placed in eald fund or money
    which had not as yet been placed in the State Treasury. This
    department so ruled In~Oplnlon No. O-44, a 00~7 ot which is
    hereby attached, You are, therefore, advised that a separate
    account should be kept of each pagment placed in the Suspense
    Fund by the Comptroller.
Honorable Toa C. King, Page 5


            Ne truet that the above discussion of Artlole 4380
  will satlsfaotorily answer your inquiry.
                                         Your6 very truly



                                                          2f ’r ’I
                                                  Billie Goldberg
                                          -I            Aesistant




   BG:RS

                AFFROVE72J~ 15, 1940
