, - 

THEA ORNEY GENERAI. 

OF TEXAS 

WLL WILSON 

A~ORNEY GENERAI, 

AUSTIN 11. TEXAS 

May 6, 1960 

Honorable Robert S. Calvert Opinion No. WW-834 

Comptroller of Public Accounts 

Capitol Station Re: Pre-existing law for 

Austin, Texas payment of various claims 

for reimbursements of fees 

Dear Mr. Calvert: paid to the State of Texas. 

Your request for an opinion of this office reads as 

follows: 

"Attached to this opinion request 

you will find claims for reimbursement 

of fees paid to the State of Texas. 

"Section 44 of Article 3 of our 

State Constitution provides in part 

as follows: 

"'The Legislature---shall not grant--- 

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.' 

"Is there sufficient pre-existing law 

for me to pass the claims for payment?" 

The referenced claims include the following: 

A. 

B. 

C. 

D. 

E. 

Claim by Mr. Bernard F. Adler for Private 

Employment Agency License fee. 

Claim by Miss Charlene N. Ickes for Private 

Employment Agency License fee. 

Claim by Mrs. Nancy Bennett for Private Employment 

Agency License fee, 

Claim by Mrs. W. H. Carver for Real Estate Dealer's 

License fee, issued to W. H. Carver, deceased. 

Claim by Mr. W. E. Hutton--Miller for Securities 

Dealer's Application filing fee. 
Honorable Robert S. Calvert, Page 2 Opinion No. W-834 

F. Claim by Johnnie Curry for Barber's License 

fee. 

We have concluded that there is pre-existing law 

sufficient to support the appropriation for and payment of 

these claims. 

The term "pre-existing law" as used in Art. III, Sec. 

44 of the Constitution has been interDreted to include not 

only statutory law but also common law, where not in conflict 

with our Constitution or statutes. Art. 1, R.C.S.; Austin 

National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 2-34). 

From this rule it has been reasoned that a fee which has been 

paid under (1) fraud, (2) duress, or (3) mistake of fact may 

be recovered. See Attorney General's Opinion No. O-6974 (1945); 

Attorney General's Opinion No. o-6282 (194.5) and authorities 

therein cited. 

A review of the information you have supplied us relating 

to claims A, B, C, and D above enumerated seems to indicate 

that each payment was made under a mistake of fact; that is, 

that the license for which each respective payment was made 

would be used by the applicant. It appears that each such 

license was in fact not used but returned to the issuing agency. 

Likewise, it appears that the payments in claims E and 

F were each made under mistake of fact. In claim E, the applicant 

believed that a certificate, or license, would issue to him, 

and thereupon remitted the fee required for filing the 

application. The certificate was never issued, and hence the 

amount paid as a filing fee should be refunded. 

In claim F, claimant submitted his application for a 

Barber's License, accompanied by the statutory fee, after he 

had been convicted of a felony and while he was in fact serving 

his sentence in the penitentiary. Apparently, the felony 

conviction was of a type which provided grounds for the revocation of or refusal to issue a Barber's License (see Art. 7346, 

sec. 10, P.C.). The license was prepared for issuance, but 

before it was actually sent to claimant his felony conviction 

was discovered. Since payment was remitted upon the premise 

that the license would issue, this fee should be refunded also. 

It is necessarily assumed, for the purpose of this opinion, 

that appropriations sufficient for the payment of the claims 

involved have been duly made by the Legislature, and that the 

only question is whether there was pre-existing law to support 

the appropriations and payment. 
Honorable Robert S. Calvert, Page 3 Opinion No. WW-834 

SUMMARY 

There is sufficient pre-existing law 

to support the appropriationsfor and 

refund of six claims for various fees paid 

the State, each under mistake of fact. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

ames R. Irion 

JRI:cm 

APPROVED: 

OPINION COMMITTEE: 

W, V. Geppert, Chairman 

L, P. Lollar 

Leon F. Pesek 

J. Arthur Sandlin 

Iola Wilcox 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore