Honorable Bascom Glles
Commissioner, General Land Office
Austin, Texas
Dear Sir:                  OpinFon No. C;lq77
                           Re: The proper method of handli,ng
                                special trust fund under H.B.
                                9, 46th Le,glslature,Regular
                                Session.
        You have requested the opinion of this department upon
the proper method of handling by your office of the deposits
required.to be made under the provisions of R.B. 9, 46th Leg-
islature, by vacancy applicants.
       We quote from your letter as follows:
        'The practice has, heretofore, been to re-
    quire deposits on all vacancy'appllcations filed
    by 'applicants' In compliance with the above
    provisions and the other portions of House Bill
   No. 9 and the sums thus received have been placed
  _ ln a special account in the Capital National Bank,
   Austin, Texas, designated as 'Bascom Giles, Trus-
    tee.' From,thls account the disbursements are
    made, as required under provlsfons of House Bill
    No. 9 and, as a record of same, there is main-
    tained a voucher record and journal showing the
    dlstributlon of the account for each separate
    application.
       "In thus construing House Bill No. 9 and in
   handling this trust fund in the manner s&out
   above, this office was in some measure guided by
   an opinion rendered the Land,Commissioner by the
   Attorney General's Department under date of April
   9, 1930, signed by the Honorable W. W. Caves,
   Assistant Attorney General. This opinion related
   to the $1.00 required by Article 5413, Revised
   Civil Statutes of 1925, to be deposited by each
   applicant for patent and to be paid through tbls
   office to county clerks as patent recording fee.
        "This office would appreciate the benefit of
Ronorable Bascom Giles, page 2         o-1977


    your opinion on the proper mode of handling
    this special trust fund under the terms of said
    House Bill No. 9 and whether or not the proced-
    ure now employed Is correct or whether such de-
    posits, when received, should be transmttted
    to the State Treasurer under terms and provl-
    sions of Senate Bill No. 48 enacted by the 41st
    Legislature as amending Article 4343 of the
    Revised Civil Statutes of 1925."

        The particular deposit about which you inquire in
your oplnlon request Is provided for in subsection (c) of sec-
tion 1 of R. B. 9 in the following language:
        "The Commissioner shall notify the applicant
   by letter of the estimate of the cost of pro-
   ceedings under the application, and, within thirty
   (30) days after the date of such letter, the appli-
   cant shall make a deposit with the Commlssloner to
   cov~ercosts of all work which may be necessary In
   order to comply with the request contafned in such
   application. Upon failure to make the deposit as
   required, all rights under the application shall
   be lost. In the event such deposit shall prove to
   be insufficient, the applicant shall be requested
   by letter to make a further deposit of a sum to be
   fixed by the Commissioner and, 1f such additional
   deposit be not made withln thirty (30) days after
   the date of such letter, the work shall be dis-
   continued and the application cancelled, and such
   cancellation shall be so endorsed on the applica-
   tion. .Upon cancellation, the right to purchase or
   lease under such application shall be lost. The
   deposits provided for in this Section shall be a
   special trust fund to be used only for the purpose
   authorized by this Act. Provided that the appll-
   cant shall have the right of appeal from the esti-
   mate of cost so made by the Commissioner, to the
   District Court of Travis County by giving notice
   to the Commissioner in writing thereof within
   fifteen (15) days after'the receipt of said esti-
   mate  from said Commisstoner as herein provided.
   And provided that said applicant shall have fifteen
   (15) days after the decision of said District
   Court as to amount In which to make payment thereof.."
        Evidently, the reference contained in your letter to
S.B. No. 48 of the &l&Legislature,   as amending Article 4343
of the Revised Civil Statutes of 1925, Is erroneous. S.B. No.
48 of the 41st Legislature is an amendment to Article 377, and
.       -




    EionorableBascom Giles, page 3         o-1977



    has reference to what shall be contained in the charters of
    banking corporations. It seems apparent that you intended
    to refer to H. B. 493 ch. 242, Acts of 1931, which is an
    amendment to Article 4388 and other Articles. Article 4388,
    as amended by ch. 242, Acts of 1931, provides as follows:
           "The State Treasurer shall receive daily
       from the head of each department, each of whom
       is specifically charged with the duty of making
       same daily, a detailed list of all persons re-
       mitting money the status of which is undetermined.
       or whFch is awaiting the time when it can
       finally be taken Into the Treasury, together
       with the actual remittances whfch the Treasurer
       shall cash and ~place in his vaults or Ln legally
       authorized depository banks, If the necessity arises.
       The report from the General Land Office shall in-~
       elude all money for interest, principal and the
       leases of school, un~lversltg,asylum and other lands.
       A deposit receipt shall be issued by the Comp-
       troller for the daily total of such remittances
       from each department; and the cashier of the
       Treasurer's Department shall keep a cash book,
       to be called 'suspense cash book,' In which to
       enter these d,epositreceipts, and any others
       issued for cash received for which no deposit
       warrants can be Issued, or when their issuance
       is delayed. As soon 8s the status of money so
       placed with the Treasurer on a deposit receipt
       is determined, It shall be transferred from the
       suspense account by placing the portion of it
       belonging to the State In the Treasury by the ls-
       suance of a deposit warrant, and the part found
       not to belong to the State shall be refunded.
       When deposit warrants are Issued, they shall be
       entered in this cash book, as well as any refunds,
       and the balance shall represent the aggregate
       of the items still in suspense. Refunds shall bye
       made in a manner similar to that in present use,
       except that separate series of warrants shall be
       used for making such refunds, to be called Ire-
       fund warrants,' and. such warrants shall be written
       and signed by the Comptroller and countersigned
       by the Treasurer and charged against the suspense
       funds to which they apply. Such warrants shall
       then be returned to the Comptroller and dellver-
       ed by him to the persons entitled to receive them."
            It is our opinion that the special trust find provided
    for in H. B. 9, which consists of deposits made by an applicant
                                                       -   -




Honorable Bascom Giles, page 4           o-1977


to &over the costs of the work which may be necessary Fn order
to comply with 8 vacancy applFcant's request for a surve ati
hearing, is not subject to~the provIsIons of Article 438 8 as
amended In 1931. Nor do we believe that such trust fund 1s
required tb be paid over to or handled by the State Treasurer
in any manner. The equitable title to such fund remains In
the vacancy applicant, and such money is only authorized to be
used by the Commissioner as trustee for the particular pur-
poses authorized by H. B. 9. It is further provided in H. B.
9 that the Commissioner shall render a complete statement.to
the applFcant and shall pay over the unused balance of the
money to the applicant as soon as the total expense properly
chargeable against the deposit has been determined.
        These provisions seem clearly to provide that the
fund.in question is to be administered by the.Comm1ssioner as
trustee for the purposes specified by H. B. 9, and that the
Commlssloner land not the State Treasurer is charged with re-
taFning custody of said money and of returning any unused
balance to the applicant when the ccsts chargeable to the fund
have been paid.
        Accordingly, it Is our oplnlon that the method you
have been employing In the handling of these funds Is proper
and lawful,.and that you are not required or authorized to
pay over such sums to'the State TreasureF, under the terms
of any statute.
                                 Very truly yours
                   :        ATTORNEY GENEZAL OF TEXAS

                                 By s/Robt. E. Kepke
                                      Robt. E. Kepke
                                           Assistant
REK:RS:wc

APPROVED MAR 28, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/%iB Chairman
