February Il. 1974 

The Honorable Robert S. Calvert 

Comptroller of Public Accounts 

State ‘Finance Building 

Austin, Texas 

Opinion No. H- 224 

Re: Whether taxes received under 

Article 666-20d (Mixed Beverage 

Tax) are in the State Treasury or 

are held in trust for counties and 

cities. 

Dear Mr. Calvert: 

You have requested our opinion concerning whether taxes received under 

Article 666-20d (Mixed Beverage Tax) are in the State Treasury or are held 

trust for counties and cities. Section (b) of Article 666-20d Penal Auxiliary 

Laws (Texas Liquor Control Act) levys a ten percent gross receipts tax on 

the sales and other transactions of mixed beverage permit,tees and other 

specified licensees. 

Sect,ion (e)(l) provides that the tax be paid to the Alcoholic Beverage 

Commission and that “The Commission shall deposit these receipts in the 

State Treasury to the credit of a special clearance fund to be known as the 

Ivfixed Beverage ‘I& Clearance Fund. ” 

Section (e)( 3) provides: 

“As soon as possible after receipt of each 

quarterl,y report: of the Commission the Compt:roller 

shall issue to each county a warrant drawn on the Mixed 

Beverage Tax Clearance Fund in the amount of fifteen 

percent (15%) of receipts from permittees within the 

county during the quarter, and shall issue to each incorporated city or town a warrant dra\vn on that fund in 

the amount of fifteen percent (15%) of receipts from 

permitteas within the incorporated city or town during 

the quarter, as shown by the Commission’s report. 

The remainder of the receipts for the quarter shall be 

transferred to the General Revenue Fund. ‘I 

p. 1045 
The Honorable R,obert s. Calvert. page 2 (H-224) 

We believe that these stat.utor,y provis,ions manifest a clear legislative 

intent to assign the funds’ to a trust account to be distri~buted by the Comptroller 

in accordance with statut:ory dir:ec.tions and kthout furt.her appropriations. 

A “clearance fund” in Lus,ine,ss tc;rms is an a.ccount used for th,e “adjustment 

of debits and credits” (Webster’s New World Dict:,ionary, Library and Office -_-,.---_-_,--_I__ 

Edition, 1973) ,which denotes the absence of ownership in the hol.der of the 

account; moreover, the directions to th,e Comptroller to first issue a warrant 

of fifteenperce,nr to the c,ities and counties and then to transfer the remainder 

to t.he general revenue fund, which o’bviously implies that the money was not 

previously in the genera.1 revenue fund, support our belief. However, the 

statute does place the funds “in the St:ate Treasur,y. ” and ordinarily this 

requires furt.her appropriation. See Attorney General Opinions H-138 (1973). 

H-154 (1973). 

Your second question, concerning the effect of $ 26, Article V, of 

House Bill 139 (the Appropr,iati,ms Act, 1973) resolves the situation. Section 

26 provides: 

“REFONLIS 0% .DE.PGSI’I’S. Any money deposited 

knto the State Treasury which is subject to refund as 

provided by law shall Lt refunded from the fund 

into which such moneys was deposited, and so much 

as is necessary for said refunds ,is ‘here’by appropriated. ” 

Although these funds are i:n the State Trea,sury, the cit.ies and counties 

where the tax originated are owners t,o the extent of fifteen percent and are 

ent,itled to ha,ve such amour&s refunded. We ho1.d that 5 26 accomplishes this 

and that the monies are appropriated by this provision. 

SU:tiMARY 

-_--- 

F ii’teen perc.ent of the Mixed Drink Beverage 

C?eara.nce Fund estn’blisilrd ‘Lye Artic1.e 666-20d (Texas 

Liquor Control Act:) is owned by ci,ttirs and counties 

where the tax originated a,nd t:he, Compt,roller shou1.d 

p. 1046 
The Honorable Robert S. Calvert, page 3 (H-2.24) 

refund such amounts to the cities and counties under 

5 26, Article V, of H. B. 139 (the Appropriations 

Act, 1973). 

Yours very truly, 

Attorney General of Texas 

Opinion Committee 

p. 1047