                                February   Il.   1974


The Honorable      Robert     S. Calvert                Opinion   No.   H-   224
Comptroller     of Public     Accounts
State ‘Finance Building                                 Re: Whether    taxes received   under
Austin,   Texas                                         Article 666-20d (Mixed    Beverage
                                                        Tax) are in the State Treasury     or
                                                        are held in trust for counties   and
                                                        cities.

Dear   Mr.   Calvert:

        You have requested    our opinion concerning     whether   taxes received   under
Article   666-20d (Mixed Beverage      Tax) are in the State Treasury      or are held
trust for counties and cities.    Section (b) of Article    666-20d Penal Auxiliary
Laws (Texas      Liquor Control Act) levys a ten percent      gross receipts   tax on
the sales and other transactions     of mixed beverage     permit,tees   and other
specified   licensees.

        Sect,ion (e)(l) provides    that the tax be paid to the Alcoholic   Beverage
Commission       and that “The Commission        shall deposit these receipts   in the
State Treasury      to the credit of a special clearance      fund to be known as the
Ivfixed Beverage       ‘I& Clearance    Fund. ”

       Section     (e)( 3) provides:

                             “As soon as possible       after receipt   of each
                 quarterl,y    report: of the Commission         the Compt:roller
                  shall issue to each county a warrant           drawn on the Mixed
                 Beverage      Tax Clearance     Fund in the amount of fifteen
                 percent    (15%) of receipts    from permittees      within the
                 county during the quarter,         and shall issue to each incor-
                 porated    city or town a warrant       dra\vn on that fund in
                 the amount of fifteen percent (15%) of receipts           from
                 permitteas      within the incorporated      city or town during
                 the quarter,      as shown by the Commission’s         report.
                 The remainder        of the receipts   for the quarter    shall be
                 transferred      to the General    Revenue Fund. ‘I



                                            p. 1045
The   Honorable     R,obert s.   Calvert.     page    2   (H-224)




          We believe     that these stat.utor,y provis,ions        manifest    a clear legislative
intent to assign the funds’ to a trust account to be distri~buted by the Comptroller
in accordance        with statut:ory dir:ec.tions and kthout           furt.her appropriations.
A “clearance        fund” in Lus,ine,ss tc;rms is an a.ccount used for th,e “adjustment
of debits and credits”         (Webster’  s      New World Dict:,ionary,
                                -_-,.---_-_,--_I__                             Library    and Office
Edition,     1973) ,which denotes the absence of ownership                 in the hol.der of the
account; moreover,           the directions        to th,e Comptroller    to first issue a warrant
 of fifteenperce,nr     to the c,ities and counties and then to transfer               the remainder
to t.he general      revenue fund, which o’bviously            implies   that the money was not
previously      in the genera.1 revenue fund, support our belief.                  However,      the
statute does place the funds “in the St:ate Treasur,y.                 ” and ordinarily      this
requires     furt.her appropriation.            See Attorney    General     Opinions    H-138 (1973).
H-154 (1973).

       Your second question,     concerning           the effect of $ 26, Article    V,    of
House Bill 139 (the Appropr,iati,ms     Act,          1973) resolves  the situation.       Section
26 provides:

               “REFONLIS     0% .DE.PGSI’I’S.  Any money deposited
               knto the State Treasury    which is subject to refund as
               provided  by law shall Lt refunded from the fund
               into which such moneys was deposited,      and so much
               as is necessary   for said refunds ,is ‘here’by appro-
               priated. ”

         Although these funds are i:n the State Trea,sury,   the cit.ies and counties
where the tax originated    are owners t,o the extent of fifteen percent    and are
ent,itled to ha,ve such amour&s refunded.      We ho1.d that 5 26 accomplishes    this
and that the monies are appropriated      by this provision.

                                             SU:tiMARY
                                            -_---

                           F ii’teen perc.ent of the Mixed Drink Beverage
               C?eara.nce    Fund estn’blisilrd     ‘LyeArtic1.e 666-20d (Texas
               Liquor     Control Act:) is owned by ci,ttirs and counties
               where the tax originated         a,nd t:he, Compt,roller shou1.d




                                            p. 1046
The   Honorable   Robert   S. Calvert,    page   3 (H-2.24)




              refund such amounts to the cities and counties               under
              5 26, Article V, of H. B. 139 (the Appropriations
              Act, 1973).


                                                         Yours      very   truly,




                                                         Attorney      General      of Texas




Opinion   Committee




                                         p. 1047
