            THEAYTORNEY                GENERAL
                        OFTEXAS
                        AUSTIX   ta.T~xan




                                       January 30, 193~

Hon. Charley Lockhart
State Treasurer
Austin, Texas

Dear Sir:                 Opinion No. O-108
                          Re: Authority of State Treasurer to
                              transfer money from General Re-
                              venue Fund to Settlement of
                              Estates Fund.

Your letter of January 13, 1939, wherein you request the
opinion of th-is department on certain questions therein set
forth has been referred to the writer for attention.

In order that the basis for your questions might be fully
understood by all af,fected by this opinion, we sat forth the
pertinent parts of your letter, whioh are as follows:

    "Upon authority from the State Comptroller based upon
    opinion No. 2890, dated August 28, 1932, the State
    Treasurer transferred on August 30, 1932, all money in
    the Settlement of Estates Fund to the General Fund of
    the State of Texas. This money was deposited in the
    Settlement of Estates Fund in compliance with Articles
    Nos. 3644 to 3660 of the Revised Statutes of 1925  of
    the State of Texas+

    "Relying upon opinion No. 2890, dated August 28, 1932,
    the State Treasurer deposited all money in the General
    Fund which was paid to him as provided in Apttales 3644
    to 3660, from August 28, 1932, to March 16, 1938. Cn
    March 16, 1938, the Supreme Court ruled in Cause No.
    7355, Manion vs. Lockhart, State Treasurer, that
    Mandamus could not be issued to compel the Treasurer to
    pay out of the General Fund money paid to him under
    Provision of Articles 3644 to 3660, but the Court did say
    that such funds should not have been placed in the
    General Fund. The Court further ruled that the State
    Treasurer is liable personally for having placed such
    money Ln the General Fund instead of keeping it in trust.
    All such money which has been deposited with the State
    Treasurer since Marah 16, 1938, has been placed in the
    Settlement of Estates Fund by the State Treasurer and
    State Comptroller.
Hon. Charley Lockhart, January 30, 1939, page 2, O-108



     "In view of the facts herein stated, please answer the
     following questions:

         "(1) Do the Sta.te Treasurer and State Comptroller
         have authority to transfer baok to the Settlement of
         Estates Fund the money transferred to the General
         Revenue Fund on August 30, 19327

         “(2)  Do the State Treasurer and State Comptroller
         have authority to transfer to the Settlement of
         Estates Fund money deposited to the General Fund
         from August 30, 1932, to March 16, 1938, which should
         have been deposited in the Settlement of Estates Fund?

         "(3) Under Articles 3653 to 3655, do the State
         Treasurer and State Comptroller have authority to
         issue warrant8 on the Settlement of Estates Fund in
         payment of claims without appropriation by the
         Legislature?
     'IIt is understood  that any amounts heretofore appropri-
     ated by the Legislature from the General Fund for payment
     of claims against the money transferred to the General
     Fund on August 30, 1932, and deposited to the General Fund
     from AUgUSt  30, 1932, to March 16, 1938, are to be
     deducted from the amount to be transferred back to the
     Settlement of Estates Fund."

Judge Sharp of the Supreme Court-of Texas, in the case of
Manion vs. Lockhart, Sta.te Treasurer, 114 SW (2nd) 216,
diSCUSSing the condition8 set out in the foregoing request,
said of the State Treasurer:

    "He, in ood faith, deposited such money in the General
    Revenue 5 und, which now requires that it be appropriated
    by the Legislature in accordance with the provisions of
    Section 6 of Article 8 of the Constitution."

Section 6 of Article 8 of the Constitution reads as follows:
    "No 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, except by the first Legislature to assemble under
    this Constitution, which may make the necessary appro-
    priations to carry on the government under the assemblage
    of the sixteenth Legislature."

In substanbe, Judge Sharp held in-the abovementioned case that
the condition8 under which the Settlement of the Estates Fund
were transferred to the General Revenue Fund were immaterial
on the question of the strict applicability of the plain pro-
Hon. Charley Lockhart, January 30, 1939, page 3, O-108



visions of Seation 6 of Article 8 of the Constitution.   In this
connection, he says:

    "It was contraiy to law for the funds to be deposited in
    the General Revenue kund, as was done, but they have passed
    beyond the control of the Treasurer, and It la now imposs-
    ible for the Treasurer to pay to relator the amount of
    funds so deposited with him."

If the funds in question passed beyond your control as
Treasurer, and made impOS8ible your paying relator in the
abovementioned case, the amount of money so deposjted with
you and to which he had established his right by judgment, can
Ittbe said that such funds have not passed beyond your control
with respect to your ability to transfer the same out of that
same fund, held by Judge Sharp to be beyond your control, back
Into the Settlement of Estates Fund?  Clearly, if SUCh fund8
have passed beyond your control-for .the very purpose for which
they were originally paid to you, they have passed beyond your
control for every other purpose.

Articles 3653 and 3654 provide the mode of recovery by the
person claiming such fund8 previously deposited with the State
Treasurer, and provide that upon the filing of petition that
citation shall issue to the County or DiStriot Attorney in the
county in which such suit is filed to appear and represent the
State in such cause.
Article 3655 provides for the method of proaedure after the        ,.'
institution of suit and reads:

   "The proceeding8 in such suit shall be governed by the
   rules for other civil suits; and should the plaintiff
   establish his right to the fund8 claimed, he shall have
   a judgment therefor, which shall specify the amount to
   which he is entitled; and a certified copy of such
   judgment shall be sufficient authority for the Treasurer
   to pay the same."

Judge Sharp in the abovementioned opinion;clearly  potits out
with respect to the Settlement of Estate8 Fund, the difference
between paying money “to the State Treasurer" and in paying
money "Lnto the State.Treasury'.  Article 3644 clearly
provides that the funds involved in your inquiry are to be
paid "to the Treasurer". Judge Sharp says:

    9.'hUS, It is seen that the law provides the method for
    the papnt    of certain funds to the State Treasurer and
    specifically prescribes how Said funds may be aollected
    from the Treasurer. After describing in detail the pro-
    cedure to be pursued to collect such money from the
    Treasurer, it 5s finally provided; 'And a certified co=
                                                       _   .,




Hon. Charley Lockhart, January 30, 1939, Page 4, O-108



           of auoh judgment shall be sufficient authority for the
           Treasurer to pay the same.'"

In vrew of the reasoning of Judge Sharp in the abovementioned
opinion to the effeot that the Settlement of Estates Fund is
a speoial fund and that In substance the State Treasurer is
but the custodian or trustee by virtue of the statutes, and in
view of the further fact that Article 3655 clearly provides
that: It&d a certified co   of such udgment shall be sufficient
,aath&'yf;r, 2; tre-?p$     ;tep;z ",$ ;me;Aa;;  is the opinion


           (a) Your questions Nos.. 1 and 2 are answered in the
           negative and,
           (b) Your question No. 3 is answered in the affirmative.

Trusting that the foregoing answers your inquiry, we remain


                                     Very truly yours

                                ATTORNEY GENERAL OF TEXAS
                                By   Lloyd Armstrong

                                                 Assistant


Lh:hW/cg

APPROVED:
s/ Gerald C. Mann
ATTORNEY GEXERAL OF TEXAS
