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THEA ORNEY GENERAI. OF TEXAS

WLL WILSON A~ORNEY GENERAI, AUSTIN 11. TEXAS May 6, 1960
HonorableRobert S. Calvert OpinionNo. WW-834 Comptroller of PublicAccounts Capitol Station Re: Pre-existing law for Austin, Texas payment of various claims for reimbursementsof fees Dear Mr. Calvert: paid to the State of Texas. Your request for an opinion of this office reads as follows: "Attachedto this opinion request

you will find claims for reimbursement of fees paid to the State of Texas. "Section44 of Article 3 of our State Constitutionprovides in part as follows: "'TheLegislature---shallnot grant--- by appropriationor otherwise, any amount of money out of the Treasury of the State, to any individual,on a claim, real or pretended,when the same shallnot have been provided for by pre-existing law.' "Is there sufficientpre-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 CharleneN. 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 OpinionNo. W-834

F. Claim by Johnnie Curry for Barber's License fee. We have concluded that there ispre-existing law sufficient to support the appropriation for and payment of these claims. The term "pre-existinglaw" as used in Art. III, Sec. 44 of the Constitutionhas been interDretedto includenot only statutory law but also common law, where not in conflict with our Constitutionor 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 factmay be recovered. See Attorney General's OpinionNo. O-6974 (1945); Attorney General's Opinion No. o-6282 (194.5) and authorities therein cited. A review of the informationyou have suppliedus relating to claimsA, 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 respectivepaymentwas made would be used by the applicant. It appears that each such licensewas in fact not used but returned to the issuingagency. Likewise, it appears that the payments in claims E and F were eachmade undermistake of fact. In claim E, the applicant believed that a certificate,or license,would issue to him, and thereuponremitted the fee required for filing the application. The certificatewas never issued, and hence the amount paid as a filing fee shouldbe refunded. In claim F, claimant submittedhis application for a Barber's License, accompaniedby the statutory fee, after he had been convictedof a felony and while he was in fact serving his sentence in the penitentiary. Apparently, the felony convictionwas of a typewhich provided grounds for the revocation of or refusal to issue a Barber's License (seeArt. 7346, sec. 10, P.C.). The licensewas prepared for issuance,but before it was actually sent to claimanthis felony conviction was discovered. Since paymentwas remitted upon the premise that the licensewould issue, this fee shouldbe refunded also. It is necessarily assumed, for the purpose of this opinion, that appropriations sufficient for thepayment of the claims involvedhave been duly made by the Legislature,and that the only question is whether therewas pre-existing law to support the appropriationsand payment.HonorableRobert S. Calvert, Page 3 OpinionNo. WW-834

SUMMARY
There is sufficientpre-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