                 E   ,kTTORNEY         GENERAL

                         OF   %%CXAS




Honorable Ned Price, Chairman
Industrial Accident Board
Walton Building
Austin, Texas
                                 Opinion No. WW-623
                                 Re:    Does the Industrial
                                        Accident Board have
                                        the authority to pay
                                        necessary court costs
                                        in defense of the
                                        Second Injury Fund
                                        created by Sec. 120-2,
                                        Article 8306, Vernon's
                                        Revised Civil Statutes,
                                        and may the Comptroller
                                        Issue warrants for the
Dear Judge Price:                       payment of such costs?
       We have received your letter of April 22, 1959,
in which you request our opinion on the following ques-
tion:
            "Does the Industrial Accident Board
       have the authority to pay necessary court
       costs in defense of the Seoond Injury
       Fund created by Section 120-2, Article
       8306, Vernon's R.C.S., and may the Comp-
       tro!.l.er
               issue warrants for payment of such
       costs?”

       Section 120-2(a), Article 8306, Vernon's Civil
Statutes, providing for the Second Injury F'und,reads
as follows:
            "In every case of the death of an
       employee under this Act where there Is
       no person entitled to compensation sur-
       viving said employee, the association
       shall pay to the Industrial Accident
       Board the sum of Three Thousand Dollars,
       ($zkOC$),k; be deposited with the Treas-
                   State for the benefit of said
Honorable Ned Price, ChaIRnan, page 2 (~~-623)


       Fund and the Board shall direct the
       dlstrlbutlon thereof." (Dnphasls
       added)
       Attorney General's Opinion ~-1261 to Honorable
Sea. Ii.Sheppard, Comptroller of Public Accounts,
dated June 10, 1948, reads In part as follows:
            "The 'Second-Injury Fund' is
       clearly a trust fund and should be
       deposited in the Trust Section of
       the State Treasury. It may be dls-
       bursed without specific approprla-
       tion as it does not come within the
       constltutlonaI provision (Sea. 6,
       Art. 8, Const. of Texas) which pro-
       vides that Ino money shall be drawn
       from the Treasury but In pursuance
       of specific appropriations made by
       law; nor shall any appropriation of
       money be made for a longer term than
       two years."'
       Since the Second Injury Fund Is a trust fund for
the use and benefit of those employees entitled to com-
pensation therefrom, we are of the opinion that the
members of the Board must fulfill the function of the
Trustees of such fund In directing "the distribution
thereof" as well as defending the fund Itself from un-
warranted raids by Improper claimants.
       The Supreme Court of Texas, on June 28, 1950, In
Cause No. A-2642, entered judgment ln the case of Mlears
v. Industrial Acaident Board, 149 Tex. 270, 232 S.-d)
b71, and ordered th t the costs there Involved should be
paid from this fund?
            "It Is further ordered that the
       Petitioner, F. M. Miears, do have and
       recover of and from the Second Injury
       Fund administered by the Industrial
       Accident Board of the State of Texas
       all coats in this behalf expended in
       this Court and the Court of Civil
       Appeals and this decision be certified
       to the Mstriat Court for observance.*
Honorable Ned Price, Chairman, Page 3 (wW-623)


       In so doing, the court has established that payment
of court costs was a necessary incident to the trustees'
protection of the fund, and, therefore, was a proper use
of the funds there deposited. The Supreme Court has said
that court costs should be paid from this fund. To our
mind, the question has been resolved, and the question
is now settled law,
       You are advised that it Is the duty of the Indus-     '
trial Accident Board to pay court costs incurred In de-
fense of the Second Injury Fund from such fund, and is
the duty of the Comptroller to issue warrants in payment
thereof.
                          SUMMARY
             It is the duty of the Indus-
             trial Accident Board to pay
             court costs incurred In de-
             fense of the Second Injury
             Fund from such fund, and it
             is the duty of the Comptrol-
             ler to Issue warrants in
             payment thereof.
                              Yours very truly,
                              WILL WILSON




TIM:zt:rrr
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
L. P. Lollar
Leonard Passmore
Joe Allen Osborn
James Daniel McKeithan
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert
