OFFICE   OF THE ATTORNEY    GENERAL   OF TEXAS
                   AUSTIN
Honorable Claude A. Wllllame,~Page 2


          We are informed by letter from the State Treasurer
that separate book aooounts are maintained upon all of the
various funds administered by the State Treasurer, but the
funds themselves are oommlngled.
          After the various State depoeltoriea are seleoted
by reason of their having qualified under our ttatutet, Arti-
ale 2632, Vernon's Revised Clvll Statutes, provides h&v the
funds may be deposited by the Treasurer. Artlolt 2532, supra,
mada ln part as follows:
          *After the dtpositorler have qualified aa
     provided in the preotdlng ortiolte, it ahall
     be the duty of the Treasurer to depoalt the
     funds belonging to the State In suah dtpoal-
     tories, an far as praotioal on a fair peroant-
     age basis, and shall at all timea keep euoh
     funds equitably jxorated in proportion to the
     amount whioh taoh la entitled to rsoeive by
     drawing warrants alternately thereon, or by
     apportioning the warrants 80 drawn."
           The offloe of the Trtaturer now handles all of tit
funda plaotd in its hand6 In the name manner, inoluding the
Gtnrral  Fund, the various apeoial fund6 and the trust funds,
rush ae eaoheat funda and unemployment ooapentation funds. J
The office of the Trtaaurer has cainted out to us that should
that offloe be required to maintain rpparate bm      aooounte for
the Various fund@, that whop nbank cenda in a group of warrants
to the FrtasUWr    for  payme+ and theat warrmtt ware drawn on
mare than one fund,    tht Stats Treaturtr would be required to
draw at many drafts in payatnt of the warrant am there were
funds agalnmt rhleh the rarrantr were lrsue&
          Subrequent to the tnaetmant of the State depository
laws mentioned above, the 44th Legislature enaottd the Ttxar
Unemployment Compensation Aot , whioh bar been amended by the
46th and 40th Seesions of tho Ltgialature. The 47th Leglela-
turt amended Beotion 9 of the lot in some reaptots, but rt-
enaottd the rtatute ortaflng thla fund ar found in 8. B. 4O@.
ArtloLa 5931-b. Vernon(a Rerl8td 01~11 Statutst, Beotlon 7,
nor reads in part-i?tbfollowmt
Honorable Claude A. WIlliamis,   Page 3


           asto.    9. (a) E&ablIshment and oontrol:
     There Is hereby emtablltahed~aea swnd,
     separate and apart from all pub110 monies or
     funds of thin rtate an Unemployment CompensatLon
     Fund, whioh ahall be administered by the oommlt-
     slon txolutlvtly    for the purpoetr of this aot
     . . .
            WStotIon (b) Aooountr and deposltrr The
     State Treaaurtr ahall be treaaurtr and tiuatodlan
     of the fund, who 8hall admlnlettr euoh fund In
     aooordanoe with the dlrtotiont of the oonuuleelon
              The Treasurer rhall maintain wlthin~tht
     &d'thrtt     ttparate aooounta: (1) a oltarlng ao-
     oount, (2) an unemployment trust fund aooount,
     and (3) a benefit aooount. All monies payable to
     the fund, upon reotlpt thereof by the commission,
     ehall be forwardrd to the Treasurer, who &all lm-
     mediately deposit them in the olearlng aooount
             after olearmoe thereof, all other monies
     in-tie oltarlng bdount ahall be Immediately de-    l

     posited with the Seoretary of the Treasury of the
     United State8 of Amtrloa to the oredit of the ao-
     oowt of this State In the Unemployment Trust Fund
    ,.-. . monies In the oltaring and benefit6 ao-
     oounts may be depoalted by the Treaaurtr, under
     the dlTtotIan of the oommlselon, In any bank or
     pub110 depoaItory,in whIoh general fund8 of the
     state may be depomlttd. . . . The fitattTrgaa-
     urer &all be lirble, on his of flolal bond, for
     the faithful ptrformanoe   of his duties In oonnee-
     tlon with the Unemployment Compensation Fund pro-
     vided under this Aot.    Suoh llablllty on the of-
     flolal bond ah&l1 be eff’eotlveImmediately upon
     the enaotmtnt of thie provlalon, and such llabll-
     Ity shall exist In addition to the liability of
     any separate bond existent on the efftotlve date
     of thle provielon, or whloh may be given In the
     future .   All ~*UIOreoovertd for lorate euetalned
     by the fund ehallbe depoelfed therein.*
          These ttatuttt havlrq been enacted after the enaot-
ment of the Btatc depprltory laws Rnd In view of the express
language of the leglalaturt that the unemployment fund be
gstabllnhed ae a speolal fund, separate and apart from all
.




    Honorable Claude A. Williams, Page 4


    public monies or funds of thle State that 1s in itself suffl-
    oient evidenoe of the Intention of the legislature that the'
    Treasurer of this State Is authorized to handle these funds
    a8 dlreoted by the oommleslon and not In aocordanot with the
    general laws of the State upon the deposit of State funds.
              After the Informal meeting attended by representa-
    tives of the Soolal Security  Board; representatives of the
    Texas Employment Comptnratlon Commlsslon, members of the
    Treasurer'8 offloe and a member of the Attorney C+eneral's
    offloe, the Supreme Court of Texas deoided and rendered Its
    opinion In the oate of Friedman v. Amerloan Surety Company
    of N&w York, 161 S. W. (2d) 670. At page 580 of this opln-
    Ion the court said:
              *The money hart Involved Is not the property
         of ths state In any oapaolty, but Is a trust fund
         to be held out of the State Treasury, but In the
         hands of the State Treasurer as Trustee, for the
         benefit of a olaes of employees whose employers
         pay It In by virtue of a tax levied, the tax being
         In the nature of an exolse tax."
              The Supreme Cowt thus raid that these funds were to
    be held out of the treatury.  It evidently understood fully the
    tffeot of that language for It also said that the Treasurer was
    only'tht Trustee of the monies.
              In the FrIedman oate the court followed Its opinion
    in the oaet of Manlon v. Lockhart, 114 S. W. (2d) 217. There
    the oourt held that the funds were trust fund6 to be held by
    the Treasurer as ourtodlan. The epeoiflo dtslgnatlon of the
    unemployment funds by the ltgitlature  and the admonition as to
    the tetablIehment of a separate fund to be held apart from all
    pub110 monies of this etate olearly differentiates these monies
    from the general and speolal funds of the state.
              The letter of Mr. llltohellattaohed to your request
    directs our attention to Section 303 (a) of the Soolal Seourlty
    Aot. We see no reason to consider the appllcatlon Of this
Honorable Claude A. Willlams,      Page 5


etatute for we have no Information that the Texas Unemploy-
ment Co~ptneatlon Commleslon has fAlled to comply with Ite
requirement.
          We notlot that Seotlon Q(b) ae enacted by the 47th
Regular Strzlon of the Lkglelature oontalns the ?ollow+ng
languaget
               'All moneys in this fund ehall be depoalt-
          td, admlnlztered and disbursed, In the same man-
          ner and under the ,eame oondltlons and requirements
          at la provided by Law for other sptolal fundr In
          the State Treaeury.*
           This language wae not In the Aot until thin aatndment
beaame effeotlve April 24, 1941. We do not believe that 'Itwae
the 'Intentionof the Leglelature  to alter the oharaoter of the
unemployment funds at thle time by thle language. On the ken-
trary, we believe that It wae Intended to advise the Treaeurtr
.to uze the zame zafeguarda In prottotlng these funds ae Ie used
with state funds. In view of the other language uetd In cat-
ting up this fund It dose not appear to uz that there waz an
Intention that the unemployment,monIee be oommlngled with epeolal
or general ?unds.o? the State.
          'Ae examination of the deolelon In the Friedman oaze
and of the pe*tlntnt statutee     Imprtssea upon UE the aonoluelon   \
thz> the State Trtaeurtr Ie authorized and dIreote$ to tztabllrh
   -bank                      aom       for unemployment oempWiha-    \
tlon fundr. We realize the extra burden this will plaeo      upon ~-_-j
the Txqtqr,     but It Is one IHpoeed by the Leglslaturo.
                                             Yours. vtrr   truly
APPROVED AU@ 16; 1941
                                        ATTORNEY GXNr;BALOF TEXAE
(Signed) Gerald C. Mann
ATTORNEY '3EiNEBAL
                 OT TEXAS               By   (Signed] Yorrle Hodges
                                                    Norris Hodges
MiIIreJ                                                  Aseletant
4)WOVED OPINION COYMITTEL
 By BWB Chairman

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