                THEA~ORNEY                    GENERAL

                             ~FTEXAS



A1TOxsNSY DkJxwsHAl.
                       November 30,    1959


   Mr. John C. White, Commissioner
   Texas Department of Agriculture
   Capitol Station
   Austin, Texas
                            Opinion No. WW-749
                             Re:   Whether the Texas Depart-
                                   ment of Agriculture may
                                   make refunds from the Spe-
                                   cial Department of Agrlcul-
                                   ture Fund under provisions
                                   of House Bill 4, 3rd Called
   Dear Mr. White:                 Session, 56th Legislature.
          The following is quoted from your recent letter:
                "With reference to H.B. 4, 3rd Called
          Session of the 56th Texas Legislature, we
          have requested and attached in rider form a
          paragraph enabling this Department to omit
          the use of the Suspense Fund by allowing
          refunds from the fund in which the revenue
          was deposited. This rider reads as follows:
                "'Any money deposited into the State
          Treasury by the Department of Agriculture
          either by mistake of fact, mistake of law,
          in event of overpayment by the remitter, or
          by any other reason which necessitates a re-
          fund shall be refunded by warrant issued
          against the fund in the State Treasury into
          which such money was deposited and so much
          for said refunds as is necessary is hereby
          appropriated.'
                "The Comptroller of Public Accounts
          has stated that they will not honor this
          rider as there is not basic authority on
          which to set up the appropriation. In ana-
          lyzing some of our orlgl~nalfunds, we find
          that there are definite authorities to issue
Mr. John C. White, page 2 (WW-749)


       refund warrants from the State Treasury
       and charge to the fund in which it was de-
       posited. This however does not cover all
       of the funds which we have accumulated in-
       to one basic operating fund known as the
       Special Department of Agriculture Fund.
             "In order to determine our legality
       in requesting and operating from such a
       rider, we request your opinion as to whether
       or not we may make such refunds from our            I!.
       special fund."
       While there is no apparent conflict between the
statute establishing the Departmental Suspense Account
and the above rider, you have indicated that the rider
was obtained in order to omit the 'useof the Suspense
Fund+ Hence, we observe that the Departmental Suspense
Account has been established by general legislation,
Article 4388, Vernon's Civil Statutes, which the above
rider is powerless to amend or repeal. A rider attached
to an appropriation bill cannot amend or repeal an exist-
ing general law. State v. Steele, 57 Tex. 200 (1882),
Linden v. Finley, 92 Tex. 451, 49 S.W. 578  1899 ; Moore
v. Sheppard, 144 Tex. 537, 192 S.W. 2d 559 I1946I; At-
torney General's Opinions V-412 (1947); V-1304 (1951).
       Article 4388,   Vernon's Civil Statutes   provides in
part as follows:
            "The State Treasurer shall receive
       daily from the head of each Department, each
       of whom is specifically charged with the duty
       of making same daily, a detailed list of all
       persons remitting money the status of which
       is undetermined or which is awaiting the time
       when it can finally be taken into the Treasury,
       together with the actual remittances which the
       Treasurer shall cash and place in his vaults or
       in legally authorized depository banks, if the
       necessity arises. . . . As soon as the status
       of money so placed with the Treasurer on a de-
       posit receipt is determined, it shall be trans-
       ferred from the suspense account by placing the
       portion of it belonging to the State in the
       Treasury by the issuance of a deposit warrant, and
       the part found not to belong to the State shall be
       refunded. . . .'
Mr. John C. White, page 3 (Wh-749)


       Therefore, moneys "the status of which is undeter-
mined or Which are awaitlng,,thetime when they can finally
be taken into the Treasury, must still be kept inthe'
Departmental Suspense Account regardless of the above
rider.
       Turning now to the question of pre-existing law,
Secticn 44 of Article III of the Texas Constitution pro-
hibits the Legislature from granting "any money out of
the Treasury of the State . . . on a claim . . . when the
same shall not have been provided for by pre-existing law."
       Article 4386c,   Vernon's Civil Statutes, provides in
part as follows:
             'Section 1. All moneys now on de-
       posit in the State Treasury to the credit
       of the Citrus Fruit Inspection Fund, the
       Pure Bred Cottonseed Inspection Fund, and
       2-4-D License Fund, the Herbicide Fund, the
       Texas Vegetable Certification Fund, the Seed
       Laboratory Fee Account, the Nursery Inspec-
       tion Fee Account, the Weights and Measures Fee
       Account, the Charter Filing Fee Account, the
       Anti-freeze Registration Fee Acco,unt,the
       Insecticide and Fungicide Fee Account, Fees
       for Milk and Cream Tester Licenses, the State
       Department of Agriculture Grain and Field Seed
       Warehouse Inspection Fund, and the Texas Seed
       Act Fund, together with all moneys owing or due
       said Funds and Fee Accounts, shall be trans-
       ferred, deposited, and consolidated into a
       single Fund, in the State Treasury to be known
       as the Special Department of dgriculture .Fund.
       As amended Acts 1955, 54th Leg., p. 539, ch.
       168, B 1.

             "Sec. 2.     All moneys collected or re-
       ceived by the Texas Department of Agriculture,
       after the effective date of this Act, from any
       source now requiring that such moneys be de-
       posited in the State Treasury to the credit of
       any of the Funds or Fee Accounts named in Sec-
       tion 1 of this Act, shall be deposited in the
       State Treasury to the credit of the Special
Mr. John C. White, page 4 (WW-749)


       Department of Agriculture Fund.
             "Setv 3.     The Special Department of
       Agriculture Fund shall be used for the aggre-
       gate purposes for which the Funds and Fee
       Accounts named in Section 1 are now directed
       by law to be used."
       Since Sect-ion3 of the above statute provides that
the Special Department of Agriculture Fund shall be used
for the aggregate purposes for which the Funds and Fee
Accounts named in Section 1 of the Act are now directed
by law to be used, the various statutes establishing such
funds are looked to first in order to determine whether
there is pre-existing law in support of the rider.
         The moneys paid into the funds in question are de-
rived from license and inspection fees. In none of the
statutes   establishing such funds do we find specific au-
thority for refunds. These statutes direct that the funds
be used in the administration and enforcement of the par-
ticular Acts establishing each such fund.
       However, Article 4836c, Vernon's Civil Statutes, au-
thorizes the funds transferred to the Special Department
of Pqriculture Fund to be 'used for the aggregate purposes
for wh-ich ;he Funds . . . are now directed by law to be
used." That Article does not say "directed by statute to
be used."
       The term 'pre-existing law" does not necessarily mean
pre-exleting statutory law: a common-law right is a right
under pre-existing law. Austin National Bank v. Sheppard,
123 Tex. 272, 71 s.w. 2d 242 (1934).

       It is the law of this State, founded upon common law
rights, that license fees and taxes paj.dto the State because
of (1) fraud or (2) mistake of fact or (3) duress may be re-
covered from the State, there being a legal and valid obli-
gation on the part of the State to pay such claims, although
the rule is to the contrary where such payments to the State
have been made due to a mrstake of law. Hoefling v. City of
San Antonio, 85 Tex. 228, 20 S.W. 85 (1882); N;ti;;a; Bis-
cuit Co. v. State, 134 Tex. 293, 135 S.W. 2d 68  ( 4 )
Austin National Bank v. Sheppard, supra; Ostrum v. Citi of
San Antonio, 71 S.W. 304 (Civ. App. 1902, error dism. w.o.j.1;
Mr. John C. White, page 5 (MA?-749)


32 Tex. Jur. 741, Payment, Sec. 55; Attorney General's
Opinions O-6974 (1945); O-6282 (1945);0-5739 (1944).
       From the foregoing it is apparent that the above
quoted portion of House Bill 4 is supported by pre-exist-
ing law to the extent that it makes an appropriation to
refund moneys paid Iundermistake of fact. It is equally
clear that the approgrjation is not supPorted by pre-
existing law and is therefore unconstitutional to the
extent that it attempts to appropriate for refunds of
moneys paid under mere 'm?'stakeof law" unaccompanied by
the other circumstances which would authorize a refund.
       Here we note that the "mistake of fact" which per-
mits a refund must be one on the part of the person who
made the init?al payment to the State rather than a mere
mistake on the part of the Department of Agriculture as
we find no pre-existing law making the State liable to its
agents for moneys paid to the agent by another and deposit-
ed in the State Treasury due to mistake on the part of the
agent only. The rider in questi'onis construed as refer-
r-ingto mistakes on the part of the initial payer.
       In Attcrney General's Opinion o-6974 this Depart-
ment was called upon to decide whether the following ap-
propriatlon was supported by pre-existing law:
             II. . . any money paid into the State
       Treasury by the Board of Hairdressers and
       Cosmetologists either by mistake of fact or
       mistake of law, shall be refunded by warrant
       issued against such fund in the State Treas-
       ury, and so much of said fund as is neces-
       sary is hereby appropriated for such purpose."
       The provision was treated as applying to refunds for
err:neous ,paymentsmade by those who paid fees to the Board
rather than rne13e
                 m;stakes on the part of the Board in deposit-
fng ?~tscollections into the State Treasury.
       Further, the opinion held that the appropriation was
supported by pre-existing law to the extent that it authoriz-
ed the issuance of warrants to pay claims for the refund of
moneys paid under fraud, mistake of fact or duress.
       In the present situation "overpayment of the remitter"
is also made a ground for refund. It is apparent from the
Mr. John C. White, page 6 (WW-749)


authorities already cited that an appropriation for
refunds due to mere "overpayment by the remitter" IS
not supported by pre-existing law. There must be more.
The overpayment would have to be caused by fraud,
mistake of fact or duress in order to be refunded by
the State. To the extent that it is so caused, the ap-
propriation for refunds for "overpayment" is consti-
t ut ional. To the extent that the "overpayment" is not
So caused, the provrsion is not supported by pre-exist-
ing law and is unconstitutional.
       The subject rider also purports to make an appro-
priation for refunds of moneys deposited into the State
Treasury,"by any other reason which necessitates a re-
fund". This phrase we construe as meaning any other
legal and valid ground for refund. As thus interpreted~
it is not in violation of Section 44, Article III of the
Texas Constitution. If an Act is fairly susceptible of
two constructions, one of which would render the Act
constitutional and the other of which would render it
unconstitutional, the former must prevail. 39 Tex. Jur.
207,   Statutes,   Sec.   111.


                          SUMMARY

            The portion of House Bill 4, Acts
            of the 56th Legislature, Third
            Called Session, 1959, which makes
            an appropriation for the refund
            of moneys deposited into the State
            Treasury "either by mistake of
            fact, mistake of law, in the event
            of overpayment by the remitter, or by
            any other reason wnich necessitates
            a refund cannot amend or repeal
            Article 4388, Vernon's Cj~vilStatutes,
            providing for the Departmental Sus-
            pense Acco~unt. Said provision of
            House B3.114 is supported by pre-
            existing law to the extent that it
            applies to refunds of money paid to
            the State due to fraud, mistake of
.   .   .




Mr. John C. White, page 7 (WW-749)


            fact or duress and is not support-
            ed by p-e-existing law to the extent
            that it attempts to do more.

                           Yours   very   truly,

                           WILL WILSON
                           Attorney General of Texas



                           ~YD~~s~
                              Assistant
HGB:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon C. Cass
Jot Hodges, Jr.
Charles D. Cabaniss
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
