            THE     AITORNEY                 GENERAL
                         OF   TEXAS

                     A~wrm,   -A#3          r&711

                    October 11,   1968

Honorable Jesse James                 Opinion No. M-288
State Treasurer
Box X, Capitol Station                Re:     Payment of certain claims
Austin, Texas 78711                           by the State Treasurer
                                              against deposits made with
                                              him as required by Chapter
                                              X, Texas Probate Code,
                                              being the residue of an
Dear Mr. James:                               estate for unknown heirs.
          Your request for an opinion read,sas follows:
          'On August 26, 1968, we received from Mr.
     Pete Urbani, Jr., Attorney representing the
     Estate OF Istvan Pista Meszaros, Deceased, a
     court order setting out $4,011.70 as the
     residue of this estate for unknown heirs to
     be paid to the State Treasurer as required by
     Chapter X, Probate Code. It was later found
     that the court order did not Include additional
     attorneys fees for $200.00 and $27.00 in court
     costs. The application to pay claims shows
     attorneys fees to be $400.00, corrected in ink and
     initialed by,the Judge of the Probate Court.
     We have now received a corrected court order
     stating that the amount to be paid to the State
     Treasurer in the original court order was in-
     correct and that $200.00 is to be paid to the
     attorney and $27.00 to the County Clerk, Galveston
     County.
         "We are enclosing photocopies of the in-
    struments we have received and request your
    written opinion as to whether the State Treas-
    urer may pay these two claims. We would appre-
    ciate your written opinion in this matter as
    soon as possible."
          ,According to the instruments submitted with your re-
quest, on August 23, 1968, the court ordered payment to the
State Treasurer, ursuant to Chapter X of the Texas Probate
Code, the sum of P4,011.70 in Cause No. 30,601 in the matter
of the Estate of Istvan Pista Meszaros, Deceased.
                            11aoo-
Hon. Jesse James,page 2(M-288)


          On September 23, 1968,         the court in said cause entered
the following order:
               "It being brought to the attention of this
     Court in Chambers, that prior to the closing of
     this Estate, the Court entered an Order for pay-
     ment of attorney's fees in the amount of FOUR
     HUNDRED AND NO/100 ($400.00) DOLLARS, and Court
     costs in the amount of TWENTY AND NG/lOO ($20.00)
     WLLARS, on the 21st day of August, A.D. 1968.
     Subsequent thereto an Order dated the 23rd day
     of August, A.D. 1968, was entered Ordering the
     pa ent of FOUR THOUSAND ELEVEN AND 77/100
     ($rOII.77)       DOLLARS to the STATE TREASURER,
     Austin, Texas;
          "And the Court being further informed that
     only TWO HUNDRED AND NO/100 ($200.00) DOLLARS
     was paid as attorney's fees and the Court costs
     was erroneous and that In fact the Court costs
     was FORTY-SEVEN AND NO/100 ($47.00) DOLLARS;
              "It is Therefore ORDERED and DECREED that
     the sum of FOUR THOUSAND ELEVEN AND 77/100
     ($&,011.77) DOLLARS paid to the STATE TREASURER
     was paid in error and that the sum of THREE
     THOUSAND SEVEN HUNDRED EIGHTY-FOUR AND 77/100
     ($3,784.77)     DOLLARS should have been paid to
     the STATE TREASURER; and
          "It is ORDERED that the following pay-
     ments should be made from the monies deposited
     in the 'STATETREASURER, Austin, Texas, as
     follows:
          "1)   Pete Urbani, Jr., Attorney at Law,           $200,00
          '2)   Gertrude McKenna, County Clerk of
                Galveston County, Texas,                        27.00”

          Section 427 of the Probate Code provides as
     follows:
          "When Estates to be Paid into State Treasury
          "If any person entitled to a portion of an
     estate, except a resident minor without a guardian,


                             -   1401-
.      .




    Hon. Jesse James, page 3   (M-288,)        ~~'


           shall not demand his portion from the executor or
           administrator within six months ,af'ter
                                                 an order of
           court approving the report of commissioners of
           partition, or within six months after the settlement
           of the final account of an executor oradministrator,
           as the case may be, the court by written order shall
           require the executor or administrator to pay so much
           of said portion as Is In money to the State Treasurer;
           and such portions as is in other property he shall
           order the executor or administrator to sell on ,such
           terms as the court thinks best, and, when the proceeds
           of such sale are collected,,the court shall order the
           same to be paid to the State Treasurer, in all such
           cases allowing the executor or,,administratorreasonable
           compensation for his services.
              The judgment dated September 23, 1968, reveals that
    the Court also corrected the record by entering a new judgment.
    Therefore, you are advised that you are authorized to nay the
    sum of $200.00 to Pete Urbanl, Jr., Attorney at Law,and the sum
    of $27.00 to Gertrude McKenna, County Clerk of Galveston County,
    Texas, in accordance with the judgment entered September 23,
    1968, In Cause No. 30601 provided that the money previously
    received has not been deposited in the State Treasury. If
    such money has been deposited in the State Treasury, you would
    not be authorized to withdraw such money from the Treasury
    until the legislature makes an appropriation for the reason
    that Section 6 of Article VIII of the Constitution of Texas
    provides that no money shall be drawn from the Treasury but in
    pursuance of specific appropriations made by law, Pickle v.
    Finley, 91 Tex. 484, 44 S.W. 480 (1898).

                           SUMMARY
                The State Treasury is authorized to pay out
           money in accordance with a corrected judgment
           in order to rectify a previous erroneous judgment
           provided monies received pursuant to the erroneous
           judgment have not been deposited In the State
           Treasury. If such monies have been deposited in
           the State Treasury, payment may not be made until
           the legislature makes an appropriation. Article
           8, Section 6, Constitution of Texas.

                                          s very truly,


                                             5 m
                                              C. MARTIN
                                          ney General of Texas
Hon. Jesse James, page 4 (M-288)


Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, chairman
Kerns Taylor, Co-Chairman
Louis G. Neumann
Ray McGregor
James McCoy
Wardlow Lane
A. J. CARUBBI, JR.
Executive Assistant




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