                                                The Attorney             General of Texas
                                                                    February 11, 1982
MARK WHITE
Attorney General


                                              Mr. Lias B. "Bubba" Steen                 opinion No. MW-443
Supreme      Court Building
P. 0. Box 12546
                                              COUlllliSSiOll~~
Austin,    TX. 76711                          Texas Department of Labor and             Ret   License fee    for   farm
5121475-2501                                     Standards                              labor contractors
Telex    9101674-1367                         E. 0. Thompson State Office Bldg.
Telecopier     5121475~266
                                              P. 0. Box 12157
                                              Austin, Texas   78711
1607   Main      St., Suite     1400
Dallas.   TX.     75201                       Dear Mr. Steen:
214/7428944

                                                   You have asked our opinion regarding the effect of House Bill No.
4624   Alberta      Ave.,     Suite     160   2089 on article 5221a-5, V.T.C.S. House Bill No. 2089, which became
El Paso, TX.        79905                     effective August 31, 1981, exempts labor agents who have registered as
91515333464                                   farm labor contractors under the Farm Labor Contractor Registration
                                              Act of 1963. as amended (7 U.S.C. section 2041 et seq.), from the
                                              provisions of article 5221a-5.
1220 Dallas Ave., Suite                202
Houston,    TX. 77002
713/6500666                                        At issue is whether individuals who paid a license fee as a labor
                                              agent under the state law are now entitled to a pro-rata refund of
                                              some portion of that annual fee if they are registered as farm labor
606 Broadway,          Suite     312
                                              contractors under the federal act. The question would only apply to
Lubbock,     TX.      79401
6061747.5236                                  those individuals who paid the state labor agent fee after September
                                              1, 1980, since it is an annual fee and the exemption in House Bill No.
                                              2089 became effective August 31, 1981. In addition, it would only
4309 N. Tenth, Suite             B            apply to those individuals who meet the above stated criteria and have
McAllen,     TX. 76501
512i662-4547
                                              registered as farm labor contractors under the federal act.

                                                   We note here that money paid to the Texas Department of Labor and
200 Main Plaza. Suite 400                     Standards as labor agent license fees is to be deposited into the
San Antonio,  TX. 76205                       General Revenue Fund as required by section 9 of article 5221a-5. We
5121225-4191
                                              are advised that the Texas Department of Labor and Standards, in
                                              anticipation of this problem, has placed said license fees in a
An Equal         Opportunity/                 suspense account with the state treasurer, as provided by article
Affirmative        Action     Employer        4388. Notwithstanding the above, all state money, including that in
                                              special funds, is subject to the restrictions of article 8, section 6
                                              of the Texas Constitution which reads in relevant part:

                                                          No money shall be drawn from the Treasury but in
                                                          pursuance of specific appropriations made by
                                                          law....




                                                                            p. 1527
Mr. Lias B. "Bubba" Steen - Page 2      (MW-443)




     However, the legislature has specifically made provision for the
refund of money in section 26 of the 1981 General Appropriations Act
which reads:

               Any money deposited into the State Treasury
          which is subject to a refund as provided by law
          shall be refunded from the fund into which such
          money was deposited, and so much as is necessary
          for said funds is hereby appropriated.

Acts 1981, 67th Leg., ch. 875, at 3811. This section has been
construed to allow a state agency to refund money if the law of the
state allows for such refund. -See Attorney General Opinions H-224
(1974); H-716 (1975).

     We find no language in House Bill No. 2089 or article 5221a-5
which authorizes a refund of money paid as a license fee under any
circumstances. In the absence of specific statutory authorization,
the general law of this state expressed in its court decisions
recognizes three separate grounds which will support a claim for
refund of fees paid to the state; these are (1) fraud, (2) mistake of
fact, and (3) duress. Attorney General Opinions O-6282, O-6974
(1945); See also Attorney General Opinion O-7113 (1946).

     We will now consider whether the payment of the license fees
inquired about was made in such a manner as to come within the meaning
of any of the above three categories.

     A license fee is but a price exacted by the state through its
police powers for the exercise of a privilege, payment of which is
made prerequisite to the right to exercise the privilege sought. The
state has unquestioned authority to exact license fees reasonable in
amount for purposes of regulation.

     Section 3(c) of article 5221a-5 provides:

              The application shall be examined by the
         Commissioner. If he finds that the same complies
         with the law and that the applicant is entitled to
         a license and pays the annual license fee of Fifty
         Dollars ($50). then he shall issue a license to
         the applicant.     Each license issued by the
         Commissioner shall be good for a period of one
         year from date of issuance. (Emphasis added).

     Under the circumstances and facts you have presented, we are of
the opinion that payment of labor agency licensing fees do not fall
under any of the three aforementioned categories. At the time the
labor agent license fees were paid, the party making application had




                              p. 1528
Mr. Lias B. "Bubba" Steen - Page 3     (MW-443)




full knowledge of all facts surrounding his application for
registration as a labor agent. There was no fraud or mistake of fact.
As to duress, the Supreme Court of Texas in the case Galveston City
Company v. Galveston, 56 Tex. 486, 492 (1882), stated:

              In   determining whether    the money    was
         voluntarily paid or not, an inquiry must be made
         into the intention of the parties at the time the
         money was paid; and unless it appears that, at
         that time, there was an unwillingness to pay, the
         payment must be held to have been voluntarily
         made....

     In the instant case we can find no indication that at the time
the labor agent license fees were paid, there was any reluctance or
unwillingness on the part of a license applicant to pay the fees.

     We therefore find no statutory or lawful authorization for you to
refund any portion of the labor agent license fees. We therefore do
not reach your additional question.

                             SUMMARY

              Due to the absence of statutory or common law
         authorization, annual license fees paid by labor
         agents under article 5221a-5 are non-refundable
         even though subsequent legislative action may have
         exempted a certain class of labor agents from the
         requirement of the statute.

                                        Very truly yours,     /I



                                        MARK      WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Ed Salazar
Assistant Attorney General




                              p. 1529
Mr. Lias B. "Bubba" Steen - Page 4      (Mw-443)




APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Ed Salazar




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