          THE      ATTORNEY          GENERAL
                      OP'hCXAS




The Honorable Hugh C. Yantis, Jr.    Opinion No. H-833
Executive Director
Texas Water Quality Board            Re: Whether boat certi-
1700 North Congress Avenue           fication fees erroneously
Austin, Texas 78701                  collected by the Water
                                     Quality Board can be
                                     refunded.
Dear Mr. Yantie:
     In Attorney General Opinion H-716 (1975) this office
advised you that a provision in the general appropriations
act specifies that any money deposited into the State Treasury
which is "subject to refund as provided by law" is appropriated
for that purpose. We said the provision would apply to boat
certification fee refunds "necessary to reimburse persons
entitled by general law to refunds of money placed in,the
special [boat certification feel fund." See Acts 1975, 64th
Lig., ch. 743 at 2417; Water Code 9 21.09m).
     You have now asked if the money in the boat certifica-
tion fee fund is "subject to refund as provided by law" in
four specific situations:
          1. In the instance in which a local govern-
          mental entity is the designated certifying
          authority, an applicant already certified
          by that entity mistakenly applied for and
          remitted fees for certification by this
          office.
          2. Persons have sent in applications for
          certification when they operate boats in
          salt water only. The law and this Board's
          regulations apply only to boats operating on
          inland freshwaters.




                           p. 3515
.




    The Honorable Hugh C. Yantis, Jr. - page 2   (H-833)


             3. Persons have applied for certification
             when their boats have no permanent sleeping
             facilities and no marine sanitation device,
             in which case there is no need for certification.
              4. Persons have submitted payment in excess of
              the amount required for certification.
    In the first three cases, certification may not be properly
    given, and in all four cases, the fees were accepted and
    deposited before the error was discovered.
           Section 21.097(c) of the Water Code, which governs the
    collection of boat certification fees and the establishment
    of the fund into which they are paid, does not itself expressly
    authorize refunds for any reason, but in our opinion, refunds
    can be made if authorized by common law. Cf. Attorney General
    Opinion H-716 (1975). We think the appropztion      act proviso
    p rmitting refunds as provided by law is meant to square
    w f th article 3, section '44of the Texas Constitution, which
    prohibits the Legislature from granting "by appropriation,
    or otherwise, any amount of money out of the Treasury of the
    State, to any individual; on a claim, real or pretended, when
    the same shall not have been provided for by pre-existing law."
         In explaining the constitutional restriction, it is said
    with ample support in 52 Tex. Jur.2d, State of Texas 6 40
    at 750:
              [T]he legislature may not appropriate
              state money to any individual unless,
              at the time the appropriation is made,
              there is already in force some valid
              law constituting the claim that the
              appropriation is made to pay a legal
              obligation of the state. By that
              legal obligation is meant an obligation
              such as would form the basis of a judgment
              against the state in a court of competent
              jurisdiction in the event the state should
              permit itself to be sued. The term 'pre-
              existing law' does not necessarily mean




                              p. 3516
The Honorable Hugh C. Yantis, Jr. - page 3 W-833)


         pre-existing statutory law. . . . Hut it is held
         that a moral obligation will not authorize
         an appropriation by the legislature, even
         where the state has received the benefits
         of the unauthorized contracts of its
         officers or of unauthorized taxes voluntarily
         paid into the treasury.
     We discussed in Attorney General Opinion H-548 (1975)
the rules applicable to the refund of taxes where no statute
applies:
          (1) a person who voluntarily pays an
          illegal tax has no claim for repayment:
         (2) a person paying an illegal tax under
         duress has a valid claim for repayment;
         (3) duress in the payment of an illegal
         tax may be either express or implied, and,a
         legal duty to refund exists in both cases:
         (4) a taxpayer need not take the risk of
         incurring the threatened penalties or
         punishments while the invalidity of the
         tax is being litigated in order to
         claim duress: and
         (5) in the absence of a statute to the
         contrary, it is immaterial to the taxpayer's
         right of repayment whether or not the tax
         was paid under protest.
These rules, laid down by the Texas Supreme Court in National
Biscuit Co. v. State, 135 S.W.Zd 687 (Tex. Sup. 1940), have
been appmdTotherefund      of fees, as well as of taxes.
Crow v. City of Corpus Christi, 209 S.W.Zd 922 (Tex. Sup.
m)TAttornz      Generalans       M-1048 (19721, WW-834 (19601,
ww-749 (19591, O-6974 (1945). Cf. Attorney General Opinions
M-576 (19701, WW-364 (19581, WWx8   (19571, O-7113 (19461,
O-6282 (1945).




                          p. 3517
I   .




        The Honorable Hugh C. Yantis, Jr. - page 4 (H-833)


             In the above-described fact situations, the money received
        has already been paid into the state treasury. Under the
        ational Biscuit Co. rules, the payments must be considered
        voluntary and no=efundable~unless   they were made under
        duress, express or implied. The most,recent Supreme Court
        case on the duress necessary to entitle a payor to a refund
        is State v. Connecticut General Life Insurance &,   382
        S.W=4r(Tex.      Suo~.1964l.Smnvolved       occuuation tax
        overpayments. The Court held that the taxes there were paid
        under duress because an act of the Commissioner of Insurance
        caused or resulted in an overpayment'of taxes by the'insur-
        ante organization, the payment of which was necessary to
        avoid loss of the right of the insurance company to do
        business in this state. See
                                 --p also Crow,.:y.
                                                  City of Corpus
        Christi, supra.
             In the examples you have given all the payments were
        apparently made not,onlyytb'secure certification, but to
        avoid the legal penalties attached to noncompliance with
        the certification law. You'advise that,boat owners received
        mass mailings from your office which included an official
        letter explaining the certification program, an application
        form for certification, a list of,Water Quality Board district
        offices, a copy of House Bill 1422,,enacting the certification
        law, and a copy of Board Order No. 74-0.521-4,implementing
        the law.
             Boat owners were advised by the letter sent them that
        persons failing to comply with the regulations contained
        in the Order might be found guilty of a misdemeanor and,
        upon conviction, fined from $25 to $200. It has been sug-
        gested that the letters sent were confusing and ambiguous as
        to the boats for which certification was required, the
        particular certifications necessary, the governmental units
        which would perform necessary inspections and make certifi-
        cations, and the fee payments necessary to avoid the penal
        provisions of the law.
             The definition of "duress" as a legal concept -- the
        question of what is necessary to legally constitute "duress" --
        is a question of law. State v. Connecticut General Life
        Insurance Co., supra. But whether or not a particulat
        person in a particular transaction actually acted under
        legal duress, express or implied, is a question of fact.




                                   p. 3518
The ~HonorableHugh C. Yantis, Jr. - page 5 (H-833)


     This office does not decide
                             ._ .disputed
                                    _      questions of fact
in the opinion process , but if the facts are as stated abOW
and if the payments or overpayments described in the four
examples you give actually resulted from a misapprehension
of fact or law induced by the Water Quality Board or from a
threat of penal prosecution upon failure to pay, then the
cited authorities indicate there is pre-existing law to
support refunds of boat certification fees improperly
collected in the manner described.
                       S UM~MARY
            Improperly collected boat certification
            fees may be refunded if payment of the
            fees resulted from a misapprehension
            of fact or law induced by the Water
            Quality Board or from a threat of penal
            prosecution upon a failure to pay.




APPROVED:
                          v    Attorney General of Texas




Opinion Committee
jwb




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