          OFFICE   OF   THE   ATTORNEY     GENERAL   OF   TEXAS
                                  AUSTIN




Xr.   i+snola   B. HeMhan
State Librarian
Texas State Library
Austin 11, Texas
Dear Ar. H0nahan:                    Oplnlon No. O-7175
                                     Rar    Refunding nona




       lectil~~,,.
                and had not been replaced with duplicate copies,
             *%n January 18, 1945, the ;3tsteilbmrian put through
       a rac,ulsitlonfor a refund to Xiss Preston in the asount
       or ~4.88. Tiiiarsquiaition was refused by the Coclptroller
       or ablio   Accounts. Xlns Treston is asking again that
       this F;onsybe refunded.
?&. 3ranols Ii.~hnshsw, Far;82


          Ws would, tharqfore, llks an answer to the
     followlr~ quastionr
          "(1) IS it legally possible to rsturn the
     borrower'8 aonag; or,
          "(2) Ii that is not poselblr, shall ws ccnsidsr
     the books aa property the 3tata has sold and raturn
     them to the borrowsr as purohass~'?~
          The booka of ths Library are Cata property, ror thr usa
of the pub110 in ecoordanoe nlth the statutes and regulations or
the Commission adopted in pursuanoe of statutory authority, (SW
Rev. Civ. stat. Art. 5435).
           aooks once aoqJiirsdby the State remain in legal oom-
templatlon the Ctats's property until  In 8011 legal wy the Stats
has disposed of them. The Commission has no authority to dlsposs
of suoh books except in some manner provided bg law. Sin06 there
is no statute authorizing the Commission to aell the books or ths
Library, and sines thara has brsc no rula or ramlotion prescribed
:; ;s;ur;o;:,"; ;;; ;:?A;;%:7 power to make rules and regulations,
                              itle to the books has never passrd to
Xlss Fraston. 'Thesituation presented is not the same as the legal
oonospt of thr passing of title from the owner to ona who converts
property, upon payI= tha value therefor, suoh notional paselng of
the title bsiug based upon the Implied consent of the owner, erldanord
by his eleotlon to demand dams&es instaad~ of return of the property,
This analogy dcss not hold where the :Xata Is the wrier, ror the
mason  the Stats has no ganeral flgentsfor disposing or Its propar-
tp -- there must be statutory  authority to effeotuate suoh ohangs
0r title.

          Sactlon 6 or Artlolr 8, Constitution of Tsxae provides
that "no nonep shsll be drawn fro:1the T4-sasurybut In ,r,orauancr
or speolflo aDpsopriationsmade by law”. ::onave osrsrullp exam-
ined th4 appropriationsmsdr to the Texas Library and Historioal
Co,mmission and find that the 49th Lat;islatursdid not apprcprlata
any aoney from whloh XSS Fraston may be refundad the sum of Y,.SS.
          '?a foll~inrg proviso Vas mEldaa part 0: suoh npgro:jriation:
             Ycrvided that,all ?.onops ~?(?id
                                            into the 3tata ?reasury
     b.7the state ilbrsirp   frcn r-funds for lost or badly dalaeed
     bOOi.3,   Tin.3
                   all moneys for ure-payment for nost:%e, drayege,
     or transportation3ro hereby nFcroprlated for the Stuta
     iibr2rg for b3o!cs,postasa, axyzsv,     and frslp.htfor the
     ::tntaLibrary.'
  . bmols
.‘.;r        Ii.Henshaw, ikgm 3


           Thus it la aeon that said sum or money 80 paid by Miss
Yraston oan only be used to pay for books, postage,   srpreae and
fre l.Tht. As statsd above, the stats fit no tine lo.& Its title  to
the book8 ln question and henoa oan not purchase Ita own property.
          ?!e thersfors hold that !rlas Frseon aennot be refunded
said amount in the nmnnar attemptrd.
             It Is the general rula In this State that mnry rolun-
tarlly   paid Into tha State Trsesury OannOt be refunded even though
the Le&3letura     at:smpts to make an appropriation    thsreror.     How-
zve.r, the Courts of this Stete and thle department haa held that
the Le~lslature    may rotund money wrongfilly   paid, when same was
paid althor through (1) traud, .(2) under nlatake of rant, or
C3)e;;rreason    or durs ss . There was nc fraud practiced    or duress used.
            the mansy was paid under a !mtual mistake or raot, that Is
under tie mistaken belief      that the books were psrasnently    lost,  and
not merely temporarily      mlsplaoed.
           It Is therefore    our o?lnlon that tha LeglslatLWa nay law-
tully make an apprnprlation     to Else Praeton In the amount of $4.88.
Tour second question,    therarors,   beoolnsa moot.
                                           Youre   vary     truly
                                        ATl’OHNm GENZRALOF TEXAS



                                                VI, V. Gspprrt
                                                Aselstant
