Honorable David P.Bell Opinion No. M-1048

Executive Director Industrial Accident Board Re:Authority of Industrial P. 0. Box 12757, Capitol Station Accident Board tomake Austin, Texas 78711 refunds under H.B. 686, 62ndLeg., R.S., 1971 (Ch. 515,p. 1755). in the situDear Mr. Bell: ations presented.
YOU have requested the opinion of this office regarding the above question. In connection with this request, you have furnished us the following information:

"under H.B. 686, effective July 1, 1971, the Industrial Accident Board is authorized to collect a $7.50 filing fee on each legal entity filing notice of coverage with this agency. Since the inception date of this Bill, numerous situations have arisen wherein this agency has deemed itappropriate tomake refund ofmonies received and accepted by this agency. For example: "1. Notice of coverage is filedwith the Industrial Accident Board accompanied by check for filing feewhich through clerical error is for an amount in excess of that required. Occasionally the check is accepted and deposited before the error isdiscovered. .

“2. Occasionally duplicate payments will be made on the same filing, and accepted and deposited before the error isdiscovered.

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Hon. David P. Bell, page 2 (M-1048)

“3. Notice of coverage filedwith the Industrial Accident Board and through clerical error in issuing the policy, the insurance company must cancel and issue anew policy and therefore, make anew filing with this agency. "4. Notice of coverage on a three year policy is filedwith the Industrial Accident Board with check for $22.50 covering policy period. During first year policy is cancelled flat. "The above examples are not exhaustive, but give a good indication of theproblem athand. Under Examples 1and 2, clearly there isan overpayment which shouldbe refunded. Example,3 results ina double payment because a filing fee is required on the second filing even though covering the same policy period forwhich payment has already been made. Under Example 4 a collection was made for the second and third year, and the policy will notbe ineffect during that period of time. In the event coverage is again taken outby that employer, then an additional fee will be required making a double payment by that employer ifno refund of the prior payments canbe made by this agency."
We find no specific authority in either House Bill 686 or in theworkmen's compensation law (Art.8306, et seq.,V.C.S.) tomake refund of any of the monies paid under the circumstances presented by you. In this connection we note that themonies have been paid into the State Treasury and not into the suspense account maintained in the State Treasurer's office under authority ofArticle 4388,Vernon's Civil Statutes.
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

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refund of taxes or feespaid to the state; these are 1) fraud, 2)mistake of fact, and 3)duress, Attorney General Opinions Nos. O-6282 (1945),O-6974 (1945),and O-7113 (1946). With reference to duress we cite particularly the recent case of State v. Connecticut General Life Insurance Company, 382 S.W.2d 745 (Tex.Sup. 1964). A copy ofAttorney General's Opinion No. 6282, stpra, accompanies our present opinion toyou. Even though the fac,tsmight support a claim for refund under any of these grounds, yet no refundmaybe made unless fundshave been appropriated for that purpose by the Legislature pursuant to Article VIII, Section 6, of our Texas Constitution which reads, in its relevant part,

"Nomoney shallbe drawn from the Treasury but inpursuance of specific appropriation made by law:
. D .I' Whether each claim for refundwhich you mention, and all other claims made toyou, may be approved by you asbeing supported by sufficient facts under any of the recognized grounds for refund is a question fir& foryour determination. At,ty.Genl. Opin. No.M-517 (1969). However, in the absence of an appropriation or statute authorizing such refund payments out of designated funds by the Legislature, you are not authorized tomake any refunds of these fees remitted toyou andby you paid into the S.tate TreasuryD SUMMARY

Erroneous or improper filing fees paid to the Industrial Accident Board under H-B, 686, 62nd Legi,slature,Regular Session, 1.971,and placed in the St,ateTreasury, may notbe refunded in the absence of a specific appropriation by the Legislature of funds for that purpose. tra1y yours,

Att# ney General ofTexas -5121-UHon. David P. Bell, page 4 (M-1048)

Prepared by Malcolm L. Quick Assistant Attorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Sam Jones Marietta Payne RexWhite David Longoria
SAMMCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE FirstAssistant

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