November 

### 18,1947

Boa. Jep 3. Fuller Opinion No. 

### V-434 countyAttorney JCffCP8Or2

### county RC: The manner fn which Beaumont, Texas Payment may be made ATTN: Mr. Joe S. Haida, Jr. to the city of Port Arthur of certain funds alleged to have been erroneously paid to the State

Dear Sir: Your request POPan opinion dated September 12, 

### 1947,is as follows:

‘you will recall myconversation with you recently regarding a Pequest of the Attorney General for a ruling on the question whether **or** not the State Treasurer, the St8te Comptroller and/or the Tax Collector o? Jefferson County has the authority to repay to the City of Port Arthur certain funds which have, through error9 been paid to the State.

“Ihave particular reference to taxes remitted to the City of Port Arthur under authority of House Bill 410, Regular Session 

### 49thLegislature, Ch. 

### 353,P. 

### 615Vernons’ Texas Session Lawse A recent Audit has disclosed that no taxes on intangibles have ever been remitted to the City, Contras to the Attorney GeneralIs Ruling (Opinion No. 0-7085, Feb. gth, 

### 1946)on file in your office. Also there have been numberous instances where taxes on rerl estate have not been remitted by reason of various types of errors. In all of these fnstaWes”such taxes have be&mpaid Into the State Treasury.

“It Is the City’s contention that, since these taxes were granted to the City of Port Arthur under authority of the Above Legislatfve. .

**iIOn. JCp**  **s. FUlleF**  **- Page**  2 (No, 

### V-434)

Act to perform a State Function, that is, the construction of Seawalls etc *, there’ should be requlred no further authority on behalf of any State or County offfcia1.s to pay the monies as directed by the Legislature,

“Wewould very muchappreciate your maklug this req,ueat onbehalf of the City.’ I will furnish any additional brFeffng that you mtght consider proper, ” Wefind it necessary to firat examine Opinion 0-7085, dated February 9, 1946, to determine ff it correctly states then’lawD Your opinion request states: “A recefit audit has disclosed that no taxes on intangibles have been remftted to the cfty contrary to the Attorney Qeneralps ~uIlng (Opinion O-7065, February gth, 1946) on file fn your office 0 ’p Our opinion has reference only to taxes assessed 8nd collected under the IntarPgibls Tax Ilw, Chapter 4, Title 122 (Apts07105-7126) VX3. 8nd not to Lntrngibfes that msybe texed outside the scope of Chapter 4, ‘Title 122, such aa debts, stocks, bonds, etc., whfch wy have a t8X8blC sftus within Preefnot No, 2 8s distinguished from the County at 18Pge0

Aehreful study of this opfnion and an **examfna** tion of tkmauthori.%fes convinces us that ft is erroneous and mustbe overruled 9,nsofar aa it applies to t8xeS assessed and collected under the Sntangfble TaxLaw.*Chapter
as Tftle 122P9C.S0 The followfug ruthoritfes makeft quite ckeer that Sntangfble taxes .under the Intangible Tax Laware apportioned to the county at large and wy not be apporticned to the respective polltfcal subdivisions of the County, as here, to the CL,tyof fart Arthur or Commissionergs Ppecim% NC- 2 0C Gefferson County.

Enthe ce8e sf S?XI%vs PecffLc Ra~lwagCompany, 62 3-w*2d $1 {sup, C% Y j we fiAd this language : l’It is qwte tFue.qas contended by cormse:, that in tke fntangible tax law, it provj.fj&j ir, effec$, {Art, ,7X05) thst fntengfble assets maybe taxed for state andcoun_tgwe~,e, and it Is further true Ehat noprovision f ’n that law affotis legfslatfve authority for tte taxing of such assets for any other purpose 2~ f,cr tkiebenefF ~~I-~.-I.x~~~. jd&onOF~aJpe~ :ROW J.p ~..~Ull@P 6 P8#0 3 (NO.V-4349

of the rolling rtoak vhfoh, under tbo provisions 

### ofArtiblivar, 8” fioa 8 

### of Cha Constitution 8ad Of kl%%ola 71 9 Of ~ttlC 88&UtC, W8S 8ppOX’- 

### tiowd bf Chb ltrte ColptPoller to Bl ?rso Couiafyp the r%twl for taxltion pUPposes bdoama **ifsted 18** **’ tWt**  **~OUotj.** The ~~SoU’UpOIl whfeh this conclui~ion fr brdbd'are dubatmtirll~ the 88~8 a8

#8*8, 

### 90 tbo 88aC **oftoet** 4s tha case of Bell Osuott *i. 

### 219 3.13.

### 556 (Cowt of civil Appealr~ Writ of Brror &8%8d), ft’oll

Vtlfob UO 

### quote88 

### follOV~x

n0

. DArtich 7414, Bevised St8tUtO8, pOvidea that~6r)ah %uilvaj aoarpany 'ah811pay io'laXUJBlt8X t0 the ‘8t8tb q D o On ,thCfP iet8lI#%b1, 88BCt8, a a 0ind 10081 taxes theaeon to the obuaties in whiah it8 bU8fllCaaia Caided 00.'~ Ott& plro’dsioruof the strtute provide for 

### l pportionl~- 

### intan&blerrretr 

### tothe Countfeu, andhoWtlrr’8aWe shll'bs 1i8ted on th& t8X Polli of the do&~'4 'IO this vlse~,the IWtuto wker the ‘pier8tr 6f’iaitaziSeatio~ 

### 1,HoUs BFPI410,OPSSCd by the RC@l18P 5*811Oti Of the 49th LO&8l8tUPC Ch- 3'53,9e 615 Of VCZ'OOXt'S 'E8X88S888iOR tV8’ i8 ,b fO11OVlla

%hat ooweaofng with the fiecrl Je8r beglnning beptember 1, 19?!9,8~d 8nd9nl:Au&xat 31, 1961, f there be and hereby 8PQ doarted l Ud gP8sltadby the 3tatc of Tezrs to the 6i.t~of Port Ad2wr, Texas,Ron; Jep S. Fuller - page 4 (No<

### V-434)

Under the express terms of this bill the donstion of eight -ninths r&&h) of the State taxes Is “on all property both real and personal Lrr Commisrionrrs / Precinct No. 2 of Jefferson County, as existed oneZanuary 2, 1945.” Under the construction of the FntangFble tax law applied in the foregoLng authorities, intenaible assets do not constitute property~~~n Commissioners’ Precinct No. 2 of Jefferson County within the purview of sold Hi R. 410: It, therefore, follows thst, no part of the intangible taxes levied, assessed and apportioned to Jefferson County under the Intangible Tax Laware donated to said district as Opinion O-7085 erroneously holds ; to this extent it is expressly overruled e

This leaves only the question embraced In the following part of your opinion request: “Also there have been numerous instances where taxes on real estate have not been remitted by reason of various types of errors, In all of these Instances Treasury”

. such taxes have been paid into the State

You state that aueh taxes have been paid into the State Treasury* The question arises, may they be withdrawn or paid out by the Treasury without a specific appropriation by the Legislature? Wethink Section 

### 6 of Article VIII of the Constitution compels a negative answer, This article and section of the Const,itut.ion provides in part:

“No money sh.aLl be drawn from the Treasury but 1n pursuence of spec?.fic appropriations made by 1swGI’ In the case of Manion VY- Lockhart, i 14 ?.i; 93 

### 216, (Sup 1Ct *), there> as here, the money was E:Jy<)‘lC O’QX i~‘ f paid into the general Fund: In discussing the quest.ion the Court said E

“It is shown that IJesponcient, acting on the opinfon rendered ‘oy the Attorney Genera1 9 deposited this money in the general revenue fund of the State, Respondent has fn no manner profited by such action on his part. He acted in good faith in depositing such money in the general revenue fund, wh%.chnow requires that It be appropriated by the Legislature in accordance with the provisions of Section b of Article VIII, of the Ccnstitutfon: Respondent mot now have in his poeses&?n such funds,rid, ti&ewere, La FB ImaMa, *fitmut an +Jt*s tha'.la~faktu#a, to pay aa- to thoaa ihtitlad

Xt tr undUqwted that ralatoc '?

t8 he )rld’ the bull; of uoar~ olalwl by hii& Zt: La lrdt bhoWt; 'however; that rilator cannot obf;rln t&s m006y due h$m by 8nothaP oemplata and ~ad~uatr~ , .'

..!

t ftauam, tharefora, ~aapaaCfully,~dvised tkak‘a? ' part oi thr LIta Lble tax aollactad In Je~arsoj% aountj WY b. BPPort&O

8% to the city ai Portr.Azmilir or GoRri#sionCPI ’ ?rectwt No. 2 oi’ arid Count). uadrr said Xousi’ Bill 410 a? the 49th Lagllllature. Nor a8y auab~~~taxes donated ‘by, aaLl~bLl1 00 @opavt having a’phfrioal sf.tus..in slid dfstri(lt, but amona- 3 y paid into tha Itate Treasury to the cwdtt of the i3anaral WevenueFund, be rei’uaded to the distriat exoept br a)ioLf’io appropriation by the Legislature.

Hopart of tha &ntangible taxer oolleoted by Jeffercran Oaunty upon lntahgible amets, as.provided ib tha ~ntaaglble Tax Law, maybe apportioned to the CLty of Port Arthur or Cornmissioners 1PreoZact No. 2 of said County under House Bill 410 of

’ tha 49th Leg’fslature* Taxes therein donated arise only fro81 propapty liavfug a situs in the dlatriat, Intangible taxes 

### are apportioned to the ooun%~ at lerge but not to any di&ri.ct of said county. Bell County v. Pines 219 s;K. 556, state v. Paofffc .Reilwa;r . coapany, 62 s-w, Z!d81 (sup. Ct.)*

. If taxes collected upon either real or personal property’locatsd fn the dfatS$at have erroneously been paid into the State Treasury ind credited to the General Fund, they maybe refunded to the distriot’only by specific appropriation madeby the Legislsture. Section
:-

. :Han, Jep S. Fuller - Page 6 (No. V-434)

6 of Article VIII, ConstitutLon of Texas; Manion vs. Lockhart, :I4 sow. 2d 216, (sup. ct.) Yours very truly
ATTORNEY

GENERAL

**OF TEXAS** 

LPL/lh APPROVED: