The Honorable Bob Bullock          Opinion No. H-810
Comptroller of Public Accounts
State of Texas                     Re: Refund of admissions
Austin, Texas 78774                taxes collected under a.?
                                   unconstitutional statute.

Dear Mr. Bullock:

     you have asked our opinion regarding your authority to
refund admissions taxes.

     Article l.llA, Taxation-General, permits the Comptroller,
when he "determines that any person, firm, or corporation
has through mistake of law or fact overpaid the amount due
the State on any tax collected or administered by the
Comptroller," to "refund such overpayment by warrant on the
State Treasury from any funds appropriated for such pur-
pose." This refund provision is applicable to "any occupa-
tion . . . tax," which includes, ir,ter alia, the admissions
tax. Calvert v. McLemore, 358 S.W;Zd551,552     (Tex. Sup.
1962). The 64a Legislature specifically appropriated such
funds:

          As much of the respective taxes collected
          and administered by the Comptroller as may
          be necessary is hereby appropriated and
          set aside to pay refunds as provided by
          law. General Appropriations Act, Acts
          1975, 64th Leg., ch. 743, at 2574.

      1t is well established that an aoorooriation,
                                      -- _           in order
to be valid, need not name "a certain sum or even a certain
maximum sum." National Biscuit Co. v. State, 135 S.W.Zd 687,
693  (Tex. SUP. i940).  In our 0pEoZ    theegislature's
appropriation of funds to the extent necessary to pay valid
and legal refunds was a lawful exercise of its authority.




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  The Honorable Bob Bullock - page 2 (H-810)



        We note that the Comptroller may not "incur an obliga-
   tion in excess of the amounts appropriated . . . for the
   respective objects or purposes named."   General Appropri-
   ations Act, Acts 1975, 64th Leg., ch. 743, 5 23, at 2859,
   Thus, the Comptroller is prohibited from making any refund
   payments in excess of the amounts available from the relevant
   funds. We have not been asked, nor do we decide, any questions
   relating to the validity of any particular refund.

                            SUMMARY

                 There is an appropriation in the General
                 Appropriation Bill enacted by the 64th
                 Legislature which authorizes the Comptroller
                 to pay,legal and valid refunds of taxes paid
                 through mistake of law or fact.

                                      Very truly yours,




                                      Attorney General of Texas

-.-
  ---APPROVED:




      ROBERT HEATH, Chairman
   Opinion Committee

   jwb




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