                                          The Attorney            General of Texas
                                                              August 17, 1983
    JIM MA-I’TOX
    Attorney  General



    supreme      Court Building
                                         Honorable Ann Richards                 Opinion No. .IMG6
    P. 0. BOX 12546                      Texas S.tateTreasurer
    Austin.    TX. 76711- 2548           Treasury Department                    Re: Whether the State Treasurer
    51214752501                          P. 0. Box 12608, Capitol Station       may use a wire transfer system
    Telex    91Of674.1367                Austin, Texas   78711                  to transfer and collect funds
    Telecopier     5121475-0266
                                                                                within the treasury

    1607 Main Sl.. Suite 1400            Dear Ms. Richards:
    Llallas. TX. 75201.4709
    2141742a944                               You have requested our opinion as to whether the State Treasurer
                                         may use a wire transfer system to remit and collect funds within the
    4624 A,ber,a    AYe.. suite    160   treasury. The funds are placed in state depository banks and the
    El Paso. TX.    79905.2793           State Treasurer wishes to remove funds from one such bank and remit
    9151533-3484                         them to another. We answer your inquiry in the affirmative.
0

    1220 Dallas     Ave.. Suite   202
                                              In answering the issue of using the wire transfer system to
    Houston,     TX. 77002.6986          transfer funds within the treasury it is important to note that
    7131650-0666                         although there are adequate constitutional and statutory provisions
                                         that guide the State Treasurer in withdrawing funds from the state
                                         treasury, there are no provisions which address the movement of funds
    806 Broadway,      Suite 312
    L”bbcxk.  TX.     79401.3479
                                         within the treasury. See Tex. Const. art. VIII, §6; V.T.C.S. art.
    8061747.5236                         4371. These funds are Gsted     by the treasurer and are available for
                                         appropriation and expenditure by the legislature. V.T.C.S. art. 2525,
                                         (amended by S.B. No. 100, Acts 1983, 68th Leg. ch.         at       );
    4309 N. Tenth. Suite S               V.T.C.S. art. 4371. Since article VIII, section 6 of the Texas
    mAllen.      TX. 76501-1665
                                         Constitution prohibits these funds from leaving the treasury, it is
    5121662.4547
                                         important to recognize that a transfer of treasury funds from one
                                         depository bank to another does not cause the funds to be "drawn from
     200 Main Plaza. Suite 400           the Treasury." The Court of Civil Appeals has stated the following:
     sari Antonio. TX. 762052797
     5121225.4191
                                                   We are also of the opinion that there is no
                                                   diversion of the state's funds by the depositing
     An Equal OpportunItYi                         thereof in banks under this act, in the sense that
     Affirmative    Action   Employer              they are withdrawn from the treasury, in violation
                                                   of the Constitution. By the terms of the act it
                                                   is plain that the state's funds, while placed in a
                                                   depository, are still under the custody and
                                                   control of the Legislature, and are directly
                                                   subject to the orders and drafts of the treasurer
                                                   in the payment of the state's obligation. In
                                                   other words, they are not out of the official




                                                                     p. 282
Honorable Ann Richards - Page 2     (~~-66)




          custody and control of the treasurer, and cannot
          in any proper sense be said to have been drawn
          from the treasury.

Lawson v. Baker, 220 S.W. 260, 271 (Tex. Civ. App. - Austin 1920, writ
ref'd). Therefore, since the funds are still within the "control" of
the treasurer, the use of a wire transfer system as a management tool
for the administration of these funds does not violate any
constitutional or statutory provisions. It is acceptable for the
treasurer to use a wire transfer system, instead of the historically
used draft system, in the administration of these funds.

     Using a wire transfer system to collect funds within the treasury
is controlled by article 2535, V.T.C.S., which states, in pertinent
part, the following:

         All remittances to the Treasurer made by the State
         Depositories, or any person or persons 3     be in
         cash by registered and insured letter; by post
         office money order; express money order of any
         company authorized to do business in Texas, or by
         any bank draft on any bank in the following
         cities:   Dallas, Fort Worth, Waco, Houston,
         Austin, Galveston, and San Antonio. The liability
         of any State Depository or person sending the same
         shall not cease until the said money is actually
         received by the Treasurer. (Emphasis added).

     Article 2535 provides that the remittances to the treasurer "may"
be made in the ways expressed by the statute. The statute, by using
the word "may" instead of "shall" or "must," does not limit the
treasurer to the stated methods of collection. See, e.g., 53 Tex.
Jur.Zd Statutes 516 and cited authorities. In State v. Hatcher, 52
S.W.Zd 794, 797 (Tex. Civ. App. - Austin 1932), rev'd on other
grounds, 81 S.W.Zd 499 (Tex. 1935). the court found that this language
in the statute gave the remitter the right to remit in these
authorized forms and required the treasurer to accept these forms of
remittance. Additionally, the court found that

         [tlhese restrictions in the forms of remittances
         were no doubt for the convenience of the
         treasurer, and clearly, we think, no duty was
         imposed upon him to accept remittances in any
         other form.

It is important to note that the court did not find that these
authorized forms of remittance were exhaustive or that other forms of
remittance were prohibited. Therefore, it is our opinion that these
statutory restrictions in the forms of remittance are minimum




                                  p. 283
.   .


        Honorable Ann Richards - Page 3    (JM-66)




        restrictions imposed on the treasurer which do not prohibit the wire
        transfer system of collection.

             We note that your question is presented in general terms, and we
        offer no opinion as to the validity of particular transactions.



                                      SUMMARY

                     The Texas State Treasurer may use a wire
                  transfer system to transfer abd collect funds
                  within the treasury.




                                             LLJkfl*
                                                   JIM     MATTOX            I
                                                   Attorney General of Texas

        TOM GREEN
        First Assistant Attorney General

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Rick Gilpin
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Colin Carl
        Rick Gilpin
        Deborah Hersberg
        Jim Moellinger
        Nancy Sutton




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