THE ATTORNEY GENERAL 

OP'hCXAS 

The Honorable Hugh C. Yantis, Jr. Opinion No. H-833 

Executive Director 

Texas Water Quality Board Re: Whether boat certi1700 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 certification fee fund is "subject to refund as provided by law" in 

four specific situations: 

1. In the instance in which a local governmental 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 

f 

rmitting refunds as provided by law is meant to square 

w th article 3, section '44 of 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 'preexisting 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'insurante organization, the payment of which was necessary to 

avoid loss of the right of the insurance company to do 

business in this state. See also Crow,.:y. City of Corpus 

Christi, supra. 

--p 

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 suggested 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 certifications, 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 ~Honorable Hugh C. 

This office does 

Yantis, Jr. - page 5 (H-833) 

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. 

v Attorney General of Texas 

APPROVED: 

Opinion Committee 

jwb 

p. 3519