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                          THEA          ORNEY         GENERAI.
                                      OF   TEXAS
                                     AUSTIN 11.TEXAS
  WLL         WILSON
A~ORNEY            GENERAI,            May 6, 1960

    Honorable Robert S. Calvert                 Opinion No. WW-834
    Comptroller of Public Accounts
    Capitol Station                             Re:   Pre-existing law for
    Austin, Texas                                     payment of various claims
                                                      for reimbursements of fees
    Dear Mr. Calvert:                                 paid to the State of Texas.
         Your request for an opinion of this office reads as
    follows:
                         "Attached to this opinion request
                       you will find claims for reimbursement
                       of fees paid to the State of Texas.
                         "Section 44 of Article 3 of our
                       State Constitution provides in part
                       as follows:
                         "'The Legislature---shall not grant---
                       by appropriation or otherwise, any amount
                       of money out of the Treasury of the State,
                       to any individual, on a claim, real or
                       pretended, when the same shall not have
                       been provided for by pre-existing law.'
                         "Is there sufficient pre-existing law
                       for me to pass the claims for payment?"
              The referenced claims include the following:
              A.       Claim by Mr. Bernard F. Adler for Private
                       Employment Agency License fee.
              B.       Claim by Miss Charlene N. Ickes for Private
                       Employment Agency License fee.
              C.       Claim by Mrs. Nancy Bennett for Private Employment
                       Agency License fee,
              D.       Claim by Mrs. W. H. Carver for Real Estate Dealer's
                       License fee, issued to W. H. Carver, deceased.
              E.       Claim by Mr. W. E. Hutton--Miller for Securities
                       Dealer's Application filing fee.
Honorable Robert S. Calvert, Page 2   Opinion No. W-834


    F.   Claim by Johnnie Curry for Barber's License
         fee.
     We have concluded that there is pre-existing law
sufficient to support the appropriation for and payment of
these claims.
     The term "pre-existing law" as used in Art. III, Sec.
44 of the Constitution has been interDreted to include not
only statutory law but also common law, where not in conflict
with our Constitution or statutes. Art. 1, R.C.S.; Austin
National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 2-34).
From this rule it has been reasoned that a fee which has been
paid under (1) fraud, (2) duress, or (3) mistake of fact may
be recovered. See Attorney General's Opinion No. O-6974 (1945);
Attorney General's Opinion No. o-6282 (194.5)and authorities
therein cited.
     A review of the information you have supplied us relating
to claims A, B, C, and D above enumerated seems to indicate
that each payment was made under a mistake of fact; that is,
that the license for which each respective payment was made
would be used by the applicant. It appears that each such
license was in fact not used but returned to the issuing agency.
     Likewise, it appears that the payments in claims E and
F were each made under mistake of fact. In claim E, the applicant
believed that a certificate, or license, would issue to him,
and thereupon remitted the fee required for filing the
application. The certificate was never issued, and hence the
amount paid as a filing fee should be refunded.
     In claim F, claimant submitted his application for a
Barber's License, accompanied by the statutory fee, after he
had been convicted of a felony and while he was in fact serving
his sentence in the penitentiary. Apparently, the felony
conviction was of a type which provided grounds for the revoca-
tion of or refusal to issue a Barber's License (see Art. 7346,
sec. 10, P.C.). The license was prepared for issuance, but
before it was actually sent to claimant his felony conviction
was discovered. Since payment was remitted upon the premise
that the license would issue, this fee should be refunded also.
     It is necessarily assumed, for the purpose of this opinion,
that appropriations sufficient for the payment of the claims
involved have been duly made by the Legislature, and that the
only question is whether there was pre-existing law to support
the appropriations and payment.
Honorable Robert S. Calvert, Page 3   Opinion No. WW-834


                     SUMMARY

              There is sufficient pre-existing law
         to support the appropriationsfor and
         refund of six claims for various fees paid
         the State, each under mistake of fact.
                          Yours very truly,
                          WILL WILSON
                          Attorney General of Texas



                                ames R. Irion

JRI:cm
APPROVED:
OPINION COMMITTEE:
W, V. Geppert, Chairman
L, P. Lollar
Leon F. Pesek
J. Arthur Sandlin
Iola Wilcox
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
