Honorable Bascom Glles 

Commissioner, General Land 

Austin, Texas 

Dear Sir: 

You have requested the opinion of this department upon 

Office 

OpinFon No. C;lq77 

Re: The proper method of handli,ng 

special trust fund under H.B. 

9, 46th Le,glslature, Regular 

Session. 

the proper method of handling by your office of the deposits 

required.to be made under the provisions of R.B. 9, 46th Legislature, by vacancy applicants. 

We quote from your letter as follows: 

'The practice has, heretofore, been to require deposits on all vacancy'appllcations filed 

by 'applicants' In compliance with the above 

provisions and the other portions of House Bill 

No. 9 and the sums thus received have been placed 

_ ln a special account in the Capital National Bank, 

Austin, Texas, designated as 'Bascom Giles, Trustee.' From,thls account the disbursements are 

made, as required under provlsfons of House Bill 

No. 9 and, as a record of same, there is maintained a voucher record and journal showing the 

dlstributlon of the account for each separate 

application. 

"In thus construing House Bill No. 9 and in 

handling this trust fund in the manner s&out 

above, this office was in some measure guided by 

an opinion rendered the Land, Commissioner by the 

Attorney General's Department under date of April 

9, 1930, signed by the Honorable W. W. Caves, 

Assistant Attorney General. This opinion related 

to the $1.00 required by Article 5413, Revised 

Civil Statutes of 1925, to be deposited by each 

applicant for patent and to be paid through tbls 

office to county clerks as patent recording fee. 

"This office would appreciate the benefit of 
Ronorable Bascom Giles, page 2 o-1977 

your opinion on the proper mode of handling 

this special trust fund under the terms of said 

House Bill No. 9 and whether or not the procedure now employed Is correct or whether such deposits, when received, should be transmttted 

to the State Treasurer under terms and provlsions of Senate Bill No. 48 enacted by the 41st 

Legislature as amending Article 4343 of the 

Revised Civil Statutes of 1925." 

The particular deposit about which you inquire in 

your oplnlon request Is provided for in subsection (c) of section 1 of R. B. 9 in the following language: 

"The Commissioner shall notify the applicant 

by letter of the estimate of the cost of proceedings under the application, and, within thirty 

(30) days after the date of such letter, the applicant shall make a deposit with the Commlssloner to 

cov~er costs of all work which may be necessary In 

order to comply with the request contafned in such 

application. Upon failure to make the deposit as 

required, all rights under the application shall 

be lost. In the event such deposit shall prove to 

be insufficient, the applicant shall be requested 

by letter to make a further deposit of a sum to be 

fixed by the Commissioner and, 1f such additional 

deposit be not made withln thirty (30) days after 

the date of such letter, the work shall be discontinued and the application cancelled, and such 

cancellation shall be so endorsed on the application. .Upon cancellation, the right to purchase or 

lease under such application shall be lost. The 

deposits provided for in this Section shall be a 

special trust fund to be used only for the purpose 

authorized by this Act. Provided that the appllcant shall have the right of appeal from the estimate of cost so made by the Commissioner, to the 

District Court of Travis County by giving notice 

to the Commissioner in writing thereof within 

fifteen (15) days after'the receipt of said estimate from said Commisstoner as herein provided. 

And provided that said applicant shall have fifteen 

(15) days after the decision of said District 

Court as to amount In which to make payment thereof.." 

Evidently, the reference contained in your letter to 

S.B. No. 48 of the &l&Legislature, as amending Article 4343 

of the Revised Civil Statutes of 1925, Is erroneous. S.B. No. 

48 of the 41st Legislature is an amendment to Article 377, and 
. - 

Eionorable Bascom Giles, page 3 o-1977 

has reference to what shall be contained in the charters of 

banking corporations. It seems apparent that you intended 

to refer to H. B. 493 ch. 242, Acts of 1931, which is an 

amendment to Article 4388 and other Articles. Article 4388, 

as amended by ch. 242, Acts of 1931, provides as follows: 

"The State Treasurer shall receive daily 

from the head of each department, each of whom 

is specifically charged with the duty of making 

same daily, a detailed list of all persons remitting money the status of which is undetermined. 

or whFch is awaiting the time when it can 

finally be taken Into the Treasury, together 

with the actual remittances whfch the Treasurer 

shall cash and ~place in his vaults or Ln legally 

authorized depository banks, If the necessity arises. 

The report from the General Land Office shall in-~ 

elude all money for interest, principal and the 

leases of school, un~lversltg, asylum and other lands. 

A deposit receipt shall be issued by the Comptroller for the daily total of such remittances 

from each department; and the cashier of the 

Treasurer's Department shall keep a cash book, 

to be called 'suspense cash book,' In which to 

enter these d,eposit receipts, and any others 

issued for cash received for which no deposit 

warrants can be Issued, or when their issuance 

is delayed. As soon 8s the status of money so 

placed with the Treasurer on a deposit receipt 

is determined, It shall be transferred from the 

suspense account by placing the portion of it 

belonging to the State In the Treasury by the lssuance of a deposit warrant, and the part found 

not to belong to the State shall be refunded. 

When deposit warrants are Issued, they shall be 

entered in this cash book, as well as any refunds, 

and the balance shall represent the aggregate 

of the items still in suspense. Refunds shall bye 

made in a manner similar to that in present use, 

except that separate series of warrants shall be 

used for making such refunds, to be called Irefund warrants,' and. such warrants shall be written 

and signed by the Comptroller and countersigned 

by the Treasurer and charged against the suspense 

funds to which they apply. Such warrants shall 

then be returned to the Comptroller and dellvered by him to the persons entitled to receive them." 

It is our opinion that the special trust find provided 

for in H. B. 9, which consists of deposits made by an applicant 
- - 

Honorable Bascom Giles, page 4 o-1977 

to &over the costs of the work which may be necessary Fn order 

to comply with 8 vacancy applFcant's request for a surve ati 

hearing, is not subject to~the provIsIons of Article 438 8 

1s 

as 

amended In 1931. Nor do we believe that such trust fund 

required tb be paid over to or handled by the State Treasurer 

in any manner. The equitable title to such fund remains In 

the vacancy applicant, and such money is only authorized to be 

used by the Commissioner as trustee for the particular purposes authorized by H. B. 9. It is further provided in H. B. 

9 that the Commissioner shall render a complete statement. to 

the applFcant and shall pay over the unused balance of the 

money to the applicant as soon as the total expense properly 

chargeable against the deposit has been determined. 

These provisions seem clearly to provide that the 

fund.in question is to be administered by the.Comm1ssioner as 

trustee for the purposes specified by H. B. 9, and that the 

Commlssloner land not the State Treasurer is charged with retaFning custody of said money and of returning any unused 

balance to the applicant when the ccsts chargeable to the fund 

have been paid. 

Accordingly, it Is our oplnlon that the method you 

have been employing In the handling of these funds Is proper 

and lawful,. and that you are not required or authorized to 

pay over such sums to'the State TreasureF, under the terms 

of any statute. 

: 

Very truly yours 

ATTORNEY GENEZAL OF TEXAS 

By s/Robt. E. Kepke 

Robt. E. Kepke 

Assistant 

REK:RS:wc 

APPROVED MAR 28, 1940 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/%iB Chairman