                           November 18, 1947


Boa. Jep 3. Fuller                 Opinion No. V-434
county Attorney
JCffCP8Or2 county                  RC:   The manner fn which
Beaumont,  Texas                         Payment may be made
                                         to the city of Port
ATTN: Mr. Joe S. Haida,      Jr.         Arthur of certain
                                         funds alleged to have
                                         been erroneously paid
                                         to the State
Dear Sir:

            Your request   POP an opinion   dated September 12,
1947, is as follows:
            ‘you will recall   my conversation with
     you recently    regarding a Pequest of the At-
     torney General for a ruling on the question
     whether or not the State Treasurer,     the
     St8te Comptroller and/or the Tax Collector
     o? Jefferson County has the authority to re-
     pay to the City of Port Arthur certain      funds
     which have, through error9 been paid to the
     State.
           “I have particular reference to taxes
     remitted to the City of Port Arthur under
     authority  of House Bill 410, Regular Session
     49th Legislature, Ch. 353, P. 615 Vernons’
     Texas Session Laws e A recent Audit has dis-
     closed that no taxes on intangibles   have ever
     been remitted to the City, Contras    to the
     Attorney GeneralIs Ruling (Opinion No. 0-7085,
     Feb. gth, 1946) on file in your office.    Also
     there have been numberous instances where taxes
     on rerl estate have not been remitted by reason
     of various types of errors. In all of these
     fnstaWes”such   taxes have be&m paid Into the
     State Treasury.
           “It Is the City’s contention that, since
     these taxes were granted to the City of Port
     Arthur under authority  of the Above Legislatfve
                                                                        . .




iIOn.   JCp   s.   FUlleF   -   Page   2   (No, V-434)


        Act to perform a State Function,           that is,
        the construction of Seawalls etc          *, there’ should
        be requlred no further authority           on behalf of
        any State or County offfcia1.s   to        pay the monies
        as directed by the Legislature,
               “We would very much appreciate your maklug
        this req,ueat on behalf of the City.’ I will fur-
        nish any additional   brFeffng that you mtght con-
        s id er proper, ”
           We find it necessary to firat examine Opinion
0-7085, dated February 9, 1946, to determine ff it cor-
rectly states then’law D Your opinion request states:     “A
recefit audit has disclosed  that no taxes on intangibles
have been remftted to the cfty    contrary to the Attorney
Qeneralps ~uIlng (Opinion O-7065, February gth, 1946) on
file fn your office 0’p
             Our opinion has reference  only to taxes assessed
8nd  collected   under the IntarPgibls Tax Ilw, Chapter 4,
Title 122 (Apts 0 7105-7126) VX3.      8nd not to Lntrngibfes
that msy be texed outside the scope of Chapter 4, ‘Title
122, such aa debts, stocks, bonds, etc., whfch wy have a
t8X8blC sftus within Preefnot No, 2 8s distinguished      from
the County at 18Pge0
            A ehreful study of this opfnion and an examfna-
tion of tkm authori.%fes convinces us that ft is erroneous
and must be overruled 9,nsofar aa it applies to t8xeS as-
sessed and collected    under the Sntangfble Tax Law.* Chapter
as Tftle  122 P9C.S0 The followfug ruthoritfes          make ft
quite ckeer that Sntangfble taxes .under the Intangible           Tax
Law are apportioned to the county at large and wy not be
apporticned to the respective     polltfcal    subdivisions    of
the County, as here, to the CL,ty of fart Arthur or Commis-
sionergs   Ppecim%   NC- 2 0C Gefferson     County.
           En the ce8e sf S?XI% vs PecffLc Ra~lwag Company,
62 3-w * 2d $1 {sup, C%Yj we fiAd this language :
                l’It is qwte tFue.q as contended by corm-
        se:, that in tke fntangible         tax law, it pro-
        vj.fj&j ir, effec$,   {Art, ,7X05) thst fntengfble
        assets may be taxed for state and coun_tg-
        we~,e, and it Is further true Ehat no provision
        f’n that law affotis     legfslatfve    authority for
        tte taxing of such assets for any other purpose
        2~~~I-~.-I.x~~~.
             f,cr tkie benefF
        jd&on OF~aJpe~ :
ROW   J.p ~..~Ull@P 6 P8#0    3   (NO. V-4349



      of the rolling rtoak vhfoh, under tbo provisions
      of Artibli var,        fioa 8 of Cha Constitution
      8ad   Of kl%%ola 71 8”
                           9 Of ~ttlC 88&UtC,   W8S 8ppOX’-
      tiowd bf Chb ltrte     ColptPoller    to Bl ?rso Couia-
      fyp the r%twl for taxltion pUPposes bdoama ifsted
      18’tWt   ~OUotj.    The ~~SoU’UpOIl     whfeh this con-
      clui~ion fr brdbd'are   dubatmtirll~     the 88~8 a8




             90 tbo 88aC oftoet 4s tha case of Bell Osuott *i.
#8*8,     219 3.13. 556 (Cowt of civil Appealr~ Writ of Brror
&8%8d),     ft’ollVtlfob UO quote 88 follOV~x
             n 0 . D Artich   7414,  Bevised St8tUtO8,   pO-
      videa that ~6r)ah%uilvaj aoarpany 'ah811 pay io'la-
      XUJBl t8X t0 the ‘8t8tb    q D o On ,thCfP iet8lI#%b1,
      88BCt8, a a 0 ind 10081 taxes theaeon to the obua-
      ties in whiah it8 bU8fllCaa ia Caided        00.'~ Ott&
      plro’dsioru of the strtute provide for lpportionl~-
      intan&ble rrretr     to the Countfeu, and hoWtlrr’8aWe
      shll'bs 1i8ted on th& t8X Polli of the do&~'4 'IO
      this vlse~, the IWtuto wker the ‘pie r8tr        6f’iaitazi-




            Seatio~ 1, HoUs BFPI 410, OPSSCd by the RC@l18P
5*811Oti Of the 49th LO&8l8tUPC   Ch- 3'53, 9e 615 Of VCZ'OOXt'S
'E8X88 S888iOR tV8’ i8 ,b fO11OVlla

           %hat ooweaofng   with the fiecrl Je8r begln-
      ning beptember 1, 19?!9, 8~d 8nd9nl: Au&xat 31, 1961,          f
      there be and hereby 8PQ doarted lUd gP8sltad by the
      3tatc of Tezrs to the 6i.t~ of Port Ad2wr,   Texas,
Ron;    Jep S. Fuller     - page     4   (No < V-434)



            Under the express terms of this bill  the dons-
tion of eight -ninths   r&&h) of the State taxes Is “on
all property   both real and personal Lrr Commisrionrrs /
Precinct  No. 2 of Jefferson  County, as existed  one Zanuary
2, 1945.”

              Under the construction         of the FntangFble tax law
applied    in the foregoLng       authorities,     intenaible    assets  do
not constitute       property~~~n Commissioners’        Precinct   No. 2 of
Jefferson     County within the purview of sold Hi R. 410:               It,
therefore,     follows    thst, no part of the intangible         taxes
levied,    assessed    and apportioned       to Jefferson     County under
the Intangible       Tax Law are donated to said district            as Opin-
ion O-7085 erroneously         holds ; to this extent it is express-
ly overruled e

            This leaves   only the question   embraced In the fol-
lowing part of your opinion      request:   “Also there have been
numerous instances     where taxes on real estate have not been
remitted   by reason of various types of errors,       In all of
these Instances    such taxes have been paid into the State
Treasury”.

            You state that aueh taxes have been paid into the
State  Treasury*    The question     arises,    may they be withdrawn
or paid out by the Treasury without a specific             appropriation
by the Legislature?      We think Section       6 of Article    VIII of
the Constitution     compels a negative      answer,    This article
and section    of the Const,itut.ion    provides   in part:

             “No money sh.aLl be drawn from the Treasury
        but 1n pursuence  of spec?.fic appropriations made
        by 1swG I’

              In the case    of Manion VY- Lockhart,            i 14 ? .i;   93
216, (Sup 1 Ct *), there>       as    here,   the   money was E:Jy<)‘lC
                                                                      O’QX
                                                                         i~‘f
paid into     the general    Fund :      In discussing    the    quest.ion
the Court     said E

                “It is shown that IJesponcient, acting        on
        the opinfon      rendered ‘oy the Attorney      Genera1 9
        deposited     this money in the general       revenue
        fund of the State,        Respondent has fn no man-
        ner profited      by such action    on his part.      He
        acted in good faith       in depositing     such money
        in the general revenue fund, wh%.ch now requires
        that It be appropriated       by the Legislature       in
        accordance     with the provisions       of Section   b of
        Article    VIII,    of the Ccnstitutfon:      Respondent
        mot         now have in his poeses&?n         such funds,
     rid, ti&ewere, La FB ImaMa, *fitmut an +Jt*s
     tha'.la~faktu#a, to pay aa- to thoaa ihtitlad           '?
                     Xt tr undUqwted that ralatoc

     t8 he )rld’ the bull; of uoar~ olalwl by hii& Zt:
     La lrdt bhoWt; 'however; that rilator cannot obf;rln
     t&s m006y due h$m by 8nothaP oemplata and ~ad~uatr~              ,       .'


                                                                               ..!


         t ftau am, tharefora, ~aapaaCfully,~dvised tkak‘a? '
part oi thr LIta    Lble tax aollactad    In Je~arsoj% aountj
WY b. BPPort&O   8%  to the   city  ai Portr.Azmilir  or GoRri#sion-
CPI ’ ?rectwt   No. 2 oi’ arid Count). uadrr said Xousi’ Bill
410 a? the 49th Lagllllature.      Nor a8y auab~~~taxesdonated ‘by,
aaLl ~bLl1 00 @opavt    having a’phfrioal    sf.tus..in slid dfs-
tri(lt, but amona-    3y paid into tha Itate Treasury to the
cwdtt  of the i3anaral Wevenue Fund, be rei’uaded to the dis-
triat exoept br a)ioLf’io appropriation by the Legislature.



           Ho part of tha &ntangible taxer oolleot-
     ed by Jeffercran Oaunty upon lntahgible     amets,
     as.provided   ib tha ~ntaaglble Tax Law, may be
     apportioned to the CLty of Port Arthur or Corn-
     missioners 1 PreoZact No. 2 of said County under
     House Bill 410 of’ tha 49th Leg’fslature*      Taxes
     therein donated arise only fro81 propapty liavfug
     a situs in the dlatriat,      Intangible  taxes are
     apportioned to the ooun%~ at lerge but not to
     any di&ri.ct    of said county.    Bell County v.            .
     Pines 219 s;K. 556, state v. Paofffc .Reilwa;r
     coapany, 62 s-w, Z!d 81 (sup.      Ct.)*        .
            If taxes collected   upon either real or
      personal property’locatsd     fn the dfatS$at have
      erroneously been paid into the State Treasury
      ind credited to the General Fund, they may be
      refunded to the distriot’only     by specific    ap-                :
      propriation   made by the Legislsture.      Section
           :-
          .
Han, Jep S. Fuller   - Page 6   (No. V-434)



     6 of Article VIII,   ConstitutLon of Texas;
     Manion vs. Lockhart,   :I4 sow. 2d 216,  (sup.
     ct.)

                            Yours   very   truly

                        ATTORNEYGENERALOF TEXAS




LPL/lh

                        APPROVED:
