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                    E             RNES         GENERAL
                                       EXAS




Honorable Jesse     James            Opinion No. (M-406)
State Treasurer
Capitol Building                      Re:   Whether the State Trea-
Austin,  Texas                              surer is required to publish
                                            the information   required in
                                            Section 5, Article 4. 08, Texas
                                            Insurance Code, under the
Dear Mr.   James:                           stated circumstances.

          Your request for an opinion involves Section 5 of Article
 4. 08, Texas Insurance Code, which requires that the State Trea-
 surer on or before the first day of September following the re-
 ceiving of the reports    required under Section 4 of said Article,
 shall cause to be published notices based on the information        con-
 tained in such reports.     The State Treasurer   is requested   to
‘cause all items in such reports that are in the sum of $50. 00 or
 more to be published.     Subsection (c) of Section 5 reads,   in part,
 as follows:   “It shall not be obligatory  upon the State Treasurer
 to publish any item of less than Fifty Dollars ($50) in such notice,
 unless the State Treasurer     deems such publication to be in the
 public interest. ‘I

        Your question asks whether the State Treasurer   is re-
quired to publish the information required in Section 5, Article
4.08,  Texas Insurance Code, under the following circumstances:

         “An out of state insurance company has tendered reports
required under the provisions    of Article 4. 08, Texas Insurance
Code, for the years 1965 through 1968, including in such reports
many items over $50. 00 each.      In each instance the subject company
has declined to forward any remittance,      claiming Statutes of
Limitations    as the reason for non-payment.     The current years’
report has been received reporting a total amount in excess of
$24,000.   00, including a great many items over $50. 00. ”




                              -2008-
Honorable    Jesse    James,    page 2 ( M-406)




Article   4. 08,   Section   5, is as follows:

                   “On or before the first day of September
          following the making of such reports under Section
          4, the State Treasurer   shall cause to be published
          notices based on the information   contained in such
          reports and entitled:   “NOTICE   OF CERTAIN     UN-
          CLAIMED     FUNDS HELD AND OWING BY LIFE IN-
          SURANCE COMPANIES.        ” Such a notice shall be
          published once in a newspaper published or having
          a general circulation  in each county of this state
          in which is located the last known address of a
          person appearing to be entitled to such funds. ”

         The above quoted Section 5 does not permit any discretion
on the part of the State Treasurer   with regard to the publication
of the information  required in Section 4 of Article 4. 08.   Said
Section 5 makes it mandatory upon the State Treasurer       to publish
notices based upon the information    contained in the reports re-
quired by Section 4. Therefore,    it is the opinion of this office
that the State Treasurer   must comply with the publication require-
ments of Section 5, Article 4. 08 under the circumstances      outlined.

                               SUMMARY

          When an insurance company complies with Article
          4. 08, Section 4, Texas Insurance Code, the State
          Treasurer    is obligated to publish the notice re-
          quired by Section 5 of 4. 08, even though at the time
          of filing said reports the insurance company denies
          liability for the funds     set out in the report on the
          basis that any claim against the funds are barred by
          the statute of limitations.




                                                    C. MARTIN
                                                 General of Texas




                                   -   2009-
I   .




        Honorable   Jesse’James,   page 3 (M-406)




        Prepared    by Sam Kelley
        Assistant   Attorney General

        APPROVED:
        OPINION COMMITTEE

        Kerns Taylor,    Chairman
        George Kelton,    Vice-Chairman
        Fielding Early
        Camm Lary
        Alan Minter
        Roy Mauer

        W. V. Geppert
        Staff Legal Assistant

        Hawthorne Phillips
        Executive Assistant




                                       - 2010 -
