                                                                         R-288


                            HE    A%TTOH?NEY           GENERAL
                                       OIF TEXAS

        PRICE   DANIEL
        ATTCIRNEYGENERAL




                  Hon. C. Ii. Cavness          Opinion No. V-143
                  The State Auditor
                  Austin,  Texas               Rc :   Transfer of an anonymous
                                                      debt payment from the Ex-
                                                      ecutive Department Sus-
                                                      pense to the General,Rev-
                  Dear Sir:                           enue Fund.

                            In your letter      of March 24, 1947, you ask the
                  advice of this department      as to the disposition that
                  should be made of $504.00      which has been in the Rxecu-
                  tive Department Suspense      Account since September 12,
                  1939.
                               The facts,   ,briefly summarized from the in-
                  format   ion furnished,    seem to be:
                             This s~.pf    money in currency was received
                  by the Governor wita an anonymous Letter from the send-
                  er that It represented the payment ,,,of, a debt owisn by
                  him to the State of Texas.     (Emphasis supplied,)   It
                  was then determined in conference with a revresenta-
                  tive of the Attorney General’s Office,     the State Aud-
                  ftorss Office,   and the ,State Treasurer,  ta place the
                  money In suspense awaiting further information.      There
                  it has remained for more than seven years without any
                  addit ional informat ion,
                             The only question necessary for us to deter-
                  mine is, does this money really belong to the State?
%,::,   ,,        If it does, then we have no difficulty   in arriving at
                  a legal solution which is simple and practical.
                             The only evidences available   to us as to the
                  character of the fund Is furnished by the anonymous
                  sendt r 0 Re said It was in payment of a debt he owed
                  the Stat,e, and in his use of this language we are just-
                  ified, in assuming that he meant a definite   monetary ob-
                  ligation,  as distinguished  from a gift or donation.
                  This would be the ordinary import of this language, and
Bon, C. H. Cavness,      Page 2, v-143


especially   when accompanied by a sum of money to dls-
charge the debt 0 It is some evidence that the sender
was not making a voluntary gift or donation to the
State, for it Is hardly probable, had this been his
purpose, he would have sent $504,00 instead of $500,
00, We therefore    rule out the posslblllty  that the
sender Intended to make a voluntary gift or donation
to the State merely to gratify    a sense of obligation
for some undisclosed    act of kindness that he may at
some time have received from some agency or Individual
representing   the State,
            Whether this money represents a paymant of
funds that may have been at ~OBGtiac illegally     exacted
from the 3tate by the sender or the paynsnt of a wre
civil  obligation,  such as past due taxes, makes no dlf-
ference Q In either event, the money would belong to
the State, if we accept the statemnt     of the sender as
true, and we know of no reason why we should not-
            Having concluded,  as we have, that this mon-
ey belongs   to the State, the only other question we
taeed dtttmlmz   Is, to what fund should it be credited,
Artfcle   4388, V, Co 9., provides in part as follows:
              ‘As soon as the status of money so placed
        with the Tramsurer on a deposit receipt  is
        determined, it shall be transferred  from the
        suspense account by placing the portion of it
        belonging to the State la the Treasury by the
        issuance af a deposit varrant, and the part
        found not to belong to the State shall be rs-
        funded, ’

           We thirnk a proper construetioa   of the fort-
40ing provision   of Article  4388, as to the meaning of
 the status of the money’ is whether it is State mon-
ey or subject   to be refunded, as it should be if it
does not belong to the State,     We believe a careful
txaminat Ion of                         118 30 Wo 62d)
936 (Austin 6,                       is construction,
From it me quotes
                 'The fund was p1aeed ira the Dsuspen-
        sion account B of the Treasur       by state of-
        f icials     acting under Art Q 43g8 p and can
        only be drawn out of said aecoutd when
        and In the manner prescribed       by said Ar-
        ticle,      -- that is: Bas SOORas the status
.   .




        HOP. C. H. Uavntss,    Page 3, V-143


             of meaeg 80 placed * * * Is determined,
              Quhen it shall be transferred,        if belong-
             ing to the state, by deposit in the Trea-
             sury, aad if found net to belong to the
             state to be ‘refunded. s In either cast
             the method is by warrant signed by the
             Ccbmptroller and countersigned        by the Trea-
             aur4r.    The Article     is explicit    in rt-
             quirlag   the stransfer’ to b made ‘as soon
             aa’ which necessarily        implies ‘not before t
             the ‘status       of the meney Is ‘determined. t
             Clearly thr word ‘status t includes every
             essential    fact to its proper disposition,
             frcm the viewpoint of the Treasurer,           its
             then custodian,        If it should belong to
             the state it must be deposited         in the Trta-
             surg by means of a ‘deposit         warrant. * If
             it does not belong to the state,          it must
             be ‘refunded* by means of a ‘refund war-
             rant a D Ascertainment of the ‘status’ of
             the- money Involves dettr*lnatlen         of the
             proper payee of such ‘refund warrant 0 t
             Ordinarily     ‘refuud’ meana to pay back,
             thus Implying that the payment Is to be
             made to the party from whom received.
             Such party was the Racing Commission, con-
             ctdedly now defunct.        Independently of
             this fact, we think, contextually,          the
             prescribed     ‘refund’ means to the party
             legally   entitled     to demand and rtaelve
             it fror the Treasurer.
                    “(4)   Wnder the Artialt   no right to
             demand the money from the Treasurer could
             properly be asserted until its ‘status ) is
              vdttsrmiaed. ( There can be no serious        ques-
             tion but that ldetermlnedl      in the sense of
             the Article    means judicially   determined.
             In any event, such Is its necessary mean-
             ing where the Treasurer and Comptroller,
             each of whom must act to effectuate        a trans-
             fer of the money, do not voluntarily        assume
             the rts onslbillty    of making such determlna-
             tioa.    F o compel their action a judicial      pro-
             ceeding is essential,     and this means a plen-
             ary and not a mere iattrlooutory       prooeedlng,”
                  The Comptroller and the State Treasurer, es-
        pecially after this long lapse of time, may now deter-
        sine that thla is State menty and transfer It from
Ken, C. H. Cavneas, Page 4, V-143


suspense as provided   in Article    4386, V. 0, 3.
           In the absence of any knowledge aa to the
original  source of this money, it should be placed to
the credit of the Qeneral Fund.



            The Comptroller and State Treasurer
     are authorized to transfer from Suspense
     to the GeneralIFund money received from
     an anonymous sender in payment of a debt
     he asserted he owed the State.    Under the
     circumstances,   it becams State money and
     subject to be transferred   as provided in
     Art lcle 4386 o Daniel v, Richcreek,   118
     3, W. (2d) 935.
                                    Very truly   yours,
                              ATTORNEY
                                     OENERALOFTRXAS




                              APPROVEI)
                                     APR. 15, 1947

                               %L      Qtfii!d
LPL:al ndr smrj               ATTORNEY
                                     OENERAL
